author: THOMAS, Judge. BRYAN, Judge,

text:
    Crysten Ann MARTIN v. Gary Everett MARTIN.
    2100124.
    Court of Civil Appeals of Alabama.
    July 22, 2011.
    Certiorari Denied Dec. 9, 2011 Alabama Supreme Court 1101277.

      Thomas A. Radney of Radney, Radney & Jackson, L.L.C., Alexander City, for appellant.

      Randall W. Nichols of Massey, Stotser & Nichols, P.C., Birmingham, for appellee.
   THOMAS, Judge.

Crysten Ann Martin (“the wife”) appeals from a judgment of the Lee Circuit Court (“the trial court”) divorcing her from Gary Everett Martin (“the husband”).

Facts and Procedural History

The parties were married on March 28, 2002. The parties have one minor child — a son who was born on May 11, 2004 (“the child”). The husband filed for a divorce on May 1, 2009, claiming incompatibility of temperament and an irretrievable breakdown of the marriage. On June 12, 2009, the wife answered and counterclaimed for a divorce. Additionally, the wife filed a “motion for pendente lite hearing and relief,” requesting temporary custody of the child, child support, possession of the marital residence, and that the husband be required to pay the parties’ debts and obligations pending a final hearing in the divorce action.

The trial court conducted a pendente lite hearing on August 25, 2009. During that hearing, the husband, the wife, and Keela Lee Christopher, the wife’s mother, testified. The wife testified that she had engaged in an extramarital affair with a former coworker. She testified that the affair had lasted for approximately six to eight weeks. The wife testified that she has a degree in marketing and that she works in marketing at Hayley-Redd Development, L.L.C., as well as conducting her own personal photography business. Based on the average combined income from her jobs, the wife testified that she made about $3,500 per month. She opined that it would be best to set up two separate homes for the child, instead of allowing both parties to remain in the marital residence together, because of the arguments and “mood” in the household. The wife testified that the “mood” had been altered because the husband had become angry and unpredictable since filing for divorce. Although she had initially requested possession of the marital residence, she testified that she had arranged free housing for both her and the minor child through her employer.

The wife also testified that she should receive custody of the child because she had been the child’s primary caregiver for the majority of his life. Specifically, she had stayed at home with the child during the first year of his life; she was the only person to ever cut his fingernails or toenails; she bought all the child’s school clothes; and she had relationships with all the child’s friends and their parents. She further testified that she was the parent responsible for keeping the household in order by doing laundry, cooking, and cleaning. In contrast, the wife explained, the husband had been responsible for the garage and exterior of the home, which, she testified, he did not keep clean and upon which he failed to perform normal required maintenance.

Further, the wife testified that the husband was not a bad father and that he had the child’s best interest in mind. However, she had concerns about his parenting ability because, she said, the husband has attention deficit disorder (“ADD”), for which he takes medication. Additionally, she said that the husband typically consumes two to three alcoholic beverages about five nights a week. She testified that the husband was routinely late, and she feared that the child’s routine and structure currently in place would be altered if the husband was awarded custody. Moreover, the wife testified that the husband had been recording her conversations in both the marital home and in her automobile. Specifically, she testified that he had collected over 4,000 hours of recordings, which, she said, he would listen to with headphones while caring for the child.

During the pendente lite hearing, the husband testified that he works at Auburn University in the agronomy and soils department and earns $2,976 per month. He also pays $363.47 per month for health-insurance coverage, which includes coverage for the child. He testified that there was no mortgage on the marital residence because it had been a gift from his parents but that the marital debt consisted of a home-equity line of credit and credit cards solely in his name. The husband testified that the home-equity line of credit had been used to pay off the debt owed on the wife’s automobile, to finance family vacations, and for normal expenses during the marriage. He said that the debt was in his name alone because the wife had filed for bankruptcy in 2002.

He testified that the wife was employed during most of the marriage, although, he said, she took a year off when the child was born and had had short stints of unemployment after being discharged by various employers. He testified that he knows how to wash dishes, to do laundry, and to clean house. Further, the husband testified that he does take medication for his ADD and that he drinks about two to three alcoholic beverages per night.

Additionally, the husband testified that he had been involved in every aspect of the child’s life. He said that he had taken care of the child without the assistance of the wife on several occasions when she was out of town without any problems. Further, he testified that he had taken the child on trips to visit his parents as well as the wife’s parents. The husband testified that he enjoys spending time with the child and that they engage in many outdoor activities together. Moreover, he testified that the wife had attempted to place the child on a schedule and that he had attempted to continue to follow the schedule, although, he said, both parties had strayed from it from time to time. He testified that the wife had expressed a desire to be with the child and to continue caring for him but that he had some doubts as to her parenting capabilities.

The husband requested that the trial court award him custody of the child because he did not feel like the wife was fulfilling her duties as a parent since the time she had engaged in the affair. Specifically, he said, she had been financially irresponsible and inattentive to the child. Additionally, he stated that he had spoken with his employer and that he would be able to take the child to school and pick him up afterwards should he be awarded custody of the child.

Mrs. Christopher, the wife’s mother, testified that both the wife and the husband were able and willing parents who had the child’s best interest in mind. However, she opined that the trial court should award custody to the husband because the wife was “spinning some pretty big tales” and that she “would like [the wife] to get some help” because, she believed, the path the wife was on could affect the child.

On August 26, 2009, after considering the testimony and the exhibits presented at the hearing, the trial court awarded the husband sole pendente lite custody of the child and allowed the wife “reasonable and liberal visitation” with the child. Moreover, the husband was awarded exclusive control of the marital residence pending the divorce trial, and the wife was ordered to vacate the martial residence and to pay $786.00 per month in pendente lite child support.

On June 4, 2010, the trial court conducted a trial regarding the divorce. The parties agreed to incorporate the testimony from the pendente lite hearing into the record. During the trial, the parties and several additional witnesses testified. Golden Jenkins, a licensed counselor, testified that she had met the wife during a parenting class the parties had been mandated to attend. She opined that the wife had a strong desire to be reunited with the child and that she did not have any concerns about the wife’s ability to serve as the child’s caretaker. Jenkins said that she had met the husband only briefly, but, she said, during that brief meeting, she did not observe anything that gave her cause to doubt the husband’s ability to care for the child. However, she testified that, based on information the wife had shared with her about the husband, she did have some concerns about his parenting abilities. It was undisputed that the husband did not complete the mandated parenting class during the pendency of the divorce action.

Janet Johnson, the principal of the child’s school, also testified at trial. She testified that the child had been tardy 13 times since the husband had been awarded sole pendente lite custody. Johnson testified that the wife was active at the child’s school and had visited him numerous times during the lunch hour. Johnson further testified that the child never came to school unprepared, dirty, or malnourished.

Dr. Larry Estep, the husband’s doctor, testified that he had been treating the husband’s ADD for the last three years. He stated that the ADD was fully controlled by medication. Further, he testified that moderate drinking, such as two to three alcoholic beverages per night, in conjunction with taking the husband’s prescribed dosage of medication, was not harmful. Additionally, Dr. Estep opined that he had not observed any behavior in the last three years that would limit the husband’s ability to function as a good parent.

During the trial, three of the wife’s former coworkers testified. Justin Smith testified that he had engaged in an affair with the wife when she worked with him at Kinnucan Enterprises, Inc. He stated that the affair had lasted from the middle of March until the end of May 2009 and that they had rekindled their relationship sometime in the fall of 2009. He also testified that the wife had given him monetary gifts totaling approximately $1,000. However, he stated that he had repaid some, but not all, of that money. Smith opined that the husband had taken care of the child when the wife was spending time with him throughout the affair. Robert Charles Lake testified that he had worked with the wife when she was a Kinnucan’s employee. Lake works at Kinnucan’s as a controller. He testified that the wife did not always tell the truth and that he could recall several times when her version of events did not align with his recollection of the same events. Additionally, Travis Scott Denley testified that he had worked in constant contact with the wife while Kinnucan’s employed her. Denley testified that the wife had a strong work ethic but that she was extremely manipulative. He further testified that she had lied about situations and that she was flirtatious with several people at Kinnucan’s. The former coworkers also testified that the wife’s employment at Kinnucan’s had been terminated, but all three refused to testify as to the reasons because of the wife’s claim filed with the Equal Employment Opportunity Commission and the confidential settlement agreement regarding that claim.

The husband and the wife also testified at the trial. The husband opined that it was in the child’s best interest to award him sole physical custody. He testified that the wife focused more on herself and her own materialistic needs than on the needs of the child. He also testified that the wife lies and manipulates. Further, the husband testified that the only assets the parties had were the marital residence, which the husband’s parents had given to the parties as a gift, the wife’s Ford 500 automobile, the husband’s Chevrolet Tahoe automobile, and various items of personal property. The husband testified that the parties had $47,500 of debt in the form of a home-equity line of credit. Further, he testified that the only other marital debt was a credit card with a balance of around $3,000 or $4,000. He opined that his portion of the marital debt was only $12,000. The husband also testified that he had spent $17,000 on legal fees during the pen-dency of the divorce action.

In contrast, the wife testified that she should be awarded sole physical custody. She expressed her desire to care for the child. Further, she admitted to writing checks that were drawn on the home-equity line of credit, which was in the husband’s name. However, she testified that the cheeks were used for normal marital expenses and not her own benefit. She also testified that the Ford 500 automobile she drives was worth approximately $7,000. Additionally, the wife testified that the marital residence had an assessed value of approximately $191,000. The wife also testified that she had sold her home and had contributed the sale proceeds of roughly $20,000 to pay off marital debt and to furnish the marital residence.

After considering all the testimony from the pendente lite hearing and the trial, the trial court entered a judgment divorcing the parties on June 25, 2010. The judgment also granted the parties joint legal custody of the child and awarded sole physical custody of the child to the husband. Further, the wife was ordered to continue paying child support in the amount of $786 per month. The judgment also divided the marital property as follows: the husband was awarded all right, title, and interest in the marital residence; the husband was awarded possession of the Chevrolet Tahoe automobile; the husband was ordered to assume all liability on the home-equity line of credit and the credit card; the wife was awarded possession of the Ford 500 automobile; the wife was ordered to contribute $10,000 to the parties’ marital debts; and the wife was ordered to pay $10,000 toward the husband’s attorney fees.

On July 22, 2010, the wife filed a motion to alter, amend, or vacate the trial court’s judgment. The motion was denied by operation of law. The wife timely appealed to this court.

Issues

The wife raises three issues on appeal: (1) whether the trial court erred in awarding the husband sole physical custody of the minor child; (2) whether the trial court exceeded its discretion in its division of the marital property; and (3) whether the trial court exceeded its discretion in the award of attorney fees.

Standards of Review

“Alabama law gives neither parent priority in an initial custody determination. Ex parte Couch, 521 So.2d 987 (Ala.1988). The controlling consideration in such a case is the best interest of the child. Id. In any case in which the court makes findings of fact based on evidence presented ore tenus, an appellate court will presume that the trial court’s judgment based on those findings is correct, and it will reverse that judgment only if it is found to be plainly and palpably wrong. Ex parte Perkins, 646 So.2d 46 (Ala.1994). The presumption of correctness accorded the trial court’s judgment entered after the court has heard evidence presented ore tenus is especially strong in a child-custody case. Id.”

Ex parte Byars, 794 So.2d 345, 347 (Ala.2001).

“When the trial court fashions a property division following the presentation of ore tenus evidence, its judgment as to that evidence is presumed correct on appeal and will not be reversed absent a showing that the trial court exceeded its discretion or that its decision is plainly and palpably wrong. Roberts v. Roberts, 802 So.2d 230, 235 (Ala.Civ.App.2001); Parrish v. Parrish, 617 So.2d 1036, 1038 (Ala.Civ.App.1993); and Hall v. Mazzone, 486 So.2d 408, 410 (Ala.1986). A property division is required to be equitable, not equal, and a determination of what is equitable rests within the broad discretion of the trial court. Parrish, 617 So.2d at 1038.”

Stone v. Stone, 26 So.3d 1232, 1236 (Ala.Civ.App.2009).

“Whether to award an attorney fee in a domestic relations action is a matter within the sound discretion of the trial court and, absent an abuse of that discretion, a trial court’s ruling will not be reversed.” Thompson v. Thompson, 650 So.2d 928, 931 (Ala.Civ.App.1994).

Analysis

I. Custody Determination

The wife argues on appeal that the trial court erred by awarding the husband sole physical custody of the child because, she asserts, evidence admitted at trial established that the wife had been the child’s primary caregiver and awarding her sole physical custody would be in best interest of the child.

“When the trial court makes an initial custody determination, neither party is entitled to a presumption in his or her favor, and the ‘best interest of the child’ standard will generally apply.” Steed v. Steed, 877 So.2d 602, 604 (Ala.Civ.App.2003) (citing Nye v. Nye, 785 So.2d 1147 (Ala.Civ.App.2000)).

“In Ex parte Devine, 398 So.2d 686, 696-97 (Ala.1981), the Alabama Supreme Court set forth a list of factors a trial court may consider in making an initial award of custody based on the best interest of the children, including
“ ‘[t]he sex and age of the children ...; ... the characteristics and needs of each child, including their emotional, social, moral, material and educational needs; the respective home environments offered by the parties; the characteristics of those seeking custody, including age, character, stability, mental and physical health; the capacity and interest of each parent to provide for the emotional, social, moral, material and educational needs of the children; the interpersonal relationship between each child and each parent; the interpersonal relationship between the children; the effect on the child of disrupting or continuing an existing custodial status; the preference of each child, if the child is of sufficient age and maturity; the report and recommendation of any expert witnesses or other independent investigator; available alternatives; and any other relevant matter the evidence may disclose.’ ”

Williams v. Williams, 75 So.3d 132, 139 (Ala.Civ.App.2011).

The wife argues that, because evidence presented at trial established that the wife had been the child’s primary caregiver, she should have been awarded sole physical custody of the child. The wife also highlights the fact that she was the parent responsible for setting up the child’s home environment and keeping the home clean and safe for the child. Further, testimony at trial established that the wife had been the party responsible for placing the child on a routine, which the husband still attempts to follow. Additionally, it was undisputed that the husband failed to attend the mandated parenting class.

Although that evidence could have supported an award of sole physical custody to the wife, the trial court heard other evidence that supported a finding that the best interest of the child would be served by awarding the husband sole physical custody of the child. For example, the wife’s mother opined that the husband should be awarded custody because the wife was “spinning some big tales” and, she believed, the wife’s behavior could eventually affect the child. Further, two of the wife’s former coworkers testified that the wife was known to lie and manipulate. Additionally, the wife testified that the husband was a good parent and that he had the child’s best interest in mind.

Accordingly, we conclude that the portion of the trial court’s judgment awarding the husband sole physical custody of the child is supported by the evidence and is due to be affirmed.

II. Property Division

The wife argues on appeal that the trial court exceeded its discretion in its division of marital property. More specifically, she asserts, the trial court erred in awarding the husband all right, title, and interest in the marital residence. We agree.

“The law is clear that matters such as alimony and property division pursuant to divorce rest soundly within the discretion of the trial court and will not be disturbed on appeal except where such discretion was palpably abused. Montgomery [v. Montgomery, 519 So.2d 525 (Ala.Civ.App.1987) ]. The issues concerning alimony and the division of property are interrelated, and in determining whether the trial court abused its discretion as to either of those issues, the entire judgment must be considered. Montgomery, supra. Many factors, including the conduct of the parties regarding the cause of the divorce, are proper to consider in making an equitable division. Lutz v. Lutz, 485 So.2d 1174 (Ala.Civ.App.1986). The award is not required to be equal, but must be equitable in light of the evidence, and what is equitable rests within the sound discretion of the trial court. Ross [v. Ross, 447 So.2d 812 (Ala.Civ.App.1984) ]. An award that favors one party over the other is not in and of itself an abuse of discretion. Jordan v. Jordan, 547 So.2d 574 (Ala.Civ.App.1989).”

Boykin v. Boykin, 628 So.2d 949, 952 (Ala.Civ.App.1993).

Moreover, this court has stated that

“[t]he factors the trial court should consider in dividing the marital property include ‘the ages and health of the parties, the length of their marriage, their station in life and their future prospects, their standard of living and each party’s potential for maintaining that standard after the divorce, the value and the type of property they own, and the source of their common property.’ Covington v. Covington, 675 So.2d 436, 438 (Ala.Civ.App.1996).”

Courtright v. Courtright, 757 So.2d 453, 456 (Ala.Civ.App.2000). “Also, where there are minor children to sustain and rear, the well-being of the children is an important consideration.” Mack v. Mack, 389 So.2d 1156, 1159 (Ala.Civ.App.1980) (citing Ray v. Ray, 379 So.2d 627 (Ala.Civ.App.1980), and Bailey v. Bailey, 345 So.2d 304 (Ala.Civ.App.1977)). Further, “[i]n examining whether the trial court’s property division amounts to an abuse of its discretion, the proper question to be resolved is whether the property division was equitable under the facts of the case.” Sumerlin v. Sumerlin, 964 So.2d 47, 49 (Ala.Civ.App.2007) (citing Golden v. Golden, 681 So.2d 605 (Ala.Civ.App.1996)).

The wife argues that the trial court erred in awarding the husband all right, title, and interest in the marital residence because the marital residence was a gift to the couple from the husband’s parents. The husband’s parents deeded the marital residence to the parties as joint tenants with the right of survivorship. It was undisputed that the husband’s parents gave the parties the marital residence as a gift, during the course of the marriage.

The trial court’s judgment does not indicate its reasons for awarding the husband all right, title, and interest in the marital residence. However, the husband’s brief to this court indicates that awarding any interest in the marital residence to the wife would give her a “windfall” from a gift that was intended for the parties to use only as a marital home. Further, the husband’s brief draws parallels to the supreme court’s decision in Ex parte Bland, 796 So.2d 340 (Ala.2000). In Ex parte Bland, our supreme court reversed a decision of this court, which had reversed a trial court’s property division, because this court had concluded that funds inherited by the husband were used for the common benefit of the parties and, therefore, that, pursuant to § 30-2-51 (a), Ala. Code 1975, those funds were to be divided between the parties. Bland v. Bland, 796 So.2d 335 (Ala.Civ.App.1999). Thus, Ex parte Bland focuses on inherited funds, which were part of the husband’s separate estate, that were used for the common benefit of the parties and whether, under the facts of that case, the trial court should have equally divided those funds. However, this case is unlike Ex parte Bland because it does not involve any inherited property or require application of § 30-2-51(a), Ala.Code 1975; instead, this case involves a gift to the parties jointly during the course of their marriage. Therefore, the husband’s emphasis on Ex parte Bland is misplaced.

Essentially, in this case, the trial court divided the marital debt and awarded the only substantial marital asset, the marital residence, to the husband, although it was undisputed that the marital residence was a gift to both parties. In light of the fact that this asset was a gift given to the parties during the course of the marriage, we agree with the wife that the trial court erred in awarding the husband all right, title, and interest in the marital residence. See Mayhann v. Mayhann, 820 So.2d 836, 839 (Ala.Civ.App.2001) (reversing a property division because the award of property was inequitable and left the wife nothing but an automobile, a bedroom suite, and cookware and china); Stewart v. Stewart, 62 So.3d 523, 530 (Ala.Civ.App.2010) (reversing a property division because the inequitable distribution of assets, in comparison to marital debts, left the wife with nothing from the distribution); and Childree v. Childree, 831 So.2d 635, 639 (Ala.Civ.App.2002) (holding that the inequity of the property division and alimony award required reversal).

The evidence concerning the value of the marital property indicated that the marital residence had an assessed value of $191,000 and, based on the wife’s testimony, that the value of the Ford 500 automobile was approximately $7,000. There was no testimony as to the value of the Chevrolet Tahoe or the value of the parties’ personal property. The evidence submitted at trial established that the marital debt totaled approximately $51,000 and that the debt was in the form of a home-equity line of credit with a balance of $47,500 and a credit card with a $3,000 to $4,000 balance. Therefore, the marital home was the only substantial asset of the marriage. The husband was awarded all right, title, and interest in the marital residence worth approximately $191,000. Additionally, the husband was ordered to assume roughly $40,000 in debt. In contrast, the wife was awarded an automobile worth $7,000 and was required to take on $10,000 in debt. This award of assets cannot be considered equitable under the circumstances of this case, even in light of the wife’s admitted extramarital affair.

We conclude that we must reverse the trial court’s property division because of the inequity of the award. On remand, the trial court is instructed to adjust the property division as it considers appropriate in light of the fact that the marital residence was a gift to both parties and, thus, was marital property and not the sole property of the husband.

III. Attorney Fees

Finally, the wife argues that, considering the relatively equal incomes of the parties, and the lack of testimony regarding the husband’s need for an award of an attorney fee, the trial court erred in its attorney-fee award of $10,000 to the husband. It is without question that the trial court has wide discretion in awarding attorney fees to parties in a divorce proceeding. Hansen v. Hansen, 401 So.2d 105, 107 (Ala.Civ.App.1981).

“Whether to award an attorney fee in a domestic relations case is within the sound discretion of the trial court and, absent an abuse of that discretion, its ruling on that question will not be reversed. Thompson v. Thompson, 650 So.2d 928 (Ala.Civ.App.1994). ‘Factors to be considered by the trial court when awarding such fees include the financial circumstances of the parties, the parties’ conduct, the results of the litigation, and, where appropriate, the trial court’s knowledge and experience as to the value of the services performed by the attorney.’ Figures v. Figures, 624 So.2d 188, 191 (Ala.Civ.App.1993). Additionally, a trial court is presumed to have knowledge from which it may set a reasonable attorney fee even when there is no evidence as to the reasonableness of the attorney fee. Taylor v. Taylor, 486 So.2d 1294 (Ala.Civ.App.1986).”

Glover v. Glover, 678 So.2d 174, 176 (Ala.Civ.App.1996).

We pretermit discussion of the husband’s $10,000 attorney-fee award. In this case, the results of the litigation are undetermined because this court has reversed the property division and remanded the case for further consideration. Thus, the outcome of the litigation and the financial obligations of the parties are dependent on the trial court’s actions on remand. Accordingly, we reverse the attorney-fee award and direct the trial court to further evaluate this issue.

Conclusion

Accordingly, we affirm the judgment of the trial court insofar as it awarded the husband sole physical custody of the child; we reverse the judgment of the trial court insofar as it awarded the husband all right, title, and interest in the marital residence, divided the parties’ marital debts, and awarded the husband $10,000 in attorney fees; and we remand the cause to the trial court with instructions to reconsider the property division and attorney-fee award.

The husband requests the award of an attorney fee on appeal. We deny the husband’s request.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

THOMPSON, P.J., and PITTMAN and MOORE, JJ., concur.

BRYAN, J., concurs in part and concurs in the result, with writing.

BRYAN, Judge,

concurring in part and concurring in the result.

I concur in the main opinion insofar as it affirms the judgment of the trial court regarding custody of the child and insofar as it pretermits discussion of the award of an attorney’s fee to the husband. I concur in the result of the main opinion insofar as it reverses that part of the divorce judgment regarding the division of marital property and debts. The trial court is free to consider the conduct of the wife, Crys-ten Ann Martin, in making a division of marital property and debt that favors the husband, Gary Everett Martin. See Brown v. Brown, 26 So.3d 1210, 1221 (Ala.Civ.App.2007) (holding that the trial court may consider the husband’s admitted acts of adultery when making a property division and affirming a division of marital property that awarded the husband only 22.4% of the martial assets). However, I agree that the trial court’s division of property and allocation of debt in this particular case was inequitable, especially considering that the division of property in the divorce judgment resulted in a negative property award to the wife.

      . The trial court had ordered that the marital home be sold and that the husband be awarded the first $76,000 of the proceeds from the sale, with the remaining proceeds to be split equally between the parties, because the husband had contributed $76,000 of his inheritance to purchase the home. Ex parte Bland, 796 So.2d at 344.


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    Joseph T. HUNT v. FEDERATED FINANCIAL CORPORATION OF AMERICA.
    2090973.
    Court of Civil Appeals of Alabama.
    July 22, 2011.
    Rehearing Denied Oct. 14, 2011.
    Certiorari Denied Dec. 9, 2011 Alabama Supreme Court 1110113.

      Bradley E. Byrne, Jr., Legal Services Alabama, Inc., Birmingham, for appellant.
    Barry A. Friedman of Barry A. Friedman & Associates, P.C., Mobile, for appel-lee.
   MOORE, Judge.

Joseph T. Hunt appeals from a judgment of the Jefferson Circuit Court (“the trial court”) in favor of Federated Financial Corporation of America (“FFCA”). We affirm the trial court’s judgment.

Procedural History

On June 28, 2009, FFCA, which had allegedly been assigned a credit-card debt owed by Hunt, filed a complaint alleging that Hunt owed $19,796.57 plus accrued interest on that credit-card account and seeking a judgment in that amount against Hunt. Hunt filed an answer to the complaint on August 14, 2009. Following a trial on April 7, 2010, the trial court entered a judgment on April 9, 2010, in favor of FFCA and against Hunt in the amount of $34,113.24, including court costs. Hunt filed a motion to alter, amend, or vacate the trial court’s judgment on May 10, 2010; the trial court denied that motion on June 2, 2010. On July 13, 2010, Hunt filed his notice of appeal to this court.

Facts

Hunt testified that he filled out an application for a MasterCard Executive business credit card from Advanta Bank Business Corporation (“Advanta”) and that he was approved for the card. Hunt stated that he used the credit card, that he received monthly statements on the credit card, and that he made payments toward the amounts owed on the credit card. He testified that there came a time when he was unable to make the monthly payments. He testified that he paid $571 on April 25, 2006, but he was not sure if that was the last payment he was able to make on the account.

Hunt did not dispute the balance of a credit-card statement showing that the amount due thereon was $19,796.57. He testified that he thought that the debt had been forgiven because he was unable to pay it. He testified that he had received a document stating that the debt had been forgiven. Specifically, Hunt stated that he thought he had received a notice in 2006 or 2007 that confirmed that the debt had been written off and that that was his understanding, although he also testified that he did not have that documentation. He testified that he never received anything more regarding the credit card from Advanta or from anyone else after that time. He testified that he was not familiar with FFCA.

Justin Owen, a manager in the collections department for FFCA, testified that he was personally familiar with the books and records of FFCA with respect to the debt owed by Hunt. He testified that FFCA purchased Hunt’s debt from Advan-ta. FFCA presented a copy of a document entitled “Contractual Forward Flow Bill of Sale and Assignment,” which was signed by the vice president and treasurer of Advanta and dated February 14, 2007; that document evidenced a transfer of debts from Advanta to FFCA. Owen stated that FFCA had purchased a portfolio of debts from Advanta on December 15, 2006, and that the “Contractual Forward Flow Bill of Sale and Assignment” evidenced that FFCA now owned those debts. Owen also testified that Hunt’s account had been assigned to FFCA on February 14, 2007, in accordance with the transfer from Ad-vanta. FFCA presented an account-sheet history indicating that the balance of Hunt’s debt was $19,796.57. Owen testified that he had reviewed Hunt’s statements in FFCA’s records and that those statements revealed a balance of $19,796.57. He testified that interest had accrued on that balance and that the total due at the time of the trial was $30,919.20.

Discussion

Hunt asserts on appeal that the trial court erred in finding FFCA’s evidence of assignment sufficient to establish standing to collect on Hunt’s alleged debt. Specifically, Hunt asserts that FFCA’s evidence of assignment was insufficient because, he says, that evidence did not identify the purchase of Hunt’s individual account from Advanta.

“Because the circuit court received evidence ore tenus, our review is governed by the following principles:
“ ““ “[W]hen a trial court hears ore tenus testimony, its findings on disputed facts are presumed correct and its judgment based on those findings will not be reversed unless the judgment is palpably erroneous or manifestly unjust.” ’ ” Water Works & Sanitary Sewer Bd. v. Parks, 977 So.2d 440, 443 (Ala.2007) (quoting Fadalla v. Fadalla, 929 So.2d 429, 433 (Ala.2005), quoting in turn Philpot v. State, 843 So.2d 122, 125 (Ala.2002)). “ ‘The presumption of correctness, however, is rebuttable and may be overcome where there is insufficient evidence presented to the trial court to sustain its judgment.’ ” Waltman v. Rowell, 913 So.2d 1083, 1086 (Ala.2005) (quoting Dennis v. Dobbs, 474 So.2d 77, 79 (Ala.1985)). “Additionally, the ore tenus rule does not extend to cloak with a presumption of correctness a trial judge’s conclusions of law or the incorrect application of law to the facts.” Waltman v. Rowell, 913 So.2d at 1086.’
“Retail Developers of Alabama, LLC v. East Gadsden Golf Club, Inc., 985 So.2d 924, 929 (Ala.2007).”

Bond v. Estate of Pylant, 63 So.3d 638, 643-44 (Ala.Civ.App.2010).

In the present case, the burden was on FFCA to prove that Hunt’s account had been assigned to FFCA. See Auerbach v. Pritchett, 58 Ala. 451 (1877). Hunt cites MBNA America Bank, N.A. v. Nelson, 15 Misc.3d 1148(A), 841 N.Y.S.2d 826 (table) (N.Y.Civ.Ct.2007) (unpublished opinion), for the following proposition:

“It is the ‘assignee’s burden to prove the assignment’ and ‘an assignee must tender proof of assignment of a particular account or, if there were an oral assignment, evidence of consideration paid and delivery of the assignment.’ [Citibank (South Dakota), N.A. v. Martin, 11 Misc.3d 219, 227, 807 N.Y.S.2d 284 (N.Y.Civ.Ct.2005).] Such assignment must clearly establish that Respondent’s account was included in the assignment. A general assignment of accounts will not satisfy this standard and the full chain of valid assignments must be provided, beginning with the assignor where the debt originated and concluding with the Petitioner.”

In Nelson, Nelson entered into a contract with MBNA America Bank, N.A., for a revolving credit-card debt and used that credit line for purchases and/or cash advances; a dispute later arose regarding Nelson’s obligation to repay the debt generated under the credit-card account, and MBNA attempted to submit the dispute to arbitration. Id. The question whether Nelson’s debt had been assigned was not directly at issue in Nelson; however, we note that the court in Nelson indicated that an affidavit from someone with knowledge of the policies, procedures, and practices of MBNA would have been sufficient to prove that Nelson had received notice of the terms and conditions of the credit account that required the parties to arbitrate any disputes. Id. Applying that reasoning to the present case, the testimony of someone with knowledge of the policies, procedures, and practices of FFCA would be sufficient to prove the chain of assignment of Hunt’s debt.

FFCA presented as evidence the “Contractual Forward Flow Bill of Sale and Assignment,” which evidenced a transfer of debts from Advanta. FFCA also presented as evidence a history of Hunt’s account from FFCA’s notes, which indicated that Hunt’s account was a “new assignment” on February 14, 2007, the same date the “Contractual Forward Flow Bill of Sale and Assignment” was executed. Owen, an employee of FFCA, testified that Hunt’s debt was purchased from Advanta as part of the portfolio of debts that was transferred to FFCA on February 14, 2007. Although the trial court did not make specific findings of fact, this court will presume that the trial court made those findings necessary to support its judgment. See Fuller v. Fuller, 991 So.2d 285, 287 (Ala.Civ.App.2008). Because the trial court entered a judgment in favor of FFCA, we presume that the trial court found that FFCA had been assigned Hunt’s debt from Advanta. Hunt failed to present evidence rebutting Owen’s testimony evidencing that FFCA had been assigned his debt from Advanta.

Hunt cites a number of cases from foreign jurisdictions for the proposition that “documentation specifically relating to Defendant’s account is always needed to prove assignment to an entity now claiming any ownership and right to sue.” See Unifund CCR Assignee of Providian v. Ayhan, 146 Wash.App. 1026 (2008) (unpublished opinion; not reported in P.3d); and In re Kendall, 380 B.R. 37 (Bankr.N.D.Okla.2007). In Ayhan, an agent of the assignee submitted an affidavit stating that the assignee had purchased Ayhan’s debt; because the agent attested to a sale date of the debt that conflicted with the sale date that appeared on the “Bill of Sale” submitted by the assignee, the court in that case determined that the assignee had not proved that the debt had been assigned. 146 Wash.App. 1026.

In In re Kendall, the court determined that the alleged assignee of the debtor’s credit-card debt had failed to establish a chain of title of the debt between the original creditor and the assignee. 380 B.R. at 46-47. In that case, however, unlike the present case, the assignee failed to present a witness who could testify that the debt had been assigned to the assignee and documentation evidencing that assignment. Id.

Hunt cites Nyankojo v. North Star Capital Acquisition, 298 Ga.App. 6, 679 S.E.2d 57 (2009), which, he asserts, closely mirrors the facts of this case. In Nyankojo, the Georgia Court of Appeals determined that an affidavit by the chief executive officer of the assignee of the debt constituted inadmissible hearsay because, it concluded, the chief executive officer lacked personal knowledge of the facts and testified in his affidavit only to the contents of business records without presenting the records themselves. 298 Ga.App. at 10, 679 S.E.2d at 60. In the present case, however, Owen testified that he was personally familiar with the books and records of FFCA with respect to Hunt’s account. Thus, Nyankojo is distinguishable from the present case because Owen, in testifying to the assignment of Hunt’s debt to FFCA, possessed the personal knowledge that the chief executive officer in Nyankojo lacked.

In National Check Bureau, Inc. v. Ruth, (No. 24241, Aug. 19, 2009) (Ohio Ct.App. 2009) (unpublished opinion), also cited by Hunt, the alleged assignee of Ruth’s debt failed to produce Ruth’s original credit-card application and the parties disagreed as to Ruth’s original creditor; thus, the Ohio Court of Appeals determined that the alleged assignee had failed to demonstrate a chain of title of Ruth’s debt. Id. In the present case, FFCA submitted a copy of Hunt’s credit-card application and Hunt testified that he had submitted the same. We conclude, therefore, that the present case is also distinguishable from Ruth.

Because FFCA met its burden of proving that Hunt’s Advanta account had been assigned to FFCA and because Hunt failed to rebut FFCA’s showing, we affirm the trial court’s judgment in favor of FFCA.

Because we have elected to decide this case on the merits of the appeal, we deny FFCA’s “Motion for Relief, Motion to Take Judicial Notice Pursuant to Alabama Rules of Evidence 201, and Motion to Dismiss Appeal.”

AFFIRMED.

THOMPSON, P.J., and PITTMAN, BRYAN, and THOMAS, JJ., concur.

      . Rule 59(e), Ala. R. Civ. P., requires that a motion to alter, amend, or vacate be filed within 30 days after the entry of the judgment. In the present case, because the last day of the designated filing period was May 9, 2010, a Sunday, the period for filing ran until the following Monday, May 10, 2010. See Rule 6, Ala. R. Civ. P. Thus, Hunt’s motion was timely.

      . Hunt's credit-card application with Advanta was admitted into evidence.

      . We note that Hunt objected to the admission of Owen’s testimony regarding the assignment of Hunt’s debt to FFCA and to the admission of the "Contractual Forward Flow Bill of Sale and Assignment” and Hunt's account-history sheet during the trial. Hunt has failed, however, to raise the appropriateness of the admission of that testimony and those documents before this court; thus he has waived that issue on appeal. See Lorren v. Agan, 960 So.2d 685, 689 (Ala.Civ.App.2006).


author: THOMPSON, Presiding Judge.

text:
    Brian C. SMITH v. N. Laquetta SMITH.
    2100397.
    Court of Civil Appeals of Alabama.
    July 29, 2011.
    Certiorari Denied Dec. 9, 2012 Alabama Supreme Court 1101342.

      Nancy S. Gaines of Gaines & Gaines, L.L.C., Magnolia Springs, for appellant.

      Submitted on appellant’s brief only.
   THOMPSON, Presiding Judge.

Brian C. Smith (“the father”) and N. Laquetta Smith (“the mother”) have been before this court on three previous occasions. See Smith v. Smith, 836 So.2d 893 (Ala.Civ.App.2002); Smith v. Smith, 866 So.2d 588 (Ala.Civ.App.2003); and Smith v. Smith, 928 So.2d 287 (Ala.Civ.App.2005).

In May 2009, the mother filed a modification petition in which she sought, in pertinent part, an award of postminority support for the parties’ daughter, who was a minor at the time the petition was filed. The trial court conducted an ore tenus hearing and, on October 12, 2010, entered a judgment in which it, among other things, fashioned a postminority-support award. The father filed a postjudgment motion, and the trial court entered an order modifying the October 12, 2010, judgment as to matters not relevant to the issue on appeal. The father timely appealed.

The parties’ daughter was 19 years old at the time of the September 2010 hearing on the mother’s petition, and she was attending her freshman year at Birmingham-Southern College (“BSC”), a private college. The father testified that the daughter had chosen to attend BSC without consulting him. The father stated that the daughter had good grades in high school, and he did not dispute her aptitude for college. The father’s issue with the college selected by the daughter was that it did not allow the daughter to take full advantage of the “PACT plan” purchased for the daughter by her maternal grandmother before the parties divorced. Under the PACT plan, the daughter’s tuition and fees at any number of public universities in Alabama would be paid by the State. However, although the PACT plan does contribute toward the daughter’s tuition and fees at BSC, it is undisputed that the daughter’s PACT plan does not fully pay for tuition and fees at BSC.

The mother presented evidence indicating that the daughter’s tuition costs, together with applicable fees, were $29,900 for the 2010-2011 academic year. Based on additional evidence presented by the mother, the trial court determined that the annual costs for the daughter’s education at BSC, including tuition, fees, room, board, books, and transportation costs, would total approximately $40,000, or approximately $20,000 per semester.

The record reflects that the daughter had received a partial scholarship and two grants to offset a portion of her tuition costs. In addition, the mother testified that the PACT plan had paid $3,200 toward the daughter’s tuition costs. In total, the daughter received $24,400 in financial assistance for the 2010-2011 academic year, or $12,200 per semester. The mother also presented evidence indicating that she had paid $6,000 to BSC at the beginning of the fall semester and that, at the time of the hearing, a $704.55 balance remained on the daughter’s college account for the fall semester.

The parties presented evidence regarding the average estimated annual costs of a college education for an Alabama resident at various public- colleges in Alabama at which the PACT plan would fully cover all tuition and fees. In reaching its judgment in this matter, the trial court relied upon the information pertaining to the estimates of the annual costs that would have applied if the daughter had attended Auburn University. Neither party has objected to the trial court’s referencing that evidence, which indicates that the total estimated cost of attending Auburn University for the 2010-2011 academic year for an Alabama resident was $23,486; that amount includes $7,900 for the cost of tuition and fees, plus amounts for the costs of books, supplies, room, board, transportation, and personal expenses.

The record on appeal indicates that, at the time of the hearing, the father earned approximately $140,000 annually, which was 72% of the parties’ combined gross income. The father testified that he had a college degree from the University of Alabama, and he stated that he had had a scholarship and part-time employment while he was in college. The father believed that the daughter should also work part time, in part to foster a sense of responsibility in the daughter. The record indicates that the mother also has a college degree, although no specific evidence was presented regarding her education.

The trial court’s October 12, 2010, judgment states, in pertinent part:

“The Court finds that the parties’ daughter ... has the commitment and aptitude for a college education. She has been accepted and is enrolled as a freshman at Birmingham-Southern College. [The daughter’s] expenses to attend Birmingham-Southern, including tuition, mandatory student fees, books, supplies, housing and meals are approximately $40,000. [The daughter] has been awarded various academic scholarships and has a PACT Plan, purchased by her maternal grandmother during her parents’ marriage, which defray the cost of her college education. The scholarships and PACT Plan contribution total $24,000 for [the daughter’s] freshman year.
“The Court finds that the [father], who moved to Florida in the same year [as] the issuance of the [Judgment] of Divorce in this cause, admits that he was aware of [the daughter’s] plans to attend college, although the Court also finds that he had little input into the selection of a college for [the daughter]. He did take a tour of the University of Alabama in Tuscaloosa and investigated the costs of Birmingham-Southern [College] by accessing [its] official website.
“5. The parties shall pay on a pro-rata share basis the tuition, room, board, required fees, and book expenses for their [daughter] to attend college, which shall be paid as follows: [The father] shall pay and be responsible for seventy-two (72%) percent of said expenses; [the mother] shall pay twenty-eight (28%) percent of said expenses. Each party shall pay his or her portion of said expenses which are due as of the beginning of each semester or quarter, as the case may be, or as said expenses otherwise become due and payable. If permitted by the institution, said payments shall be made directly to the college pursuant to this Order....
“a. The Court finds from the evidence that the college costs to be used for comparison purposes for [the daughter] shall be the expenses and costs attributed to Auburn University per semester as posted on the official website of Auburn University.
“b. The obligation of the parties to pay toward said college expenses in this paragraph shall terminate on the first to occur of the following events:
“(1) The completion of requirements for a college bachelor’s degree; or
“(2) The child reaches the age of twenty-four (24) years; or
“(3) The child ceasing to become a full-time student (as defined by the school or university attended) and maintaining a ‘C’ or better grade point average in her chosen curriculum.
“c. The obligation of the parties to contribute towards college expenses of their child is limited to and conditioned as follows:
“(1) Expenses shall not exceed those charged by Auburn University located in the State of Alabama;
“(2) Room and board expenses for which the parties shall be obligated are limited to those actually incurred at the child’s college for a ‘median’ priced dormitory room and board combination or those noted on the Auburn University official website, whichever is less;
“(3) The obligation of the parties to pay for required school fees and books shall be limited to those fees and books charged for a specific class or course being taken, for which appropriate verification and documentation shall be provided prior to payment being required;
“(4) The obligation of the parties to pay toward college expenses shall be for those expenses, which are not covered and/or paid' by PACT, or any scholarship or grant, which the child may be awarded. The Court notes, however, that the application of the PACT and scholarships or grants have been and will be applied to the cost of the child’s tuition at Birmingham-Southern College. Any tuition due and owing after application of those awards will be paid by the parties as noted herein but in no event shall exceed the cost of tuition at Auburn University for any given semester or quarter.
“6. The Court finds from the evidence presented that the [mother] has paid $6,501 over and above the PACT fund and scholarships to Birmingham-Southern College for expenses of [the daughter’s] first semester, which began on August 28, 2010. The balance due and owing is $704.55. The [father’s] share of the expenses paid and due total $5,187.99, which amount is due to be paid by him by reimbursing the [mother] in the form of a judgment, the sum of FOUR THOUSAND, FOUR HUNDRED EIGHTY-THREE and 44/100 ($4,483.44) DOLLARS in monthly increments of $500, commencing October 15, 2010, and continuing thereafter on the fifteenth day of each month following until this judgment and the interest thereon are paid in full. Additionally, the [father] is ORDERED to make a direct payment to Birmingham-Southern College in the amount of SEVEN HUNDRED FOUR and 55/100 ($704.55) DOLLARS within thirty (30) days of the date of this Order plus any interest that may be due thereon to this institution.”

A trial court may order a parent to provide postminority educational support when, as in this case, a request for such support is made before the child reaches the age of majority. Penney v. Penney, 785 So.2d 376, 378 (Ala.Civ.App.2000).

“The Supreme Court of Alabama set out certain factors for the trial court to consider when ruling on a petition for postminority [educational] support. See Ex parte Bayliss, 550 So.2d 986 (Ala.1989). Bayliss clearly specifies those factors that shall, and those that may, be considered by the trial court when it is deciding whether to order support for postminority college education. In an award of postminority educational support for a child of divorced parents, the trial court ‘“shall consider all relevant factors that shall appear reasonable and necessary, including primarily the financial resources of the parents and the child and the child’s commitment to, and aptitude for, the requested education.” ’ A.L. v. B.W., 735 So.2d 1237, 1239 (Ala.Civ.App.1999); Thompson v. Thompson, 689 So.2d 885, 887 (Ala.Civ.App.1997) (quoting Ex parte Bayliss, 550 So.2d 986, 987 (Ala.1989)). The court suggested that trial courts also should consider ‘the standard of living that the child would have enjoyed if the marriage had not been dissolved and the family unit had been preserved and the child’s relationship with his parents and responsiveness to parental advice and guidance.’ Id. at 987. The trial court must also determine if the noncustodial parent has ‘sufficient estate, earning capacity, or income to provide financial assistance without undue hardship.’ Thrasher v. Wilburn, 574 So.2d 839, 841 (Ala.Civ.App.1990). Undue hardship does not imply the absence of personal sacrifice, because many parents sacrifice to send their children to college. Id.”

Penney v. Penney, 785 So.2d at 378-79.

The father does not challenge the imposition of the postminority-support award. Rather, on appeal, the father argues that, because the daughter has a PACT plan, his liability for postminority support should be limited to a portion of the amount the PACT plan would not cover had the daughter elected to attend a public university at which the tuition and fees would be paid by the PACT plan. In other words, the father argues that, because the daughter elected not to attend a public university at which tuition and fees would be covered by the PACT plan, he should be responsible only for a portion of the costs of her nontuition-related academic costs, such as room, board, books, and transportation. In making this argument, the father contends that the trial court erred “as a matter of law” in determining the amount of his postminority-support obligation. In his brief submitted to this court, the father relies on Goetsch v. Goetsch, 66 So.3d 788 (Ala.Civ.App.2011).

In that case, the trial court ordered the father to pay postminority support for his son, who was a beneficiary of a trust fund. The father appealed, arguing that, in determining his postminority-support obligation, the trial court had erred in refusing to consider the funds from the trust fund that were available to pay for the son’s college education. The evidence indicated that the trust fund had been established by the son’s paternal grandparents with the intention that it be used, in part or in whole, for the son’s education. This court reversed the trial court’s judgment, holding that, under the facts of that case, the trial court had erred in finding that it was precluded from considering the trust fund as a source of payment of the son’s college expenses. The court explained:

“As noted above, in determining whether and to what extent to require a parent to pay postminority educational support, a trial court must consider the financial resources of both the parents and the child. The term used by our supreme court in Ex parte Bayliss is ‘financial resources,’ which indicates that a trial court may consider all potential sources of financial support. A trial court is not restricted to considering only a parent’s income when considering whether to award postminority educational support.”

Goetsch v. Goetsch, 66 So.3d at 792. Although Goetsch v. Goetsch, supra, holds that a trial court is not precluded from considering the financial assets of a child, it does not require that the child be restricted to utilizing or fully exhausting his or her own resources before a parent is required to contribute to college expenses.

The father acknowledges that, in this case, the trial court did consider the PACT plan and that the trial court included the amounts paid by the PACT plan as offsetting the costs of the daughter’s college education for which the parents would be responsible. However, the father argues that the trial court could not order him to pay amounts toward the daughter’s tuition and fees that were not covered by the daughter’s scholarships, grants, and the PACT plan. We cannot agree with the father that the daughter’s receipt of funds from the PACT plan precludes the father, as a matter of law, from being responsible for contributing to the cost of tuition or fees for her college education. Rather, the decision whether to grant postminority support, and the amount of any postminority-support award, are dependent upon the facts of each case and are within the discretion of the trial court. Ex parte Bayliss, 550 So.2d 986 (Ala.1989); King v. Barnes, 54 So.3d 900 (Ala.Civ.App.2010); Waddell v. Waddell, 904 So.2d 1275 (Ala. Civ.App.2004); and Stinson v. Stinson, 729 So.2d 864, 868 (Ala.Civ.App.1998).

In Goetsch v. Goetsch, supra, this court held that, in exercising its discretion, a trial court is not restricted to considering only the parents’ financial resources. This court noted that “trial courts have often considered a child’s grants or scholarship funds” in determining whether, and to what extent, to award postminority support. Goetsch v. Goetsch, 66 So.3d at 792.

In this case, the evidence supports a conclusion that the trial court took into consideration the PACT plan available to the daughter, the daughter’s scholarship and grants, and the father’s ability to contribute toward the daughter’s college education. The father did not object to the requirement that he pay a portion of the costs of the daughter’s books, room, board, and transportation. The daughter’s tuition and fees not covered by her scholarship, grants, or the PACT plan totaled approximately $5,500, and, under the post-minority-support award, the father is required to pay a portion of that amount. The father has not disputed the trial court’s finding that he is financially capable of making that contribution. Given the foregoing, we cannot say that the father has demonstrated that the trial court erred in fashioning the amount of the post-minority-support award or in including in that award amounts for the costs of the daughter’s tuition and fees.

The father briefly argues that the trial court erred in requiring that he be responsible for postminority support for “a full five years.” In this case, the trial court considered that the daughter would turn 20 just after she finished her freshman year of college, and it ordered that postminority support continue until the daughter was 24 years old. During the hearing on the merits, the mother’s attorney argued to the trial court that the daughter might not be able to complete her education by the age of 23, which was the age limitation first mentioned by the trial court during negotiations pertaining to the issues to which the parties stipulated. The trial court then stated that it would restrict the daughter to receiving postminority support until the age of 24. The relevant exchange is as follows:

“[THE MOTHER’S ATTORNEY]: Sometimes the fact of the matter is, if you need a certain class to complete your course of study, it may not be. Sometimes kids need an extra semester and they’re still full-time students. In this instance, if you did it to her twenty-third birthday, then she wouldn’t have an inch more than eight semesters.
“THE COURT: I will make it age twenty-four.”

Under applicable caselaw, the trial court is required to place certain restrictions, including temporal restrictions, upon a parent’s postminority-support obligation. Barnes v. State ex rel. Barnes, 653 So.2d 310 (Ala.Civ.App.1994). The father does not rely on caselaw pertaining to the imposition of restrictions on a postmi-nority-support award, nor does he cite any authority in support of his argument that the imposition of the five-year restriction was error. It is not the function of this court to perform an appellant’s legal research or to create arguments on his or her behalf. Gonzalez v. Blue Cross/Blue Shield of Alabama, 760 So.2d 878, 883 (Ala.Civ.App.2000). Issues not properly argued and supported by authority will not be considered on appeal. Groover v. Johnston, 39 So.3d 33, 38-39 (Ala.2009); White Sands Group, L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1058 (Ala.2008). Accordingly, the father has not demonstrated to this court that the trial court erred in placing its temporal restriction on the postminority-support award.

The father also argues on appeal that the trial court erred in calculating the amount he was to repay the mother for the costs of the daughter’s freshman-year fall semester; that obligation was set forth in paragraph six of the trial court’s judgment, quoted above. As already indicated, we have rejected the father’s argument that he is not required to contribute toward the costs of the daughter’s tuition and fees. The trial court based its calculations in paragraph six of its judgment on a finding that the mother had paid $6,501 toward the daughter’s expenses for the semester at issue. The father is correct that the evidence in the record on appeal indicates that the mother contributed $6,000 toward the daughter’s expenses for the fall semester. Accordingly, we reverse that portion of paragraph six of the trial court’s judgment pertaining to the father’s reimbursement of certain expenses to the mother, and we instruct the trial court to recalculate that award.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

PITTMAN, THOMAS, and MOORE, JJ., concur.

BRYAN, J., concurs in the result, without writing.

      . This court has explained the PACT program, more formally known as the Wallace-Folsom Prepaid College Tuition Trust Fund, §§ 16-33C-1 to -8, Ala.Code 1975, as follows:
      "The trust fund is designed to assist payment of college tuition costs by allowing a person to purchase PACT contracts in ad-vanee of a child’s attending college. The PACT program obligates the state to pay tuition in accordance with the contract if the minor child attends a state college or university. § 16-33C-1.”

        Johnson v. Taylor, 770 So.2d 1103, 1104 (Ala.Civ.App.1999).


author: PITTMAN, Judge. MOORE, Judge,

text:
    Sean G. CASEY v. Jonice Dorriety CASEY.
    2090371.
    Court of Civil Appeals of Alabama.
    July 29, 2011.
    Certiorari Denied Dec. 9, 2011 Alabama Supreme Court 1101311.

      John L. Jernigan III and Edward L. McMillan IV of Jernigan & McMillan, P.C., Brewton, for appellant.
    William R. Stokes, Jr., of Stokes & Stokes, P.C., Brewton, for appellee.
   On Application for Rehearing

PITTMAN, Judge.

This court’s opinion of March 4, 2011, is withdrawn, and the following is substituted therefor.

Sean G. Casey (“the former husband”) appeals from a judgment of the Escambia Circuit Court modifying his visitation privileges with the parties’ child and awarding attorney’s fees to Jonice Dorriety Casey (“the former wife”).

The former husband and the former wife were married in 1999; in 2000, the former husband reentered military service and was temporarily transferred to Florida. During that time, the former wife resided in Atmore and waited for the former husband to receive a permanent assignment; the parties’ child was born in September 2000. The parties never reunited, and, in 2003, they decided to proceed with an uncontested divorce. Although the divorce documents were prepared in 2003, the divorce judgment was not entered until December 2006, in part because the former husband had been sent overseas. The divorce judgment incorporated an agreement of the parties; that judgment awarded physical custody of the parties’ child to the former wife, awarded the former husband liberal visitation, and ordered the former husband to pay $500 in monthly child support.

The record reveals that, after leaving military service in June 2003, the former husband took employment with a private security company that sent him to Iraq in July 2004; he did not return to Florida until March 2005. Thereafter, he traveled to Idaho briefly and then returned to Florida until September 2005. At that time, he moved to Pennsylvania to attend school and remained there until June 2007. Subsequently, the former husband remarried and moved to New Jersey, staying there until September 2007, when his employer sent him to Saudi Arabia until February 2008.

In May 2007, the former wife filed an action seeking a judgment declaring that the former husband was in contempt for failing to pay $819 in child support and $2,900 in medical expenses (case no. DR-03-180.01); the former husband was served with the complaint in that action in July 2007. At that time, he was notified that a hearing was set for September 2007, when he was scheduled to be in Saudi Arabia, so he hired an attorney in Bay Minette to represent him and to seek a continuance until his return from overseas. After the September 2007 hearing was continued, the former husband terminated the services of that attorney; however, unknown to the former husband, another hearing had been scheduled for December 18, 2007; nothing in the record indicates that the former husband received formal notification from the trial court of that December hearing date. However, the record does contain a November 2007 email message from the former husband to the former wife in which the former husband acknowledged “knowing” that a December hearing date regarding the unpaid child support and medical bills had been set. The former husband telephoned his current wife in New Jersey and discovered that she had not received any notice of an upcoming hearing, so he “assumed” that there would be no hearing in December 2007. When the former husband returned from Saudi Arabia in February 2008, he received notification of the entry of a default judgment that had been entered against him. That judgment had determined the former husband’s child-support arrearage to be $29,000.

The former husband contends that the 2008 judgment is void because he did not have notice that the hearing would review child-support payments back to the date the parties had signed their separation agreement, August 2003, that was subsequently incorporated into a divorce judgment in December 2006. He claims that due process requires that he should have been notified by the trial court that the former wife was not seeking the minimal amount originally alleged in her contempt complaint, i.e., $819 in child support and $2,900 in unpaid medical bills. The record does not indicate that the former wife amended her contempt complaint to reflect any increase in her child-support-arrear-age claim; moreover, the record does not reflect that any official notice of the December 2007 hearing was sent to anyone representing the former husband other than the former husband’s previous attorney. The record also reflects that the former husband, acting pro se, filed a motion for relief from the default judgment on June 9, 2008. Then, on June 25, 2008, the former husband filed a request seeking a modification of visitation, a modification of child support, and the right to claim the child as a dependent for tax purposes and requests concerning the transportation costs of visitation and potential relocation of the parties; that action was assigned case no. DR-03-180.02. The former wife filed an answer; she also filed a counterclaim seeking an order requiring that the former husband be instructed to obtain professional treatment for certain alleged substance-dependency and mental-health issues before being awarded unsupervised visitation with the child.

The trial court conducted a bifurcated ore tenus proceeding to address all pending motions on April 21 and August 31, 2009. During the trial, the former husband and the former wife testified; additionally, the child’s maternal aunt testified in support of the former wife’s request that the former husband be supervised by members of the former wife’s family during future visitation with the child. At the conclusion of the second day of trial, the trial court, without objection from either party, conducted an in camera interview of the child; that interview was not transcribed or made a part of the record on appeal.

On September 30, 2009, the trial court entered a judgment in case no. DR-03-180.02 (the modification action) that purported to deny the former husband’s Rule 60(b) motion to set aside the January 2008 judgment in case no. DR-03-180.01 (the contempt action); that judgment also modified the visitation provisions of the parties’ divorce judgment and awarded the former husband supervised visitation with the child during specified school vacations. The judgment specifically denied the former husband’s requests for a modification of child support, to claim the child as a dependent for tax purposes, and for current and prospective relief as to transportation costs of visitation. In addition, the former husband was ordered to be evaluated by a qualified mental-health professional and to submit to periodic drug testing every 60 days for a specific period; all results of the court-ordered evaluation and tests were to be filed with the trial court during 2010. The trial court scheduled a hearing to review the former husband’s supervised visitation for August 2010.

On October 27, 2009, the former husband filed a postjudgment motion seeking either a new trial or that the trial court alter, amend, or vacate the September 30, 2009, judgment; the trial court denied that motion on December 30, 2009. The former husband filed a timely notice of appeal only in case no. DR-03-180.02 (the modification action) and designated only that action in his notice. The former husband contends that the trial court could not properly deny his Rule 60(b) motion filed in the contempt action. Additionally, the former husband asserts that the trial court, in the modification action, erroneously ordered him to undergo drug testing and a mental-health evaluation in order to obtain supervised visitation with the child. The former husband also contends that the trial court erroneously awarded the former wife an attorney’s fee.

As an initial matter, we note that the issues raised by the former husband relating to the denial of his Rule 60(b) motion in case no. DR-03-180.01 (the contempt action) may not be considered because the former husband has not filed a notice of appeal in that action. As noted previously, on September 30, 2009, the trial court, in a judgment entered in case no. DR-03-180.02 (the modification action), purported to deny the former husband’s Rule 60(b) motion filed in ease no. DR-03-180.01 (the contempt action); however, the former husband filed a notice of appeal only in the modification action. Alabama law is well settled that consolidated actions maintain their separate identities, and separate judgments are to be entered in each action. H.J.T. v. State ex rel. M.S.M., 34 So.3d 1276, 1278 (Ala.Civ.App.2009). Any issues raised by the former husband relating to the purported denial of his Rule 60(b) motion, which was filed in case no. DR-03-180.01 (the contempt action), may not be considered because the former husband has not filed a notice of appeal in that case. Because the former husband, for all that appears in the record, has not filed a notice of appeal in the contempt action, we may not address the correctness of any ruling the trial court may have made regarding the former husband’s Rule 60(b) motion in the contempt action.

We now address those issues arising from the former husband’s appeal in case no. DR-03-180.02 (the modification action). The former husband asserts that the trial court erred in modifying the parties’ divorce judgment to provide that his visitation with the child should occur only when supervised by the former wife or members of her family. Our standard of review is well established:

“The trial court has broad discretion in determining the visitation rights of a noncustodial parent, and its decision in this regard will not be reversed absent an abuse of discretion. Alexander v. Alexander, 625 So.2d 433, 435 (Ala.Civ.App.1993). Every case involving a visitation issue must be decided on its own facts and circumstances, but the primary consideration in establishing the visitation rights accorded a noncustodial parent is always the best interests and welfare of the child.”

Carr v. Broyles, 652 So.2d 299, 303 (Ala.Civ.App.1994); see also Pratt v. Pratt, 56 So.3d 638 (Ala.Civ.App.2010). In addition, a trial court establishing visitation privileges for a noncustodial parent must consider the best interests of the child, and, when appropriate, it must set conditions on visitation that protect the child. Ex parte Thompson, 51 So.3d 265, 272 (Ala.2010).

The former husband contends that the trial court did not have any evidence of his present condition upon which to conclude that the best interests and welfare of the child would require that the former husband’s visitation be supervised. The former wife testified that the former husband had suffered from depression and substance-abuse issues during the parties’ marriage and at the time the parties had separated in 2003. At trial, she testified, and the former husband admitted, that he had suffered from survivor’s guilt and depression following the death of some military colleagues in a terrorist bombing in Iraq in 1996. The former wife testified that, based on that past behavior, she and her family were uncomfortable with the former husband’s most recent attempts to visit with the child and had not allowed him unsupervised visitation during the three years immediately preceding the hearing in this case.

All the former wife’s testimony regarding the former husband’s depression and alcohol-related incidents was limited to occurrences during the marriage and immediately after the parties had separated in 2003; she even admitted during cross-examination that, since the divorce, she had not observed the former husband do anything that could be deemed detrimental to the child. The maternal aunt’s testimony related her concerns with two of the former husband’s visitations with the child upon his last return from Iraq in 2005. The former wife did not offer any negative testimony regarding the former husband as to the four years immediately preceding trial.

For his part, the former husband denied that he had a substance-abuse problem; he stated that he had been “weaned” from narcotic pain medication and was only taking non-narcotic pain medication as a result of a recent back surgery; he admitted that, several years before the hearing, he had been prescribed narcotic medications to deal with back pain, but he stated that he had not taken those medications for several years. Additionally, the former husband testified that he had remarried and had been a productive citizen since the parties’ divorce, as evidenced by his acceptance into a medical school in Pennsylvania and his years of service working for a private security company that required its employees to pass drug tests and other background tests in order to be hired and remain employed.

The former husband also testified that he believed that the former wife and her family had interfered with his relationship with the child, noting that they had discouraged use of a cellular telephone that the former husband had given the child and an Internet camera that he had purchased so the two could see each other for virtual visits. He stated during the August 2009 hearing that the former wife had allowed him to see the child only once during 2009 (immediately following the first day of trial in April).

In his brief to this court, the former husband notes that at trial his attorney objected (on the grounds of remoteness and relevance) to all the former wife’s testimony regarding his alleged substance-abuse and mental-health issues. The former wife’s attorney stated that he would tie those incidents to recent ones, but he never elicited testimony or adduced documentary evidence directly indicating that the former husband had exhibited those problems since 2005. In addition, the trial court specifically noted on the record that the remoteness of the incidents referenced by the former wife and the maternal aunt in their testimony would be considered in giving weight to that testimony. Nevertheless, the trial court entered a judgment requiring that the former husband’s visitation “shall occur only in Atmore, Alabama under the supervision of the former wife or some person designated by the former wife and at places designated by the former wife.”

Previously, this court has affirmed orders of supervised visitation in cases in which there were allegations that the noncustodial parent had abused the child or had suffered from serious psychological problems. See Carr v. Broyles, 652 So.2d at 303; see also I.L. v. L.D.L., 604 So.2d 425, 428 (Ala.Civ.App.1992), and Y.A.M. v. 600 So.2d 1035 (Ala.Civ.App.1992). More recently, it has been suggested that “[ojnce the trial court has identified a particular danger to the health, safety, or welfare of the child, and the record establishes that some restriction on visitation is necessary to protect the child,” the trial court is to tailor a visitation order to target that specific concern. Jackson v. Jackson, 999 So.2d 488, 494 (Ala.Civ.App.2007) (plurality opinion as to that issue); see also P.D. v. S.S., 67 So.3d 128 (Ala.Civ. App.2011), and V.C. v. C.T., 976 So.2d 465 (Ala.Civ.App.2007). However, this court cannot determine from the record presented that the supervised-visitation judgment at issue in this case is not responsive to the circumstances of the former husband and the child because the trial court’s in camera interview of the child was not recorded or otherwise made part of the record on appeal. In the absence of a transcript of an in camera interview with a child, a reviewing court must assume that the evidence the trial court received during that interview is sufficient to support that court’s judgment. See, e.g., Waddell v. Waddell, 904 So.2d 1275, 1279-80 (Ala.Civ.App.2004); Hughes v. Hughes, 685 So.2d 755, 757 (Ala.Civ.App.1996); and Reuter v. Neese, 586 So.2d 232, 235 (Ala.Civ.App.1991). Accordingly, we cannot say that the former husband has demonstrated that the trial court erred in ordering supervised visitation to occur for a definite period.

Similarly, the former husband asserts that the trial court erred in requiring him to submit to drug screens, drug counseling, and psychiatric counseling. Just as a trial court making initial custody and visitation determinations must consider the best interests of the child, so must the trial court determine the accuracy of alleged substance-abuse and mental-health issues and their impact upon the child. See, e.g., Ex parte Devine, 398 So.2d 686, 696-97 (Ala.1981), and Kovakas v. Kovakas, 12 So.3d 693, 697-98 (Ala.Civ.App.2008). As noted previously, an award of visitation is within the discretion of the trial court and must be decided based upon the particular facts of each case. See, e.g., Mann v. Mann, 725 So.2d 989, 992 (Ala.Civ.App.1998); see also M.W.W. v. B.W., 900 So.2d 1230, 1232-33 (Ala.Civ.App.2004). The former husband’s challenge to the requirement that he submit to drug screens, drug counseling, and psychiatric counseling during the specified period of supervised visitation fails for the same reason that his challenge to supervised visitation fails. Because we must assume that the evidence the trial court received during the in camera interview with the child is sufficient to support that court’s judgment, see Waddell, Hughes, and Reuter, supra, we cannot conclude that the trial court erred in ordering the former husband to submit to testing and counseling in this case.

The former husband also contends that awarding the former wife $3,000 in attorney’s fees was error. The Alabama “legislature enacted § 30-2-54, Ala.Code 1975, to allow an attorney-fee award to a prevailing party in actions for divorce or to recover unpaid child-support, alimony, or maintenance awards.” Pate v. Guy, 934 So.2d 1070, 1072 (Ala.Civ.App.2005) (emphasis added). Although the pertinent “action” in this case primarily concerned child visitation, it also involved the former husband’s requests for a modification of child support and to claim the child as a dependent for tax purposes; thus, we conclude that § 30-2-54, Ala.Code 1975, applies in this case. Alabama law is well settled that “attorney fees are ordinarily available in modification proceedings, the award and amount thereof lying within the sound discretion of the trial court.” Ebert v. Ebert, 469 So.2d 615, 618 (Ala.Civ.App.1985) (citing Bell v. Bell, 443 So.2d 1258, 1262 (Ala.Civ.App.1983)); see also S.R.E. v. R.E.H., 717 So.2d 385, 388 (Ala.Civ.App.1998). Cf. Pate v. Guy, 934 So.2d at 1072-73 (because pertinent action concerned child visitation, not support, attorney-fee award was not proper).

We affirm the trial court’s judgment in the modification action requiring supervised visitation; requiring the former husband to submit to drug screens, drug counseling, and psychiatric counseling; and awarding the former wife attorney fees.

APPLICATION FOR REHEARING GRANTED IN PART AND DENIED IN PART; OPINION OF MARCH 4, 2011, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.

BRYAN and THOMAS, JJ, concur.

MOORE, J., concurs specially, with writing, which THOMPSON, P.J., joins.

MOORE, Judge,

concurring specially.

I concur specially. On application for rehearing, the former husband asserts for the first time that the trial court’s judgment denying his Rule 60(b), Ala. R. Civ. P., motion to set aside the January 31, 2008, default judgment has not been entered in case no. DR-03-180.01. Although I agree with the conclusion in the main opinion that the former husband failed to file a notice of appeal in case no. DR-03-180.01, I write specially to note that, when a judgment is rendered, but not entered, as the former husband asserts happened in that action, there is no final judgment from which to appeal. See Bolden v. Wise Alloys, LLC, 5 So.3d 1287, 1289 (Ala.Civ.App.2008). As the main opinion states, “[w]hen actions are ordered consolidated, ‘each action retains its separate identity and thus requires the entry of a separate judgment.’” H.J.T. v. State ex rel. M.S.M., 34 So.3d 1276, 1278 (Ala.Civ.App.2009) (quoting League v. McDonald, 355 So.2d 695, 697 (Ala.1978)); see also R.J.G. v. S.S.W., 42 So.3d 747, 752-53 (Ala.Civ.App.2009). If, as the former husband asserts, the trial court failed to enter its judgment in ease no. DR-03-180.01, there is no final judgment in that action from which the former husband could have appéaled.

The former husband also requests that this court reconsider its decision with regard to the visitation provisions of the trial court’s judgment. I conclude, however, that that issue was correctly and completely addressed in this court’s opinion on original submission. I, therefore, concur in the main opinion’s denial of the application for rehearing on that issue.

THOMPSON, P.J., concurs.

      . Although the former wife contends that that motion was an untimely Rule 59, Ala. R. Civ. P., postjudgment motion because (1) the motion was filed more than 30 days after the entry of the judgment and (2) the former husband, albeit inartfully, pleaded that the judgment was void on due-process grounds, we conclude that the former husband's post-judgment motion was a Rule 60(b) motion, and we treat it as such in this opinion. See, e.g., Ex parte Lang, 500 So.2d 3 (Ala.1986), and Curry v. Curry, 962 So.2d 261 (Ala.Civ.App.2007).

      . We conclude that, although the trial court scheduled a hearing to review the former husband's supervised visitation, the judgment was final. See K.L.U. v. M.C., 809 So.2d 837, 840 (Ala.Civ.App.2001) (concluding that judgment containing supervised-visitation award to father was final and would support an appeal, although trial court had already set a hearing to review the father’s supervised visitation).