author: PER CURIAM. THOMPSON, Presiding Judge,

text:
    Joseph GRACE v. STANDARD FURNITURE MANUFACTURING COMPANY, INC.
    2090111.
    Court of Civil Appeals of Alabama.
    July 23, 2010.

      Charles R. Godwin, Timothy J. Godwin, and Gordon B. Godwin, Atmore, for appellant.
    Robert G. Jackson, Jr., Anthony M. Hoffman, and Jennifer S. Holifield of Zie-man, Speegle, Jackson & Hoffman, L.L.C., Mobile, for appellee.
   PER CURIAM.

Joseph Grace has been employed by Standard Furniture Manufacturing Company, Inc. (“Standard”), in various positions for 16 years. On November 8, 2005, while working as a forklift operator, Grace was injured when he was hit by a forklift. Grace injured his neck and left shoulder; he also suffered a concussion. After treatment in the emergency room on the day of the accident, Grace sought treatment for his injuries from a company-approved physician, Dr. Gary Kolb, from his personal physician, Dr. James R. Dixon, and from a company-approved orthopedic surgeon, Dr. William A. Crotwell III.

Dr. Crotwell diagnosed Grace with cervical degenerative disk disease, cervical radiculopathy, impingement syndrome of the left shoulder, and arthritis of the left shoulder. According to Dr. Crotwell, a November 2005 MRI performed on Grace’s shoulder was of poor quality; Dr. Crotwell said that, although he noticed joint arthritis on that MRI, he did not see any tears or other acute injuries indicated on that MRI. However, a March 2006 MRI revealed a partial tear in Grace’s rotator cuff and a possible labrum tear. Dr. Crotwell performed surgery on Grace’s shoulder in April 2006; he repaired the tears in the rotator cuff and in the labrum at that time.

According to Dr. Crotwell, the arthritic changes in Grace’s neck, which included bone spurs, or osteophytes, and multiple levels of collapsed degenerative disks, were preexisting conditions not caused by Grace’s work-related accident. Grace also has a congenital defect in his shoulder; Dr. Crotwell explained that Grace’s acro-mion, a bone forming a portion of the shoulder joint, was “sloping” and could have rubbed against Grace’s rotator cuff, causing irritation. Dr. Crotwell also referred to the irritation in Grace’s shoulder as resulting from a bone spur. According to Dr. Crotwell, he could not tell whether the rotator-cuff tear that he repaired in April 2006 had resulted from the November 2005 injury or whether it had resulted from irritation by the bone spur before or after the November 2005 work-related injury to the shoulder. Dr. Crotwell did testify that “if you get an injury on top of [a preexisting bone spur] then it is an aggravation to it.” In the April 2006 surgery, Dr. Crotwell also trimmed the acro-mion to alleviate any irritation it might have been causing.

After Grace reached maximum medical improvement regarding both his neck injury and his shoulder injury, Dr. Crotwell assigned Grace physical-impairment ratings. Dr. Crotwell explained that Grace had a 3%' loss of motion in his shoulder and that he had a 10% physical impairment to his upper extremity as a result of his shoulder surgery. According to Dr. Crotwell, however, 5% of Grace’s 10% physical impairment was caused by his preexisting arthritis and defective acro-mion; thus, Dr. Crotwell ultimately assigned Grace an 8% physical impairment to his upper extremity resulting from his work-related shoulder injury, which translated, he said, to a 5% physical impairment to the body as a whole.

Grace’s neck injury also resulted in permanent physical impairment. Dr. Crot-well explained that Grace suffered a 6% physical impairment to the body as a whole as a result of the condition of his neck. Dr. Crotwell noted that 4% of Grace’s neck impairment resulted from Grace’s preexisting degenerative disk disease; thus, Dr. Crotwell assigned only a 2% physical impairment to Grace as a whole as a result of his work-related neck injury.

When all of the physical-impairment ratings are combined, Dr. Crotwell explained, Grace suffered a 14% physical impairment to the body as a whole if his preexisting conditions are included. However, when those preexisting conditions are excluded from the calculations, said Dr. Crotwell, Grace’s physical-impairment rating is only 7% to the body as a whole.

Dr. Crotwell placed Grace under permanent restrictions as a result of his work-related injuries. Grace is limited to lifting 15 to 20 pounds frequently and 25 to 30 pounds infrequently. He is not permitted to perform overhead work with his left arm, and he is not permitted to perform any work above chest height. In addition, Grace must avoid excessive bending, twisting, and torquing with his neck.

Grace’s restrictions prevented him from resuming his position as a forklift operator, which requires heavy lifting on a regular basis. When Grace first returned to work after his injury, he was assigned a position bagging hardware. He was later reassigned to an assembly-line position where he placed “U channels” on the bottom of dressers. Grace testified that his position on the assembly line was within his restrictions. According to Grace, at the time of trial in September 2008, he earned $.15 per hour more in his position on the assembly line than he had as a forklift operator in November 2005. A pay stub admitted into evidence at trial showed that Grace earned $446 per week. The parties agreed that Grace’s average weekly wage at the time of his accident was $424.

Grace filed an action against Standard, seeking workers’ compensation benefits for the injuries resulting from the November 2005 accident. The trial court entered a judgment in favor of Standard on October 15, 2008, and Grace appealed. This court reversed the trial court’s October 2008 judgment because it failed to contain findings of facts and conclusions of law as required by Ala.Code 1975, § 25-5-88. Grace v. Standard Furniture Mfg. Co., 29 So.3d 918 (Ala.Civ.App.2009). On remand, the trial court entered a judgment in compliance with § 25-5-88, and Grace again appealed.

Our review of this case is governed by the Workers’ Compensation Act, Ala. Code 1975, § 25-5-1 et seq., which states in pertinent part: “In reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence.” Ala. Code 1975, § 25-5-81(e)(2). Therefore, this court “will view the facts in the light most favorable to the findings of the trial court.” Whitsett v. BAMSI, Inc., 652 So.2d 287, 290 (Ala.Civ.App.1994), overruled on other grounds, Ex parte Trinity Indus., Inc., 680 So.2d 262, 269 (Ala.1996). Further, a trial court’s finding of fact is supported by substantial evidence if it is “supported by ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ ” Ex parte Trinity Indus., 680 So.2d at 269 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989), and citing Ala. Code 1975, § 12-21-12(d)). Our review of legal issues is without a presumption of correctness. Ala.Code 1975, § 25-5-81(e)(1); see also Ex parte Trinity Indus., 680 So.2d at 268.

As a preliminary matter, we will address the parties’ arguments concerning whether Grace’s counsel had stipulated that Ala.Code 1975, § 25-5-57(a)(3)i., known as the “return-to-work statute,” applies in the present case. In Grace, Standard argued that the trial court’s judgment, which contained not one finding of fact or conclusion of law, was merely meager and omissive because Grace’s counsel had stipulated that the only issue was whether the return-to-work statute applied to limit Grace’s receipt of benefits. In our opinion concluding that the judgment was not merely meager and omissive and required reversal under § 25-5-88, we explained that the record did not contain a stipulation by Grace’s counsel that the only issue before the trial court was whether the return-to-work statute applied to Grace; in fact, we stated that “[t]he record is devoid of any stipulations by Grace’s counsel.” Grace, 29 So.3d at 920.

Because the trial court’s subsequent judgment states that the parties stipulated that § 25-5-57(a)(3)i. controlled, the parties again argue whether a stipulation to that effect was entered on the record. “ ‘ “Under the doctrine of the ‘law of the case,’ whatever is once established between the same parties in the same case continues to be the law of that ease, whether or not correct on general principles, so long as the facts on which the decision was predicated continue to be the facts of the case.” ’ ” McMorrough v. McMorrough, 930 So.2d 511, 514 (Ala.Civ.App.2005) (quoting Stephens v. Stephens, 699 So.2d 194, 196 (Ala.Civ.App.1997) (quoting in turn Blumberg v. Touche Ross & Co., 514 So.2d 922, 924 (Ala.1987))). Thus, we will not consider again whether a stipulation regarding § 25-5-57(a)(3)i. exists in this case. The trial court’s judgment on remand further states that it independently concluded that the statute was applicable. We will review that conclusion on appeal.

Because Grace suffered injuries to nonscheduled members of the body, i.e., his neck and shoulder, the compensation due him would ordinarily be based upon his loss of earning capacity. Ala.Code 1975, § 25-5-57(a)(3)g. However, Standard argued below that, based on the fact that Grace’s testimony established that he had returned to work at a higher rate of pay, Ala.Code 1975, § 25-5-57(a)(3)i., or the return-to-work statute, applied, resulting in a presumption that Grace had not suffered a loss of earning capacity. Section 25-5-57(a)(3)i. reads, in pertinent part:

“Return to Work. If, on or after the date of maximum medical improvement, except for scheduled injuries as provided in Section 25-5-57(a)(3), an injured worker returns to work at a wage equal to or greater than the worker’s pre-injury wage, the worker’s permanent partial disability rating shall be equal to his or her physical impairment and the court shall not consider any evidence of vocational disability.”

This court has held that the return-to-work statute creates a rebuttable presumption that an employee who returns to work earning the same or a greater wage suffered no loss of earning capacity. Lanthrip v. Wal-Mart Stores, Inc., 864 So.2d 1079, 1082 (Ala.Civ.App.2002); Pemco Aeroplex v. Moore, 775 So.2d 215 (Ala.Civ.App.1999); and Discovery Zone v. Waters, 753 So.2d 515, 517 (Ala.Civ.App.1999). In those cases, we explained that an employee may rebut the presumption by establishing that the employee truly suffers from incapacity or that the employee’s higher post-injury wages are an unreliable indicator of his or her earning capacity. See, e.g., Discovery Zone, 753 So.2d at 517 (quoting Johnson v. Alabama Power Co., 670 So.2d 39, 41-42 (Ala.Civ.App.1993)). However, in applying the return-to-work statute in Discover Zone, Pemco Aeroplex, and Lanthrip, this court applied caselaw that predated the enactment of the statute.

Before 1992, when the return-to-work statute was enacted, see Ala. Acts 1992, Act No. 92-537, § 17, Alabama caselaw held that, when an injured employee returned to work earning the same or higher wages, those facts raised a presumption that the employee had not sustained a loss of earning capacity, which presumption could be rebutted by evidence independently showing incapacity or explaining away the post-injury earnings as an unreliable indicator of earning capacity. See, e.g., Goodyear Tire & Rubber Co. v. Downey, 266 Ala. 344, 96 So.2d 278 (1957); and United States Steel Mining Co. v. Riddle, 627 So.2d 455 (Ala.Civ.App.1993) (applying pre-1992 law). Because caselaw allowed the presumption to be easily rebutted, injured employees routinely received compensation for loss of earning capacity despite having experienced no actual wage loss. See 1 Terry A. Moore, Alabama Workers’ Compensation §§ 13:40-13:51 (1998). Apparently, the legislature concluded that the caselaw allowing employees to receive compensation based on loss of earning capacity, despite the fact that their injuries did not immediately result in reduced wages, should be superseded. In order to limit compensation in cases in which an injured employee returns to work earning the same or higher wages following a permanent nonscheduled injury, the legislature resolved that, in such cases, the employee’s degree of physical impairment, and not his or her loss of earning capacity, should be the measure for compensation. See T. Moore, supra, at § 13:51. Any reading of the return-to-work statute that restores the applicability of caselaw regarding the presumption of a loss of earning capacity created by an employee’s returning to work earning the same or higher wages would be totally inapposite to the purpose of the statute. See Ala. Acts 1992, Act No. 92-357, § 1 (requiring workers’ compensation laws to be construed to effect their purposes).

The return-to-work statute does not create any presumption that an employee has not sustained a loss of earning capacity. Rather, the return-to-work statute conclusively states that, when an employee returns to work after reaching maximum medical improvement and the employee is earning the same or higher wages, loss of earning capacity shall not be considered in assessing the compensation due the employee for any permanent disability. Upon concluding that the return-to-work statute governs the amount of compensation due, a trial court need not undergo any analysis to determine whether an employee’s post-maximum-medical-improvement earnings reliably indicate the earning capacity of the employee because earning capacity is not even at issue. To the extent that Discovery Zone, Pemco Aeroplex, and Lanthrip construe the return-to-work statute incorrectly by applying pre-statute caselaw indicating that a return to work at the same or a higher wage creates only a presumption that the employee has suffered no loss of earning capacity, those cases are overruled.

Because the return-to-work statute does not create a rebuttable presumption that an employee who returns to work at the same or a higher wage has not sustained a loss of earning capacity, we need not consider whether Grace presented sufficient evidence to rebut the nonexistent presumption. We will, however, consider whether, as Grace argues, the trial court compared the wrong wage to conclude that his post-injury wages were higher than his pre-injury wages. Grace says that the trial court should have considered the wage that Grace was first paid when he returned to work after his injury. However, Grace presented the only evidence of his post-injury wages, and he chose to present evidence of his wage at the time of trial. Thus, even assuming that the trial court erred by using the wage Grace was earning at the time of trial, Grace led the trial court into that error by providing to the trial court evidence of only the wage he was earning at the time of trial for comparison with his pre-injury wage under the return-to-work statute. See Mobile Infirmary Med. Ctr. v. Hodgen, 884 So.2d 801, 808 (Ala.2003) (“The law is well settled that a party may not induce an error by the trial court and then attempt to win a reversal based on that error.”).

We cannot conclude that the trial court erred in determining that Grace returned to work at a higher wage than the wage he had earned before his injury. The evidence at trial established that Grace earned $.15 per hour more as an assembly-line worker than he had as a forklift operator. Thus, the trial court’s conclusion that the return-to-work statute precluded consideration of any vocational disability was supported by substantial evidence. We therefore affirm the trial court’s judgment insofar as it determined that § 25-5-57(a)(3)i. applied to prohibit Grace from presenting evidence of vocational disability-

Grace also argues that the trial court erred by determining his disability rating to be 7%, which was the exact physical-impairment rating assigned by Dr. Crotwell after Dr. Crotwell discounted any physical impairment resulting from Grace’s preexisting neck and shoulder conditions. According to Grace, the trial court was not bound by Dr. Crotwell’s physical-impairment rating; we agree. See Drummond Co. v. Key, 854 So.2d 1159, 1163 (Ala.Civ.App.2002) (“It is the duty of the trial court to review all of the evidence, including its own observations, in determining the extent of the disability.”); Compass Bank v. Glidewell, 685 So.2d 739, 741 (Ala.Civ.App.1996) (“It is well settled that the trial court has the duty to determine the extent of disability and is not bound by expert testimony in making that determination; yet, in making its determination, the trial court must consider all the evidence, including its own observations, and it must interpret the evidence to its own best judgment.”). However valid, that principle is not necessarily helpful to Grace’s argument.

Grace further relies on Ala.Code 1975, § 25-5-58, and the cases construing it. See T. Moore, supra, at § 16.25 (explaining the judicial construction of § 25-5-58). Section 25-5-58 permits the apportionment of disability between disability caused by a work-related accident and disability resulting from preexisting conditions. That statute provides:

“If the degree or duration of disability resulting from an accident is increased or prolonged because of a preexisting injury or infirmity, the employer shall be liable only for the disability that would have resulted from the accident had the earlier injury or infirmity not existed.”

§ 25-5-58. However, the statute has long been construed to permit such apportionment only when the preexisting condition or infirmity prevented the employee from performing the duties of his or her employment before the work-related accident or injury. See Francis Powell Enters., Inc. v. Andrews, 21 So.3d 726 (Ala.Civ.App.2009).

As we explained in Francis Powell:

“In a long line of cases beginning with Ingalls Shipbuilding Corp. v. Cahela, 251 Ala. 163, 36 So.2d 513 (1948) (superseded on other grounds by statute, see Tit. 26, § 262(a), Ala.Code 1940), Alabama appellate courts have held that ‘ “the term ... infirmity in [§ 25-5-58] refer[s] to a condition which affects [the plaintiffs] ability to work as a normal man at the time of the accident or which would probably so affect him within the compensable period.” ’ Ex parte Lewis, 469 So.2d 599, 601 (Ala.1985) (quoting Cahela, 251 Ala. at 173, 36 So.2d at 521). Pursuant to Cahela,
“‘the law presumes that there is no preexisting injury or infirmity when the employee is able to fully perform his or her job duties in a normal manner prior to the subject injury. [Section 25-5-58] only applies when the previous injury or infirmity has demonstrated itself as disabling and prevented the employee from earning wages in a normal manner.’
“1 Terry A. Moore, Alabama Workers’ Compensation § 16.25 at 708-09 (1998) (emphasis added; footnote omitted).”

Francis Powell, 21 So.3d at 736.

Grace testified that he had performed the duties of a forklift operator before his accident. No evidence in the record indicates that Grace’s preexisting degenerative disk disease, bone spurs, or arthritis affected his ability to perform the essential functions of his job as a forklift operator. Grace argues, therefore, that the trial court erred by adopting the 7% physical-impairment rating assigned by Dr. Crot-well based solely on the disability resulting from the work-related accident.

Standard argues that the trial court could have considered all the evidence of record and concluded that Grace’s rotator-cuff tear was not a result of his work-related accident and therefore that the 7% physical-impairment rating the trial court assigned was based on a 6% physical-impairment rating as a result of Grace’s neck conditions combined with a 1% physical-impairment rating based on the labrum tear Grace suffered. Although we agree with Standard that a trial court is not bound by the physical-impairment rating assigned by the attending physician and that the trial court may make its own determination of disability based on its view of the evidence and its own observations of the employee, see Glidewell, 685 So.2d at 741, we cannot agree that the trial court in the present case happened to assign the exact physical-impairment rating assigned by Dr. Crotwell by using a different analysis of the evidence. In fact, the trial court’s specific factual findings belie any such analysis on the part of the trial court. The trial court specifically stated that Grace’s neck condition resulted in a physical-impairment rating of 6% but that 4% of the physical impairment was the result of preexisting conditions. The trial court then stated that the physical-impairment rating for Grace’s work-related neck injury was 2%. Although the trial court’s judgment did not specifically outline its findings regarding the physical-impairment rating for Grace’s work-related shoulder injury, the only percentage of physical impairment the trial court could have assigned to the shoulder injury is 5%, the same physical-impairment rating Dr. Crotwell assigned to Grace’s shoulder injury as a result of Grace’s work-related accident. Cf. id. at 741 (noting that the trial court stated in its judgment that it had based its physical-impairment-rating determination on its own observations).

Dr. Crotwell testified that his 2% and 5% physical-impairment ratings to the body as a whole as a result of the neck and shoulder injuries, respectively, were based solely on Grace’s work-related injury. Dr. Crotwell explained that, including the ;preexisting conditions, Grace’s physical-impairment rating to the body as a whole would be 14%. Discounting Grace’s physical-impairment ratings for the preexisting conditions, Dr. Crotwell assigned the exact physical-impairment ratings adopted by the trial court. Thus, the trial court adopted physical-impairment ratings that excluded from consideration preexisting conditions that had not affected Grace’s ability to perform his position as a forklift operator. By doing so, the trial court improperly applied § 25-5-58 by apportioning Grace’s disability rating despite the fact that he was able to perform, without any limitations, all the duties of his position as a forklift operator before the work-related accident that led to his surgery and disability. See Francis Powell, 21 So.3d at 736 (quoting T. Moore, supra, at § 16.25). We therefore reverse the trial court’s judgment insofar as it determined Grace’s disability rating based on an apportionment between his preexisting conditions and the effects of his work-related injuries.

Grace’s final argument on appeal concerns the trial court’s statement in its judgment that “judgment is entered in favor of [Standard].” Grace argues that, by entering judgment in favor of Standard, the trial court is “attemptfing] to prevent [Grace] from recovering litigation expenses as costs taxed against [Standard].” Standard argues, among other things, that the issue of costs has not been addressed by the trial court. Because Grace presents no authority in support of this argument, in violation of Rule 28(a)(10), Ala. R.App. P., we will not consider the issue further. Asam v. Devereaux, 686 So.2d 1222, 1224 (Ala.Civ.App.1996) (stating that “[t]his court will address only those issues properly presented and for which supporting authority has been cited”). We note that “[t]he assessment of costs is merely incidental to the judgment and may be done at any time prior to issuance of execution.” Littleton v. Gold Kist, Inc., 480 So.2d 1236, 1238 (Ala.Civ.App.1985).

In conclusion, we affirm the trial court’s judgment insofar as it concluded that § 25-5-57(a)(3)i. applied to prohibit Grace from presenting evidence of vocational disability. We also affirm the trial court’s judgment insofar as it stated that judgment was entered in favor of Standard. However, we reverse that portion of the trial court’s judgment assigning Grace a 7% physical-impairment rating, and we remand the cause for the trial court to determine Grace’s physical-impairment rating without apportionment between Grace’s preexisting conditions and those injuries resulting from his work-related accident.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

THOMPSON, P.J., concurs in part and concurs in the result.

THOMPSON, Presiding Judge,

concurring in part and concurring in the result.

The main opinion, without invitation from either party, overrules controlling precedent relative to the interpretation and application of § 25-5-57(a)(3)i., Ala. Code 1975 (“the return-to-work statute”). Because I conclude that overruling that precedent is not necessary to a proper disposition of the appeal, I concur only in the result as to that issue.

As the main opinion notes, Joseph Grace argues that the return-to-work statute ere-ates a presumption that an employee who returns to work at a wage equal to or greater than his or her pre-injury wage has not suffered a loss of earning capacity, but that this presumption is rebuttable, so that, in the proper case, an employee can show that he or she has lost earning capacity despite having returned to work at a wage equal to or greater than his or her pre-injury wage. Grace’s argument is based on this court’s decisions in Lanthrip v. Wal-Mart Stores, Inc., 864 So.2d 1079 (Ala.Civ.App.2002); Pemco Aeroplex v. Moore, 775 So.2d 215 (Ala.Civ.App.1999); and Discovery Zone v. Waters, 753 So.2d 515 (Ala.Civ.App.1999). My review of the record leads me to conclude that, applying the above-noted decisions," the trial court could have found that Grace did not, in fact, rebut the presumption identified in those cases and, as a result, that the trial court did not err in failing to consider any lost earning capacity on Grace’s part in awarding compensation. The main opinion reaches the same conclusion, i.e., that the trial court did not err in failing to consider Grace’s lost earning capacity, if any, but it does so by rejecting the controlling precedents on this issue.

Recently, our supreme court stated that “ ‘[sjtare decisis commands, at a minimum, a degree of respect from this Court that makes it disinclined to overrule controlling precedent when it is not invited to do so.’ ” Ex parte Carlisle, 26 So.3d 1202, 1207 n. 2 (Ala.2009) (quoting Moore v. Prudential Residential Servs. Ltd. P’ship, 849 So.2d 914, 926 (Ala.2002)). The main opinion fails to apply this maxim and, instead, simply determines to right a perceived wrong in our prior interpretation of the return-to-work statute of which no one in this case has complained. To the extent the main opinion, sua sponte, embarks on this new direction with regard to the interpretation of the return-to-work statute, I concur only in the result the main opinion ultimately reaches. As to the other issues presented on appeal, however, I concur fully in the main opinion.

      . On September 14, 2009, after our opinion in Grace was issued but before this court entered its certificate of judgment, the trial court entered a judgment containing findings of fact and conclusions of law. Because the trial court lacked jurisdiction to enter its September 14, 2009, judgment, see Ex parte Tionqson, 765 So.2d 643, 643 (Ala.2000), and Veteto v. Yocum, 792 So.2d 1117, 1118-19 (Ala.Civ.App.2001), we reinvested the trial court with jurisdiction to reenter that judgment, which the trial court did on June 16, 2010.

      . Under the return-to-work statute, an employee may later petition for an adjustment of his or her compensation based on loss of earning capacity if the employee loses his or her employment for one of the reasons enumerated in the statute. See Ala.Code 1975, § 25 — 5—57(a)(3)i.(i) thru (v). However, that situation does not apply to this case.


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    N.T. v. P.G. and J.M.
    2090342.
    Court of Civil Appeals of Alabama.
    July 30, 2010.

      James R. Bosarge, Jr., Pelham, for appellant.
    C. Jason Liggan, Birmingham, for ap-pellee P.G.
    Christy McCain Taul, Birmingham, for appellee J.M.
   MOORE, Judge.

N.T. (“the mother”) appeals from a judgment of the Jefferson Juvenile Court (“the juvenile court”) modifying the visitation schedule of P.G. and J.M. (“the former custodians”) with the mother’s minor children. We affirm.

Procedural History

In prior proceedings, the juvenile court declared the mother’s three minor children dependent and placed each of them in the custody of one of the former custodians. Upon proof of the rehabilitation of the mother, the juvenile court eventually returned custody of the children to the mother. In the juvenile court’s August 5, 2009, judgment returning custody of the children to the mother, the juvenile court also granted each of the former custodians “standard visitation.” The mother did not appeal from that judgment or otherwise seek to have the visitation provisions of that judgment vacated.

On November 19, 2009, the mother filed a “Motion To Amend and Close Case” in which she requested that the juvenile court amend the visitation provisions of the August 5, 2009, judgment to permit the former custodians to visit with the children solely at the discretion of the mother. Apparently, because the motion was filed well beyond the period for filing a post-judgment motion, see Rule 1(B), Ala. R. Juv. P. (“All postjudgment motions ... must be filed within 14 days after entry of order or judgment....”), the juvenile court treated the mother’s motion as a petition to modify the visitation provisions of the August 5, 2009, judgment based on changed circumstances. The juvenile court conducted a trial on the petition at which two employees of the Jefferson-Blount-St. Clair Mental Health Authority testified that, mainly to avoid confusing the children and disrupting their relationship with the mother, the children’s visitation with the former custodians should be at the discretion of the mother. Following the trial, the juvenile court entered a judgment on December 9, 2009, modifying the former custodians’ visitation to one weekend a month. The mother filed a post-judgment motion, which the juvenile court denied, prompting this appeal.

On appeal, the mother argues solely that the juvenile court erred in granting any visitation to the former custodians because, she says, such an order violates her custodial rights, see Shoemaker v. Shoemaker, 563 So.2d 1032, 1033 (Ala.Civ.App.1990) (holding that parent has custodial right to prevent visitation with nonparent), and her constitutional rights, see Troxel v. Granville, 530 U.S. 57, 78-79, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (holding that custodial parent has constitutional right to determine with whom children associate). We note, however, that the juvenile court originally granted visitation to the former custodians in its August 5, 2009, judgment. The mother did not appeal from that judgment. Instead, more than three months later, on November 19, 2009, the mother filed what effectively amounted to a petition to modify the former custodians’ visitation rights.

On a petition to modify visitation, a court does not reexamine the evidence to determine if its original judgment was correct; rather, it decides whether modification is warranted based on changed circumstances. In G.P. v. A.A.K., 841 So.2d 1252 (Ala.Civ.App.2002), the grandparents gained visitation rights pursuant to a Kentucky judgment. The mother then moved an Alabama court to modify that judgment, arguing that the original Kentucky judgment violated her constitutional rights under Troxel, supra. The Alabama court held that “Alabama’s grandparent-visitation statute, Ala.Code 1975, § 30-3-4.1, was unconstitutional” and “declined to enforce or to modify the grandparents’ visitation” rights, and the grandparents appealed. 841 So.2d at 1254 (emphasis omitted). This court noted that the Kentucky judgment was conclusive as to any right of the grandparents to visit and that, if the mother had any constitutional objections to that judgment, she should have pursued them in relation to that judgment. This court held that the mother could not use a petition to modify the grandparents’ visitation rights filed in an Alabama court as a means of belatedly raising those objections. This court stated:

“[T]he fact that the Houston Circuit Court had jurisdiction to modify the grandparents’ visitation rights as the mother requested does not mean that it had jurisdiction to redetermine, ab ini-tio, whether the grandparents should have been granted visitation rights — the previous visitation judgment ‘remain[ed] a custody determination of the state that issued it.’ ”

841 So.2d at 1257 (quoting Ala.Code 1975, § 30-3B-303 (Official Comment)).

Although this case does not involve issues regarding interstate jurisdictional conflict, the reasoning in G.P. applies equally to this case. The mother should have raised any constitutional or other objections she had to the judgment awarding visitation rights to nonparents at the time that judgment was entered on August 5, 2009. See E.H.G. v. E.R.G., [Ms. 2071061, March 12, 2010] - So.3d -, - (Ala.Civ.App.2010) (recognizing right of fit parent to prevent visitation by grandparents, which right can only be overridden by court based on evidence that the prevention of the visitation would harm the child). However, the mother did not file a timely postjudgment motion or an appeal raising those objections. Instead, she waited until November 19, 2009, to file a “motion to amend” the August 5, 2009, judgment. At that point, any error committed by the juvenile court in granting the former custodians visitation rights in the August 5, 2009, judgment had become the law of the case, subject to modification only upon a showing of changed circumstances. See McQuinn v. McQuinn, 866 So.2d 570, 575 (Ala.Civ.App.2003) (noting that, since mother did not appeal from judgment awarding the child’s former stepfather visitation rights, the former stepfather’s “right ... to visitation with the stepson became the law of the case” “except as it may be subject to modification upon a change in circumstances”).

On appeal from one judgment, an appellate court cannot consider arguments relating to errors committed in a previously entered final judgment from which no appeal was taken. See Moody v. Myers, 268 Ala. 177, 105 So.2d 54 (1958). Thus, this court is foreclosed from addressing the arguments raised by the mother relating to the correctness of the August 5, 2009, judgment. Our review is confined to arguments directed only to the judgment entered on December 9, 2009. Because the mother makes no argument that the juvenile court erred in any respect in regard to the December 9, 2009, judgment, we conclude that she has waived all issues relating to that judgment. See Robino v. Kilgore, 838 So.2d 366, 370 (Ala.2002). Therefore, the juvenile court’s judgment is due to be affirmed.

AFFIRMED.

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

      . We note that the juvenile court would have jurisdiction over a petition to modify the visitation provisions of its judgment pursuant to Ala.Code 1975, § 12-15-117(a).


author: BRYAN, Judge. MOORE, Judge,

text:
    Victor G. SUGGS v. Melissa SUGGS.
    2090078.
    Court of Civil Appeals of Alabama.
    July 30, 2010.

      Victor G. Suggs, pro se.
   BRYAN, Judge.

Victor G. Suggs (“the father”) appeals from a divorce judgment entered by the Covington Circuit Court insofar as it ordered him to pay child support for the child born during his marriage to Melissa Suggs (“the mother”).

The father, proceeding pro se, filed a complaint for a divorce in the trial court on April 25, 2009. In his complaint, the father alleged that one child had been born of the marriage between him and the mother, that there was no marital property to be disposed of, and that, at the time the complaint was filed, the father was incarcerated in the St. Clair Correctional Facility near Springville. On May 11, 2009, the mother, also proceeding pro se, filed an answer to the father’s complaint for a divorce, and she requested child support. The mother subsequently filed an amended answer to the father’s complaint for a divorce and filed a counterclaim for a divorce.

The trial court conducted an ore tenus hearing on September 3, 2009, and only the mother was present for the hearing. The mother stated that she was not employed and that the father had been a truck driver and had “had a restaurant and stuff like that” before he became incarcerated in 2002 or 2003. The mother stated that she thought that the father had been sentenced to 150 years in prison and that the child, who was 11 years old at the time of the hearing, was insured by Medicaid. At the close of the hearing, the trial court stated that it would “impute the minimum wage to [the father] and nothing for [the mother]” for purposes of establishing a child-support award.

On September 9, 2009, the trial court entered a judgment divorcing the parties on the ground of incompatibility and stating that the parties had previously divided all property and debts. The judgment ordered the father to pay child support in the amount of $232.50 a month; the judgment stated that Rule 32, Ala. R. Jud. Admin., had been followed and that the father’s income had been imputed. The father was also ordered to pay for all “medical, dental, eye care, orthodontic, and prescription drug expenses” that were not covered by the child’s insurance.

The father filed a motion to alter, amend, or vacate the divorce judgment pursuant to Rule 59, Ala. R. Civ. P. The father argued that the trial court had erred by ordering him to pay child support and all uncovered medical expenses of the child because, in light of the fact that he was incarcerated and “serving multiple life sentences,” he had no opportunity to obtain income in the foreseeable future. The trial court denied the father’s post-judgment motion, and the father timely appealed to this court.

On appeal, the father maintains that the trial court exceeded its discretion by failing to follow the child-support guidelines found in the appendix to Rule 32. He argues that the trial court erred by imputing income to him for the purpose of entering a child-support order because it was undisputed that he was incarcerated and because he does not have any income. He also argues that the trial court erred when it ordered him to pay child support in light of the fact that neither party filed the appropriate standardized child-support forms as required by Rule 32(E), Ala. R. Jud. Admin.

This court has consistently held that “matters relating to child support ‘rest soundly within the trial court’s discretion, and will not be disturbed on appeal absent a showing that the ruling is not supported by the evidence and thus is plainly and palpably -wrong.’ ” Scott v. Scott, 915 So.2d 577, 579 (Ala.Civ.App.2005) (quoting Bowen v. Bowen, 817 So.2d 717, 718 (Ala.Civ.App.2001)).

Initially, we note that a child in this State has an inherent right to receive support from his or her parents. Ex parte Tabor, 840 So.2d 115, 120 (Ala.2002) (quoting with approval Willis v. Levesque, 402 So.2d 1003, 1004 (Ala.Civ.App.1981)). However, an obligor parent’s ability to pay child support is always an underlying factor to consider in setting a child-support award. See Comment to Rule 32, Ala. R. Jud. Admin, (as amended to conform to amendments effective October 4, 1993) (“The guidelines will provide an adequate standard support for children, subject to the ability of their parents to pay....”); and Burgett v. Burgett, 995 So.2d 907, 913 (Ala.Civ.App.2008) (quoting Dyas v. Dyas, 683 So.2d 971, 973-74 (Ala.Civ.App.1995)) (when the combined gross income of both parents exceeds the amount set forth in the child support guidelines the amount of child support awarded “ ‘must rationally relate to the reasonable and necessary needs of the child ... and must reasonably relate to the obligor’s ability to pay for those needs....’” (emphasis omitted)).

Despite the general rule that the obligor’s ability to pay is always considered when establishing or modifying an award of child support, Rule 32 provides a trial court the authority to impute income to a parent if that court finds that the parent is voluntarily unemployed or underemployed. See Rule 32(B)(5), Ala. R. Jud. Admin. (“If the court finds that either parent is voluntarily unemployed or underemployed, it shall estimate the income that parent would otherwise have and shall impute to that parent that income; the court shall calculate child support based on that parent’s imputed income.”). Although the trial court, in its judgment, did not explicitly conclude that the father was voluntarily unemployed, such a finding was implicit in the judgment that imputed income to the father despite his unemployment. See Stone v. Stone, 26 So.3d 1228, 1230 (Ala.Civ.App.2009) (quoting Turner v. Turner, 745 So.2d 880, 883 (Ala.Civ.App.1999)) (“ ‘The trial court did not make the explicit finding that the husband was voluntarily unemployed or underemployed. However, we conclude that such a finding is implicit in the language of the trial court’s judgment [imputing income to the husband].’ ”). It is well settled that “the determination that a parent is voluntarily unemployed or underemployed ‘is to be made from the facts presented according to the judicial discretion of the trial court.’ ” Clements v. Clements, 990 So.2d 383, 394 (Ala.Civ.App.2007) (quoting Winfrey v. Winfrey, 602 So.2d 904, 905 (Ala.Civ.App.1992)).

This court has never addressed whether, in establishing an award of child support, a trial court may impute income to a parent who is incarcerated. However, we have previously stated that a trial court must exercise its discretion in child-support matters that concern an incarcerated obli-gor parent. See Grogan v. Grogan, 608 So.2d 397, 398 (Ala.Civ.App.1992) (trial court has discretion to suspend the accrual of child support while an obligor parent is incarcerated); and Alred v. Alred, 678 So.2d 1144, 1146 (Ala.Civ.App.1996) (in a proceeding to modify child support, the fact that the father was unemployed and incarcerated was a matter for consideration in determining his ability to pay child support). We have also consistently recognized the duty of a parent to provide support for his or her children. See, e.g., P.Y.W. v. G.U.W., 858 So.2d 265, 267 (Ala.Civ.App.2003) (“It is a basic principle of Alabama law that a parent has a duty to support his or her minor child and that this duty of support is a fundamental right of all minor children.”); and Davenport v. Hood, 814 So.2d 268, 275-76 (Ala.Civ.App.2000) (holding that contempt sanctions can be pursued to enforce a judgment for past-due child support even after a child has reached the age of majority or has become emancipated and recognizing that to do otherwise could allow an obligor parent to avoid his or her duty to support his or her children during their minority).

Because the trial court heard evidence that would support a finding that the father’s unemployment was caused by his voluntary conduct, i.e., his criminal conduct that resulted in convictions that led to a 150-year jail sentence, the trial court did not exceed its discretion by concluding that the father was voluntarily unemployed. We recognize that the father, unlike other individuals who are voluntarily unemployed, does not have the option to remedy his situation by seeking employment. However, the father is similarly situated to other parents who are voluntarily unemployed because his unemployment was a result of actions and conduct that were within his control. “‘Criminal activity foreseeably can lead to incarceration and such activity is obviously within an individual’s control.’ ” Yerkes v. Yerkes, 573 Pa. 294, 307, 824 A.2d 1169, 1176 (2003) (quoting In re Marriage of Thurmond, 265 Kan. 715, 729, 962 P.2d 1064, 1073 (1998)). Thus, we conclude that the trial court did not exceed its discretion in concluding that the father was voluntarily unemployed and that he remained obligated to support his child despite the fact that he was incarcerated at the time the judgment was entered.

We recognize that this court has previously held that, when it has been demonstrated that a parent has no ability to pay child support, it is improper for the trial court to order a parent to pay child support. Hannah v. Hannah, 582 So.2d 1125, 1126 (Ala.Civ.App.1991). However, there is no evidence to indicate that the father does not have the ability to pay child support. We note that “[a] divorced parent’s duty to contribute to the maintenance of his or her minor children is not limited to his or her wages, but may also include income derived from property holdings and any other earning capacity.” State ex rel. Smith v. Smith, 631 So.2d 252, 254 (Ala.Civ.App.1993); and Aired v. Aired, supra. See also Rule 32(B)(2), Ala. R. Jud. Admin, (defining “gross income” to include “income from any source,” including other than employment-related income, such as dividends, interest, trust income, gifts, and prizes).

Because the trial court found, at least implicitly, that the father was voluntarily unemployed, the trial court was required to impute income to the father. See Rule 32(B)(5) (“If the court finds that either parent is voluntarily unemployed ..., it shall estimate the income that parent would otherwise have and shall impute to that parent that income.... ” (emphasis added)). The second sentence of Rule 32(B)(5) provides the method for determining the amount of income to impute to a parent who has been determined by a trial court to be voluntarily unemployed or underemployed. On appeal, the father has not challenged the amount of income that was imputed to him for purposes of setting his child-support obligation. Thus, we will not address whether the trial court exceeded its discretion by imputing minimum-wage income to the father. See Tidwell v. Pritchett-Moore, Inc., 12 So.3d 83, 88 (Ala.Civ.App.2008) (“An issue not raised on appeal is deemed waived, and we need not address it.”).

The father also states, in the statement-of-the-issues section of his brief on appeal, that the trial court erred in ordering him to pay the uncovered medical expenses of the child. However, the father makes no further argument in his brief regarding the trial court’s order requiring him to pay the child’s uncovered medical expenses. Because the father has not properly presented this argument for review on appeal, we will not address it. See Rule 28(a)(10), Ala. R.App. P.; Tucker v. Cullman-Jefferson Counties Gas Dist., 864 So.2d 317, 319 (Ala.2003) (“ When an appellant fails to properly argue an issue, that issue is waived and will not be considered. Boshell v. Keith, 418 So.2d 89 (Ala. 1982).’ Asam v. Devereaux, 686 So.2d 1222, 1224 (Ala.Civ.App.1996).”).

Finally, the father argues that the trial court erred in ordering him to pay child support in light of the fact that the parties did not file the appropriate standardized forms that are required to be filed pursuant to Rule 32(E), Ala. R. Jud. Admin.

“This court has held that if the record does not reflect compliance with Rule 32(E), Ala. R. Jud. Admin, (which requires the filing of ‘Child Support Obligation Income Statement/Affidavit’ forms (Forms CS-41) and a ‘Child Support Guidelines’ form (Form CS-42)), and if child support is made an issue on appeal, this court will remand (or reverse and remand) for compliance with the rule. See Martin v. Martin, 637 So.2d 901, 903 (Ala.Civ.App.1994). On the other hand, this court has affirmed child-support awards when, despite the absence of the required forms, we could discern from the appellate record what figures the trial court used in computing the child-support obligation. See, e.g., Dunn v. Dunn, 891 So.2d 891, 896 (Ala.Civ.App.2004); Rimpf v. Campbell, 853 So.2d 957, 959 (Ala.Civ.App.2002); and Dismukes v. Dorsey, 686 So.2d 298, 301 (Ala.Civ.App.1996). Nevertheless, without the child-support-guidelines forms, it is sometimes impossible for an appellate court to determine from the record whether the trial court correctly applied the guidelines in establishing or modifying a child-support obligation. See Horwitz v. Horwitz, 739 So.2d 1118, 1120 (Ala.Civ.App.1999).”

Hayes v. Hayes, 949 So.2d 150, 154 (Ala.Civ.App.2006).

The father correctly asserts that the record does not contain the child-support forms required by Rule 32(E). Evidence at the final hearing indicated that the mother was not employed and that the child’s health insurance was provided through Medicaid. There was no evidence regarding the cost of child care. See Rule 32(C)(2), Ala. R. Jud. Admin. (“A total child-support obligation is determined by adding the basic child-support obligation, work-related child-care costs, and health-insurance costs.”). At the final hearing, the trial court stated that it would calculate child support by imputing minimum-wage income to the father “and nothing for [the mother].” No application of the income figures specified by the trial court to the schedule of basic child-support obligations in Rule 32 supports the $232.50 monthly child-support award that the father was ordered to pay. Furthermore, there is no indication that the trial court intended to deviate from the child-support guidelines. See State Dep’t of Human Res. v. J.B., 628 So.2d 889, 891 (Ala.Civ.App.1993) (“[I]n order for a court to deviate from the guidelines, there must be written findings of fact based upon evidence presented to the court to support such a deviation.”). “[T]his court cannot affirm a child-support order if it has to guess at what facts the trial court found in order to enter the support order it entered .... ” Mosley v. Mosley, 747 So.2d 894, 898 (Ala.Civ.App.1999). Based on the meager record in this particular case, without the standardized child-support forms required by Rule 32, we are unable to determine whether the trial court appropriately applied the child-support guidelines in establishing the award of child support. Accordingly, we must reverse the judgment establishing the child-support award and remand the cause for the trial court to determine the father’s child-support obligation in compliance with Rule 32. On remand, “[t]he trial court may, in its discretion, compute the obligation according to the guidelines or expressly state the reasons why a deviation from the guidelines is necessary in this case.” Hayes v. Hayes, 949 So.2d at 154-55. See also Rule 32(A).

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

MOORE, J., concurs in the result, but dissents from the rationale.

MOORE, Judge,

concurring in the result, but dissenting from the rationale.

On April 25, 2009, Victor G. Suggs (“the father”) filed a complaint in the Covington Circuit Court (“the trial court”) seeking a divorce from Melissa Suggs (“the mother”). In the complaint, the father alleged that one child had been born of the parties’ marriage, that he was incarcerated in the St. Clair County Correctional Facility, and that there was no real or personal marital property to be divided. With that complaint, the father filed an affidavit of substantial hardship in which he indicated that he had no income and no liquid assets. Based on that affidavit, the trial court granted the father a waiver of the filing fees. The mother subsequently filed an answer, an amended answer, and a counterclaim in which she, among other things, admitted all the allegations in the complaint, sought custody of the parties’ child, and requested child support.

After setting the case for a final hearing and continuing the hearing one time, the trial court conducted a trial on September 3, 2009, at which the only evidence presented consisted of the oral testimony of the mother. In that testimony, the mother stated that one child, then 11 years old, had been born of the parties’ marriage, that no joint property existed, and that she was seeking child support “pursuant to the guidelines.” The mother then testified that she was currently unemployed and that, although the father previously had “had a restaurant” and previously had worked as a truck driver, he had been incarcerated since 2002 or 2003, he was serving “like 150 years,” and she did not expect him to be released. Immediately following that testimony, the trial court stated: “Okay. What we’ll do is just figure it on minimum wage and impute minimum wage to him and nothing for her and get it set up that way.” The mother then testified that the child was on Medicaid, to which the trial court responded that the father would have to be responsible for any medical expenses not covered by Medicaid. The trial court subsequently entered a written judgment to that effect on September 9, 2009, setting the father’s monthly child-support obligation at $232.50, purportedly pursuant to Rule 32, Ala. R. Jud. Admin.

The father subsequently filed a motion to alter, amend, or vacate the judgment pursuant to Rule 59, Ala. R. Civ. P., in which he asserted that the trial court had erred in ordering him to pay child support ■without any evidence to support the $232.50 award and in light of the fact that the father was “presently incarcerated in the Alabama Dept, of Corrections with multiple life sentences” and that the father “will have no means or opportunity for gainful employment to obtain an income in the foreseeable future.” The trial court denied that motion, and the father timely appealed.

On appeal, the father argues that the trial court exceeded its discretion by imputing income to him even though he is incarcerated and by not receiving into evidence the required child-support-guideline forms and income statements. Because I believe the father is correct as to the first issue, I believe the second issue is moot.

Rule 32, Ala. R. Jud. Admin., governs the calculation of child support. Derie v. Derie, 689 So.2d 142, 144 (Ala.Civ.App.1996). Rule 32(B)(1), Ala. R. Jud. Admin., defines “income” as the “actual gross income of a parent, if the parent is employed to full capacity, or the actual gross income the parent has the ability to earn if the parent is unemployed or underemployed.” Rule 32(B)(5), Ala. R. Jud. Admin., provides, in pertinent part:

“If the court finds that either parent is voluntarily unemployed or underemployed, it shall estimate the income that parent would otherwise have and shall impute to that parent that income; the court shall calculate child support based on that parent’s imputed income. In determining the amount of income to be imputed to a parent who is unemployed or underemployed, the court should determine the employment potential and probable earning level of that parent, based on that parent’s recent work history, education, and occupational qualifications, and on the prevailing job opportunities and earning levels in the community.”

Pursuant to those provisions, a court shall impute income to a parent upon a determination, express or implied, that the parent is voluntarily unemployed. T.L.D. v. C.G., 849 So.2d 200, 206 (Ala.Civ.App.2002).

In imputing minimum-wage income to the father, the trial court impliedly found that the father was capable of obtaining and performing employment at such a wage level but that he was voluntarily electing not to do so. However, the only relevant evidence in the record shows that the father is incarcerated, is serving a 150-year sentence, and is not expected to be released from prison. That evidence suggests that the father cannot obtain employment at any wage level because he is involuntarily restrained.

In Alred v. Alred, 678 So.2d 1144, 1146 (Ala.Civ.App.1996), this court stated:

“The fact that the father is in prison and unemployed is a matter for consideration in determining his ability to pay. Grogan v. Grogan, 608 So.2d 397 (Ala.Civ.App.1992). If the father nevertheless has property or funds available to him, support may be ordered therefrom. Smith v. Smith, 631 So.2d 252 (Ala.Civ.App.1993).”

(Emphasis added.) As I read Aired, which was issued almost 9 years after the adoption of Rule 32, Ala. R. Jud. Admin., on October 1, 1987, a court must consider that incarceration prevents a parent from earning wages but may nevertheless award child support from other income or assets of the incarcerated parent. Applying Aired, the trial court could not have lawfully imputed income to the father on the theory that the father was voluntarily unemployed due to the commitment of the criminal actions that led to his incarceration.

To characterize unemployment traceable to incarceration as voluntary unemployment, this court would have to overrule Aired. Finding no compelling reason to do so, I believe the court should continue to follow that precedent. Because the majority has treated the issue as one of first impression and has adopted a rule contrary to Aired, I respectfully dissent from the rationale employed by the majority. Nevertheless, for the reasons expressed in this special writing, I concur in the result to reverse the trial court’s judgment.

      . The mother's initial response to the father’s complaint for a divorce does not contain a certificate of service. On appeal, the father alleges that the mother never requested child support, indicating that the father was not aware of the mother's request for child support. However, our caselaw indicates that a parent has a duty to pay support for a child even if support is not specifically requested by the other parent. See Blasdel v. Blasdel, 27 So.3d 1288, 1290 n. 4 (Ala.Civ.App.2009).

      . The father also argues, without citing any authority to support his argument, that the trial court erred by entering a judgment ordering him to pay child support in light of the fact that he was not present for the ore tenus hearing. We will not address this issue on appeal because the father failed to present this issue to the trial court in a postjudgment motion. See Smith v. Equifax Servs., Inc., 537 So.2d 463, 465 (Ala.1988) ("[An appellate court] will not reverse the trial court’s judgment on a ground raised for the first time on appeal.”).

      . We disagree with the assertion made by Judge Moore in his dissent that, in order "[t]o characterize unemployment traceable to incarceration as voluntary unemployment, this court would have to overrule Alred [v. Alred, 678 So.2d 1144 (Ala.Civ.App.1996)].” 54 So.3d at 929. Aired is a child-support-modification case that requires a trial court to consider the fact that a parent is incarcerated when determining that parent's ability to pay child support and states that a trial court is not limited to considering only a parent’s wages in determining whether the parent has the ability to pay child support. See State ex rel. Smith v. Smith, 631 So.2d 252 (Ala.Civ.App.1993). Even the most broad reading of Aired does not support a conclusion that a trial court could not determine that an incarcerated parent is voluntarily unemployed for purposes of establishing a child-support obligation.

      . We note that the father had means of producing evidence on his behalf at the ore tenus hearing, but the record indicates that he did not pursue those means. The father could have requested to be present at the ore tenus hearing, or he could have sought leave of the court to provide his testimony pursuant to Rule 30 or Rule 31, Ala. R. Civ. P. See Veteto v. Swanson Servs. Corp., 886 So.2d 756, 767 (Ala.2003) (holding that "an incarcerated civil plaintiff is not entitled to be brought from the penitentiary to testify in his own behalf. The proper remedy is for the incarcerated civil plaintiff to take his or her own testimony, either upon written questions under Rule 31, Ala. R. Civ. P., or upon oral examination under Rule 30, Ala. R. Civ. P.”).

      . Section 14-8-2, Ala.Code 1975, authorizes the Alabama Department of Corrections to promulgate regulations allowing for minimum-security prisoners to participate in paid employment. The Department of Corrections has created a work-release program for selected inmates as a means of "preparing [inmates] for release" and "to aid [inmates] in making the transition from a structured institutional environment[ ] back into the community.” See Department of Corrections’ Admin. Reg. No. 410.I.A. Because the father is not expected to be released back into the community and is serving a 150-year sentence, it appears that he is not eligible for paid employment under § 14-8-2.

      . The main opinion suggests that the father has some other assets or income from which to pay child support or, at least, that the father failed to prove that he did not have some other means of paying child support. 54 So.3d at 925. However, the trial court did not award child support from any other source other than the imputed wages of the father, probably because the trial court had already granted the father indigent status based on the father’s affidavit, which indicated the father had no other assets or income from which to pay child support. At any rate, any discussion of the possibility that the father may have had some other means of payment is misplaced based on the record before us. I note, however, that there is no evidence in the record from which the trial court could have determined that the father has assets or other income from which he could pay child support.


author: BRYAN, Judge.

text:
    Caroline SCARBOROUGH (Griswold) v. Joseph B. SCARBOROUGH.
    2090014.
    Court of Civil Appeals of Alabama.
    July 30, 2010.

      Joel M. Nomberg of Nomberg & Maddox, P.C., Dothan, for appellant.
    Matthew C. Lamere, Dothan, for appel-lee.
   BRYAN, Judge.

Caroline Scarborough (Griswold) (“the mother”) appeals from a judgment of the Houston Circuit Court that modified custody of the parties’ child (“the child”) from the mother to Joseph B. Scarborough (“the father”).

I. Procedural History

The record indicates that the child, who was born in August 2004, was the only child born during the parties’ marriage. The record further indicates that the parties were divorced in March 2005 and that, pursuant to that judgment, the parties were awarded joint legal custody of the child and the mother was awarded physical custody of the child, subject to the father’s award of visitation. On March 8, 2006, the father filed a petition to modify his visitation rights with the child. In his petition, the father alleged that there had been a material change in circumstances since the entry of the divorce judgment and that the mother, among other things, had denied his visitation with the child. The mother responded and denied the material allegations in the father’s petition to modify visitation.

On June 21, 2006, the mother filed a notice in the trial court of her intent to change the principal residence of the child on August 5, 2006. On July 6, 2006, the father filed a motion for pendente lite relief or, in the alternative, a motion for an expedited hearing. In his motion, the father stated his objection to the mother’s intent to change the principal residence of the child and he alleged that the mother had not complied with the Alabama Parent-Child Relationship Protection Act, § 30-3-160 et seq., Ala.Code 1975 (“the Act”). The father requested pendente lite custody of the child or, in the alternative, an order from the trial court that would prohibit the mother from moving the child to Lawrenceville, Georgia, before a hearing could be conducted. The case-action summary indicates that, also on July 6, 2006, the father filed an amended petition requesting primary physical custody of the child. The record contains a handwritten notation in the case-action summary, signed by the trial-court judge assigned to the case at that time, that states: “Temporary legal custody granted to the father. Child shall reside with mother so long as mother remains in Alabama. Visitation remains as ordered originally.”

On July 19, 2006, the mother filed a motion requesting that the order granting the father temporary legal custody of the child be set aside because she did not receive notice of the father’s motion for pendente lite relief before the trial court entered its order. The mother also requested that the trial court enter a temporary order that permitted her to change the principal residence of the child.

The record indicates that a hearing was conducted on August 2, 2006, and on August 4, 2006, the trial court entered an order that stated: “Upon hearing evidence, the court finds that the parties have joint custody of the ... child ... as previously ordered. The mother is given permission to take the ... child temporarily to Georgia. The father’s petition for custody is to remain open, pending cooperation of the mother for visitation.”

On March 22, 2007, the trial court conducted an ore tenus hearing that was a continuation of the hearing conducted on August 2, 2006. At the conclusion on the March 22, 2007, hearing, the trial-court judge stated, on the record, that he was going to award the parties joint custody of the child, with alternating, physical custody on a three-month basis, and that the parties would “just have to try it that way.” On April 2, 2007, the trial court entered an order (“the April 2007 custody order”) that awarded “joint care and custody” of the child to the parties. The trial court further awarded physical custody of the child to the father until July 1, 2007, subject to the visitation rights of the mother. The order then awarded physical custody of the child to the mother from July 1, 2007, until October 1, 2007, subject to the visitation rights of the father. The trial court then set “[a] hearing to review custody” on October 3, 2007.

On August 2, 2007, the father filed a motion for immediate pendente lite custody or, in the alternative, a motion for an expedited hearing. In his motion, the father alleged that the child had been exposed to domestic violence between the mother and her new husband. The mother objected, and the trial court set a hearing on August 15, 2007. The trial judge entered a handwritten notation in the case-action summary on August 15, 2007, that stated: “This court’s [April] 2007 [custody order] shall remain in full force and effect, provided that [the] mother’s husband ... shall not be in the presence of the ... child.” The case was set for a final hearing on October 3, 2007. There is no indication in the record that a hearing ever took place on October 3, 2007.

On September 16, 2008, the mother filed a motion to set a hearing for review. The mother alleged that her “visitation” period would end on October 4, 2008, and that a move back to the father’s home would be disruptive for the child who was, at that time, enrolled in a half-day pre-kindergar-ten program in Georgia. The allegations in the mother’s motion indicated that the parties were still exchanging physical custody of the child every three months. The mother requested the trial court to allow her to have “continued primary physical custody” of the child. After a request for a continuance, the case was set for a final hearing on June 22, 2009.

Before, the start of the June 2009 hearing, a discussion was held on the record between the parties’ attorneys and the trial-court judge regarding what issues were before the court. The parties agreed that visitation and custody of the child needed to be determined because the joint-physical-custody arrangement that the parties had been exercising since April 2007 could not continue in light of the fact that the child was nearing school age. The father’s attorney stated that the trial court was going to have to determine what arrangement was in the best interest of the child. The mother’s attorney agreed with that assessment of the case, and the trial court proceeded to hear ore tenus testimony.

On July 7, 2009, the trial court entered a judgment (“the July 2009 judgment”) that awarded the father “care, custody, and control” of the child, subject to specified visitation rights of the mother, and ordered the mother to pay the father child support in the amount of $312 a month. On August 4, 2009, the mother filed a postjudgment motion pursuant to Rule 59, Ala. R. Civ. P. In her postjudgment motion, the mother argued, among other things not pertinent to this appeal, that the trial court had allowed her to move to Georgia and “share visitation without such being conditional or reflective on it being a material change [in circumstances].” However, she also stated that “[t]he previous order only reflects that the parties would have joint care and custody for a period of [three] months each with the party [that] was the non-custodial party at the time having visitation.”

On September 4, 2009, the trial court entered an order amending the July 2009 judgment and stating that the evidence had demonstrated a material change in circumstances since the entry of the divorce judgment and that the custody-modification standard set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984), had been met. The trial court also specifically stated that it had found the testimony of Linda Varner, one of the child’s counselors, extremely persuasive and that “a custody/visitation arrangement whereby the mother has primary custody would actually work to preclude the father from having a meaningful relationship with [the child].” The trial court denied all other issues raised by the mother in her postjudgment motion, and the mother timely appealed.

II. Issues

On appeal, the mother presents three issues for review by this court: (1) whether the trial court exceeded its discretion in awarding the father custody of the child, (2) whether the trial court erred by applying the McLendon standard in this case, and (3) whether the trial court erred by failing to comply with certain provisions of the Act.

III. Facts

At the time of the June 2009 hearing, the child was almost five years old. The mother had moved to Lawrenceville in August 2006, after the entry of the August 4, 2006, order, and she testified that she had remarried three days after she had moved to Lawrenceville. The mother stated that it was approximately 250 miles from her home in Lawrenceville to the father’s home in Dothan. The mother stated that she lived in a four-bedroom, two-bathroom home in a good neighborhood and that her mother and her sister lived approximately one mile away from her home. The mother was employed as a social worker for the Center of Neuroscience. At the time of the June 2009 hearing, the mother had obtained a divorce from the man she had married in August 2006, and she lived with the child, in three-month increments, and the child’s younger half brother (“the half brother”). The mother stated that she had never tried to influence the child about where he was going to live.

In January 2008, the mother took the child to Dr. Eric Fisher, a psychologist, for counseling to help the child transition between living in her home and then living in the father’s home. The mother stated that Dr. Fisher was very helpful “in the beginning” but that she stopped taking the child to see Dr. Fisher because he did not contact her. The mother then took the child to see Dr. David Ghostley in September 2008, approximately 10 days after the child last saw Dr. Fisher.

Dr. Ghostley, a licensed clinical psychologist, testified that he had met with the child and the mother on three occasions between September 2008 and the June 2009 hearing. Dr. Ghostley stated that the child appeared to be anxious and that the mother had told him that the child became distressed around the times that he had to leave Lawrenceville to live with the father for three months. Dr. Ghostley stated that he did not see any reason that the child should not live in Georgia with the mother because the child had a lot of support in Georgia and because the mother was meeting all the needs of the child. According to Dr. Ghostley, the fact that the child had a strong bond with his half brother should be considered when making a determination regarding the best interests of the child.

Dr. Ghostley testified that his role was evaluative rather than therapeutic, and he admitted that he had recommended that the child live with the mother after one 90-minute counseling session with the mother and the child. Dr. Ghostley admitted that he had never contacted the father or Linda Varner, the child’s therapist in Alabama. Dr. Ghostley had also never spoken with Dr. Fisher, the therapist that the mother had consulted before consulting Dr. Ghost-ley. Dr. Ghostley admitted that it caused him concern that Dr. Fisher had reported that the mother was not “up front” with the child, and he was also concerned that the child had made a statement to the effect that “Dr. Ghostley is going to help me stay with my momma forever.” Dr. Ghostley testified that the child had never said anything negative about the father, and he did not believe that the child was “at risk” with either the mother or the father.

Linda Varner, a family therapist, testified that the father first brought the child to see her in December 2007. Since that time, Varner had seen the child approximately once a week during the father’s three-month custodial periods. Varner stated that the child was counseled independently but that the father had been included in some sessions. Varner stated that she would have liked to include the mother in a counseling session with the child, but she was unable to get in contact with the mother. Varner stated that the child had been counseled by Dr. Fisher while the mother was exercising custody of the child and that she and Dr. Fisher had been in communication with one another since she started seeing the child. Dr. Fisher had given her a report that corresponded with what she had observed in therapy with the child, and she believed that she and Dr. Fisher “were on the same page.” Varner stated that she was of the opinion that the best interests of the child would be served if he were placed in the custody of the father. Varner stated that she would not have given an opinion regarding the best interest of the child after one meeting with the child and the father.

Varner stated that the child had high levels of anxiety and would often cry when he would convey things that had been said to him about his custody. Varner stated that she had no knowledge of the father’s telling the child things related to his custody. Varner admitted that she had worked with the child’s paternal grandmother approximately three years before the final hearing, but, she stated, she had never met the father until he brought the child to see her, and, she said, the fact that she knew the paternal grandmother had nothing to do with her testimony.

The father testified that he had contacted the mother several times about coming to a counseling session with Varner, but the mother had never attended a session with Varner. The father stated that he had attended three or four counseling sessions with Dr. Fisher in Atlanta, Georgia, and that the mother and the child had been present for those sessions. The father stated the counseling sessions with Dr. Fisher had been helpful and that, because of the counseling sessions with Dr. Fisher, there was a period when the custody exchanges had been easier for the parties and the child.

The father stated that he had traveled to Georgia to visit the child during the mother’s custodial periods but that he had had a difficult time seeing the child outside his normal visitation times. The father stated that, based on the past experience of the parties, if the mother was awarded primary physical custody of the child he did not believe that he would see the child on a regular basis. The father testified that visitation goes more smoothly when the custody proceedings are “hanging over” the mother’s head.

The father stated that the mother’s former husband, the father of the half brother, was from the Dothan area and that, when the mother’s former husband had visitation with the child’s half brother, the father made an effort to allow the child to spend time with his half brother. The father remarried in March 2008, and he and his wife had a daughter who was nine months old at the time of the June 2009 hearing. According to the father, the child had a close relationship with his half sister. The father stated that he lived in a three-bedroom, two-bathroom home and that both of his children had their own bedroom. The father’s wife worked part time, and the father worked from 9:00 a.m. to 4:80 p.m. on Monday through Thursday, and from 9:00 a.m. to 12:00 p.m. on Fridays. He stated that his hours were flexible because he owned the business that he worked for, a medical-equipment company, and he earned approximately $35,000 a year.

Both parties testified regarding difficulty cooperating with one another when it came to exercising visitation, although the mother also stated that she thought the parties had cooperated. The record indicated that both parties had, at times, refused to allow the other party visitation in addition to what was required by court order. The father stated that he did not think that the mother was a good mother to the child, and he stated that his opinion was based on things that the child had told him about events that had been “traumatic” for the child.

IV. Discussion

On appeal, the mother first argues that the trial court exceeded its discretion by modifying custody of the child in favor of the father. The mother argues that the Act applied to the June 2009 judgment and that she met her burden of rebutting the presumption found in § 80-3-169.4, Ala. Code 1975, that changing the principal residence of the child is not in the best interests of the child. She argues that the father failed to present evidence indicating that the best interests of the child would not be served by changing the principal residence of the child. The mother further argues that the evidence submitted by the father did not justify denying the mother the right to relocate with the child. Finally, the mother argues that the trial court failed to address the factors set forth in § 30-3-169.3(a), Ala.Code 1975.

In response to the mother’s argument, the father argues that the Act no longer applied in this case because the trial court had allowed the mother to move to Georgia with the child, albeit “temporarily,” in August 2006, but then modified custody of the child in the April 2007 custody order by awarding the parties joint legal and physical custody of the child. The parties had been exercising this joint-physical-custody arrangement for more than two years before the June 2009 hearing, which was conducted after the mother petitioned the court to schedule a “review hearing” in light of the fact that the child would be starting to attend school. The transcript from the June 2009 hearing indicates that both the mother’s attorney and the father’s attorney believed that neither party had the burden of proving the custody-modification standard set forth in Ex parte McLendon, supra, and that the best-interest-of-the-child standard applied to the pending custody issues.

The April 2007 custody order appears to have addressed the petitions pending before the trial court at that time, specifically, the father’s petition for custody modification and his objection to the relocation of the principal residence of the child. However, the April 2007 custody order also indicates that it is temporary in nature because the order scheduled a review hearing for October 8, 2007, although there is no indication in the record that the scheduled review hearing took place.

If the April 2007 custody order was a pendente lite order, then the Act applied to the father’s still-pending request for custody modification and his objection to the mother’s request to change the principal residence of the child. However, if the April 2007 custody order was a “temporary” custody order, then the April 2007 custody order was a final, appealable judgment that modified custody of the child. Thus, we must determine the nature of the April 2007 custody order because the questions regarding whether the Act applied to the June 2009 judgment, and what custody-modification standard applied, depend on whether the April 2007 custody order was a temporary custody order, i.e., a custody judgment, or a pendente lite order. See Sims v. Sims, 515 So.2d 1, 2 (Ala.Civ.App.1987) (discussing the distinguishing factors between pendente lite orders and temporary custody orders and stating that “temporary custody orders are distinguishable from pendente lite orders because temporary orders constitute final orders from which an appeal will lie to this court, whereas pendente lite orders are not ap-pealable”).

In Hodge v. Steinwinder, 919 So.2d 1179 (Ala.Civ.App.2005), this court, discussing Rich v. Rich, 887 So.2d 289 (Ala.Civ.App.2004) (Murdock, J., with one Judge concurring and one Judge concurring in the result), stated:

“[In Rich, ] this court explained the distinction between a pendente lite custody award and a custody award that, for lack of a better term, might be called a ‘trial’ or ‘experimental’ custody arrangement, made by the trial court in an attempt to ‘make it possible to base any subsequent change in custody on the history of the parties’ relationships that developed during th[e] [trial] period.’ 887 So.2d at 300.
“In Rich, the trial court had entered a series of what it termed ‘temporary’ custody orders in an attempt to determine which of the two parents ... would be the more fit custodian. This court was called upon to determine whether any of the so-called ‘temporary’ custody orders was a final judgment — rather than a mere pendente lite order — for purposes of applying the Ex parte McLendon, 455 So.2d 863 (Ala.1984), presumption to a custody-modification request.
“Relying on the opinion of our supreme court in Ex parte J.P., 641 So.2d 276 (Ala.1994), this court in Rich first explained that all custody orders are ‘temporary’ in the sense that they are modifiable under appropriate circumstances. Thus, we said, the use of the term ‘temporary custody is not helpful in deciding whether a particular custody order constitutes a final judgment. Instead, this court pointed out that the pertinent inquiry is whether a custody award is a pendente lite order — which is effective only during the pendency of the litigation and is usually replaced by the entry of a final judgment at the end of the litigation — or whether a custody award is a ‘custody order’ — which is final (and therefore appealable) until one of the parties succeeds in a request to modify the order.
“ ‘The phrase “pendente lite” is Latin for “while the action is pending.” Black’s Law Dictionary 1154 (7th ed. 1999). The manner in which pendente lite child-custody orders are treated allows trial courts, in making their final determinations of custody, to take into consideration developments that occur pending the litigation— that is, developments in the lives of the parties and the child that naturally occur during the unavoidable gap in time between the filing of an action and the time when the parties are ready for, and the court can schedule, a final hearing in the normal course of our judicial process.’
“Rich v. Rich, 887 So.2d at 301 n. 3. This court concluded that the circuit court’s ‘temporary custody orders in Rich were not pendente lite orders because they did not merely allow the circuit court to consider ‘developments in the lives of the parties and the child that naturally oceur[red] during the unavoidable gap in time between the filing of [the] action and the ... final hearing’ in the case. We explained that considering the circuit court’s ‘temporary custody orders as pendente lite determinations would be
“ ‘[s]anctioning ... [a] distortion] [of] the [judicial] process by allowing a trial court to postpone the scheduling of a final hearing pending future developments in the lives of the parties.’
“Rich v. Rich, 887 So.2d at 301 n. 3. We stated:
“ ‘In the present case, the successive “temporary custody” awards ... were not made with the “pendency of the [existing] litigation” in mind. Ex parte J.P., 641 So.2d [276] at 278 [ (Ala.1994) ]. Instead, each one of those judgments was a custody award made by the trial court in such a manner as to allow more facts to be developed — i.e., to allow a trial period with the custodial parent and to make it possible to base any subsequent change in custody on the history of the parties’ relationships that developed during that period.’ '
“Rich v. Rich, 887 So.2d at 300 (emphasis added). Finally, this court held:
“ ‘It is clear that the custody awards at issue in the present case were not made by the trial court pending the litigation of the existing case, but instead were made in anticipation of a “new case,” i.e., newly developed facts, potentially being presented to the trial court at some future date. That is, they were custody awards intended to remain in place until such time, well into the future, as the trial court would “review” the case to determine whether there should be a modification of custody based upon changed circumstances that might have come into existence since the last custody award. Such awards are not penden-te lite awards; rather, they are “temporary custody” awards of the nature addressed in Ex parte J.P., [641 So.2d 276 (Ala.1994),] Sims [v. Sims, 515 So.2d 1 (Ala.Civ.App.1987) ], and Davis [v. Moody, 459 So.2d 914 (Ala.Civ.App.1984) ].’
“Rich v. Rich, 887 So.2d at 301 (footnote omitted).”

919 So.2d at 1182-83.

In Hodge, this court determined that the temporary custody orders at issue were “ ‘final declaration^] of who shall have custody of the children] until such time as there are future developments extrinsic to the litigation ... and a future request for relief is presented to the trial court.’ ” 919 So.2d at 1184 (quoting Trevino v. Blinn, 897 So.2d 358, 364 (Ala.Civ.App.2004) (Murdock, J., dissenting)).

Applying the law set forth in Hodge, we must conclude that the April 2007 custody order was a final, appealable custody judgment. The record on appeal indicates that the trial-court judge announced his intention to allow the parties to “try” a joint-physical-custody arrangement in March 2007 and entered an order to that effect in April 2007. The record also indicates that the April 2007 custody order was entered, not pending the litigation of the case, as it existed in March 2007, but “ ‘in anticipation of a “new case,” i.e., newly developed facts, potentially being presented to the trial court at some future date.’ ” Hodge, 919 So.2d at 1183 (quoting Rich v. Rich, 887 So.2d at 301). There is also an indication that the April 2007 custody order was a custody judgment made “ ‘in such a manner as to allow more facts to be developed — i.e., to allow a trial period [of joint physical custody] and to make it possible to base any subsequent change in custody on the history of the parties’ relationships that developed during that period.’ ” Id. (quoting Rich v. Rich, 887 So.2d at 300) (emphasis omitted). Because the April 2007 custody order was a final judgment modifying custody of the child so that the parties had joint legal and physical custody, the custody-modification standard that applied to the mother’s request for a review of the April 2007 custody order was the best-interest-of-the-child standard. See Ex parte Couch, 521 So.2d 987 (Ala.1988); Richardson v. Fotheringham, 950 So.2d 339, 342 (Ala.Civ.App.2006) (quoting Nave v. Nave, 942 So.2d 372, 376 (Ala.Civ.App.2005)) (“ ‘Because the parties had joint custody, this case is governed by Ex parte Couch, 521 So.2d 987 (Ala.1988), which held that the best-interest standard applies to the modification of an existing joint-custody arrangement.’ ”).

In her reply brief, the mother argues that the April 2007 custody order could not have been a final judgment because the April 2007 custody order contained a “date certain review of custody” on October 3, 2007. However, we note that in Rich v. Rich, supra, we held that a temporary-custody order was a final judgment despite the fact that the trial court in that case had included a date for a review hearing in the temporary-custody order. 887 So.2d at 301 n. 2 (“The fact that the trial court set in advance a subsequent hearing date to review future developments in the lives of the parties is not enough to change our view [that the judgments were temporary custody orders].”).

Accordingly, because the April 2007 custody order was a final custody judgment, and because neither the mother nor the father appealed from that judgment, we must conclude that the Act no longer applied to the custody determination that was decided after the mother’s request to review the April 2007 custody order. We note that the mother did not argue that the Act applied when she and the father discussed, before the start of the June 2009 hearing, what custody-modification standard the trial court should apply, and the mother did not argue that the trial court had violated any provision of the Act in her postjudgment motion. In fact, the parties, after noting that they had shared physical custody of the child, agreed that the trial court was required to determine the child’s custody based on the best-interest-of-the-child standard.

To the extent that the mother argues on appeal that the father failed to present evidence indicating that the child’s best interests would be served by awarding the father custody of the child, we disagree. Pursuant to Ex parte Couch, supra, the father was required to prove that a material change in circumstances had occurred since the entry of the April 2007 custody order and that the best interest of the child would be served by placing custody of the child with the father. We note that the parties agreed that a material change in circumstances had occurred since the entry of the April 2007 custody order because the child was nearing the age when he would be required to attend school, and the parties agreed that the joint-physical-custody arrangement that they had been exercising would not be in the child’s best interest once he began attending school. Both the mother and the father presented ore tenus evidence that would have supported a finding that the best interests of the child would be served by being in their sole custody. Thus, it was the duty of the trial court to weigh the evidence presented by the parties and to make a custody determination based on its view of the evidence. See Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala.1996) (noting that trial courts are in the best position to make a custody determination and that appellate courts do not sit in judgment of disputed ore tenus evidence). This court is not permitted to reweigh evidence presented ore tenus, and we must affirm a custody determination that is supported by the evidence. McCartney v. McCartney, 11 So.3d 213, 220 (Ala.Civ.App.2007). Accordingly, because the father presented evidence that would support a determination that the best interests of the child would be served by awarding the father custody of the child, we affirm the custody-modification determination in the July 2009 judgment.

Next, the mother argues that the trial court erred in applying the McLen-don standard in this case and in applying that standard only after she filed a post-judgment motion. The only authority cited by.the mother on appeal in support of her argument stands for the proposition that a custodial parent who intends to relocate with a child does not have the added burden of meeting the McLendon standard in addition to complying with the terms of the Act. See Daugherty v. Daugherty, 993 So.2d 8, 14 (Ala.Civ.App.2008). Thus, the mother indicates in her argument that the trial court erred by implicitly concluding that the mother was required to meet the McLendon standard. Nothing in the record indicates that the trial court required the mother to meet the custody-modification standard set forth in Ex parte McLendon, supra. Although the trial court stated in its amended judgment that the McLendon standard had been met, that statement indicates that the father, the party who was awarded custody, had met the custody-modification standard set forth in Ex parte McLendon. Although we have concluded that application of the McLendon standard was improper in this case, the trial court’s error in doing so was harmless. See I.M. v. J.P.F., 668 So.2d 843, 845 (Ala.Civ.App.1995) (“We note that the trial court applied the McLendon standard here rather than the 'best interest’ standard, but because the McLendon standard is more stringent, the trial court’s error in that regard is harmless.”).

Finally, the mother argues that the trial court erred by failing to comply with § 30-3-169.3(b), Ala.Code 1975, a provision of the Act, which states:

“The court making a determination [regarding whether an actual or proposed change of principal residence of a child should cause a change in custody] shall enter an order granting the objection to the change or proposed change of principal residence of a child, denying the objection to the change or proposed change of principal residence of a child, or any other appropriate relief based upon the facts of the case.”

The mother’s argument indicates that she faults the trial court for its failure to specifically grant or deny the father’s objection to the proposed change of principal residence of the child; we note that the mother has not addressed the last clause of § 30-3-169.3(b), which permits the trial court to make “any other appropriate relief based upon the facts of the case.” The mother’s argument fails on appeal for several reasons. First, the mother has not preserved this issue for review on appeal. It is well settled that an appellate court will not review an argument made for the first time on appeal. Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992) (“[An appellate court] cannot consider arguments raised for the first time on appeal; rather, our review is restricted to the evidence and arguments considered by the trial court.”). The mother did not mention the Act in her postjudgment motion, nor did she allege error related to the trial court’s failure to specifically grant or deny the father’s objection to the proposed change of principal residence of the child. Furthermore, the mother has not cited any authority to support an argument that the trial court was required to make a specific finding granting or denying the father’s objection to a proposed change of principal residence of the child in a case such as this. See Rule 28(a)(10), Ala. R.App. P.; and State Farm Mut. Auto. Ins. Co. v. Motley, 909 So.2d 806, 822 (Ala.2005) (citing Ex parte Showers, 812 So.2d 277, 281 (Ala.2001)) (“[I]t is well settled that a failure to comply with the requirements of Rule 28(a)(10) requiring citation of authority in support of the arguments presented provides [an appellate court] with a basis for disregarding those arguments.”). Finally, because we have concluded that the Act did not apply to the mother’s request for a review of the April 2007 custody order, we must also conclude that the trial court, in its June 2009 judgment, was not compelled to comply with § 30-3-169.3(b).

Based on the foregoing, we conclude that the mother has failed to demonstrate that the trial court committed reversible error. Accordingly, the judgment of the trial court is due to be affirmed. The mother’s request for an award of her attorney’s fees on appeal is denied.

AFFIRMED.

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

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

      . The record on appeal does not contain a transcript of the August 2, 2006, hearing.

      . We note that a new trial-court judge had been assigned to this case on November 13, 2008.

      . The mother had obtained a divorce from the father of the half brother on the grounds of cruelty and incompatibility. The mother admitted that there was a custody proceeding between her and the father of the half brother pending at the time of the June 2009 hearing.

      . We note that the August 2006 order appears to be a "temporary order,” as contemplated in § 30-3-169.2(b), Ala.Code 1975, which states:
      "The court may grant a temporary order permitting the change of principal residence of a child and providing for a revised schedule for temporary visitation with a child pending a final hearing if the court finds that the required notice of a proposed change of principal residence of a child as provided in this article was provided in a timely manner, contained sufficient and accurate information, and if the court finds from an examination of the evidence presented at a hearing for temporary relief that there is a likelihood that on final hearing the court will approve the change of the principal residence of the child.”

      . We acknowledge the fact that the April 2007 custody order does not specifically grant or deny the father’s objection to the mother’s request to change the principal place of residence of the child. But see § 30-3-169.3(b), Ala.Code 1975 (which permits a trial court to grant or deny a request to change the principal residence of a child or to make "any other appropriate relief based upon the facts of the case”).

      . In her brief on appeal, the mother argues, without citation to any supporting authority, that the trial court erred by awarding the father legal and physical custody of the child because the father only requested physical custody of the child. We decline to address this argument presented by the mother because she has failed to adhere to the requirements of Rule 28(a)(10), Ala. R.App. P. See also State Farm Mut. Auto. Ins. Co. v. Motley, 909 So.2d 806, 822 (Ala.2005) (citing Ex parte Showers, 812 So.2d 277, 281 (Ala.2001)) ("[I]t is well settled that a failure to comply with the requirements of Rule 28(a)(10) requiring citation of authority in support of the arguments presented provides [an appellate court] with a basis for disregarding those arguments.”).