source: Caselaw Access Project

author: WOODALL, Justice.

license: Public Domain

text:
    ATTENTA, INC. v. Lula CALHOUN.
    1100742.
    Supreme Court of Alabama.
    May 18, 2012.

      Richard E. Crum of Shealy, Crum & Pike, P.C., Dothan, for appellant.
    Joseph C. McCorquodale III of McCor-quodale & McCorquodale, Jackson; and Taylor T. Perry, Jr., of Manley, Traeger, Perry <& Stapp, Demopolis, for appellee.
   WOODALL, Justice.

This is an appeal from a judgment entered on a jury verdict for Lula Calhoun, based on her claim alleging the tort of outrage against Attenta, Inc. (“Attenta”), the third-party administrator of the workers’ compensation program for Linden Lumber Company, Inc. (“Linden”). We vacate the judgment and dismiss the case and the appeal.

I. Factual and Procedural History

This case ultimately arose out of a workplace accident in which Robert Lee Calhoun, Jr., the husband of Lula Calhoun, was fatally injured while employed by Linden. On March 14, 2003, following his death, Calhoun filed a complaint against Linden in the Marengo Circuit Court (hereinafter sometimes referred to as the “Marengo County action”), seeking worker’s compensation death benefits, pursuant to Ala.Code 1975, § 25-5-60 et seq.

On or about July 14, 2003, Calhoun amended her complaint to add as a defendant G.A. West & Company, Inc. (“West”). She amended her complaint a second time on May 14, 2004, to add as defendants Forest Products Engineering, Inc. (“Forest Products”), and various of her deceased husband’s co-employees. Her amended complaints alleged that West and Forest Products were “in charge of the work area and/or the premises” where the accident that injured Mr. Calhoun occurred. They further alleged that West and Forest Products negligently or wantonly failed to provide Mr. Calhoun a safe place to work, resulting in his wrongful death. Finally, they alleged willful misconduct on the part of the co-employees. On June 1, 2005, the Marengo Circuit Court issued “findings of fact, conclusions of law, and order” as to Calhoun’s worker’s compensation claim against Linden, awarding Calhoun future weekly death benefits for 375 weeks. The order also stated, in pertinent part:

“It is further ORDERED, ADJUDGED AND DECREED that [Linden] shall be released and forever discharged from all claims arising out of the deceased’s employment with [it] and that [Linden] is subrogated, as provided under Ala.Code § 25-5-11 (1975) as amended, to any recovery through settlement, judgment or otherwise that [Calhoun] may receive or recover from or on behalf of any third party for the injuries received by the deceased and/or [Calhoun] and made the subject of this action.”

(Emphasis added.) The court did not certify the order as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P.

In the meantime, litigation involving the other parties and claims proceeded apace. For example, on January 20, 2007, West moved for a summary judgment. Calhoun moved for a summary judgment on April 4, 2007, and Forest Products moved for a summary judgment on August 3, 2007. West’s motion was denied on May 3, 2007.

In early September 2007, a flurry of settlement negotiations occurred among counsel for (1) Calhoun, (2) Linden, (3) West, and (4) Forest Products. On September 5, 2007, Linden’s counsel sent a letter to Calhoun’s counsel; that letter stated, in pertinent part:

“This letter confirms that [Linden] has offered to release its credit and sub-rogation lien, in part, against the worker’s compensation and medical benefits paid to [Calhoun] in the above referenced action[ ], so long as [Calhoun] acknowledges and agrees to waive her right to seek and [Linden] to recover the next $75,000.00 in future death benefits allegedly due to her. In exchange for this offer by my client, [Calhoun] must release [Linden and Mr. Calhoun’s co-employees] from any and all claims for which [Calhoun has] asserted and/or could have asserted against these defendants and any other [Linden] employee.
“Per our conversation this afternoon, I understand that [Calhoun] will accept this offer. I am glad that the parties were able to come to a resolution of these matters.”

(Second emphasis added.)

The next day — September 6, 2007— West’s counsel sent Calhoun’s counsel a letter, stating, in pertinent part:

“[Y]ou just confirmed by telephone that [Calhoun has] compromised [her] claims against [West] in exchange for ... payment in the amount of [$175,-000]. A more formal release and indemnity agreement will follow. Of course, the settlement requires [Calhoun] to be responsible for — and protect [West] from — the worker’s compensation subro-gation lien.
“Please reply with the manner in which you would like the checks written along with your tax identification numbers.”

That same day, Calhoun’s counsel responded to West’s counsel, stating, in pertinent part: “This will acknowledge receipt of your letter of September 6, 2007. You should make a check in the amount of $175,000.00 ... to Lula Calhoun and her attorney.... I will have someone from my office call your secretary with our tax ID number....”

Another letter was sent that same day, September 6, 2007, to Calhoun’s counsel from counsel for Forest Products. That letter stated, in pertinent part:

“This will confirm that we have agreed to resolve and settle all claims brought in the Calhoun ... case[ ] against [Forest Products] for a payment of [$17,500] in return for a pro tanto full and final release of all claims and a pro tanto joint stipulation of dismissal with prejudice of [Forest Products].
“I will have a check in that amount made payable to [Calhoun’s counsel] and deliver it to you upon receipt of the executed Release and filed Joint Stipulation.
“Thank you for your professionalism in handling this case with me, and good luck in your claims against [West].”

(Emphasis in original.)

Correspondence beginning on September 11, 2007, however, reveals that elements of uncertainty remained as to the terms of the proposed settlements. On that day, Linden’s counsel wrote Calhoun’s counsel, stating, in pertinent part:

“My letter of September 5, 2007, accurately states our agreement. Your letter which followed the next day does not dispute it. It was not until you called me yesterday that you attempted to change or otherwise alter our agreement.
‘Tour attempt to re-characterize the settlement as ‘off the back-end of future death benefits’ makes no sense. Generally, the purpose of Alabama’s Worker’s Compensation Act is to prevent the double recovery of benefits.... Your new assertion would have the effect of doing just that — providing Lula Calhoun with double benefits. That was not part of our agreement. The story that you are now advancing ... never occurred. ■
“As you know, my client, [Linden], needs immediate relief from its obligation to continue paying Lula Calhoun death benefits. It is the only reason that we agreed to negotiate with [her] in the first place.
“I have notified [West’s] counsel, by copy of this letter, that [Linden] continues to assert its full credit and subrogation interests in this case and any payment of settlement proceeds by them would be at its peril.”

(Emphasis added.)

On September 27, 2007, West’s counsel wrote Calhoun’s counsel, stating, in pertinent part:

“I have received settlement checks. We are ready, willing and able to pay ... $175,000.00 to Lula Calhoun.... As you know, however, we have some concern about [Linden’s counsel’s] September 11, 2007, letter articulating some kind of dispute between [Calhoun] and [Linden ], and notifying us that [Linden] ‘continues to assert its full credit and subrogation interests in this case and any payment of settlement proceeds by [West] would be at its peril.’
“[West’s] settlement was with [Calhoun], not with [Linden]. [Calhoun is] responsible to satisfy [Linden’s] workers’ compensation liens.
“... [Y]ou asked that I hold on to these checks for the time being. I understand that you ... are working to resolve the present dispute with [Linden]. I look forward to hearing from you next week regarding the matter.”

(Emphasis added.)

On September 21, 2007 — on the theory that settlements had been reached extinguishing Linden’s liability to Calhoun for further worker’s compensation death benefits — Attenta discontinued the monthly payments to Calhoun. Nevertheless, the litigation continued. On October 25, 2007, West, in a “second amended answer to plaintiffs second amended complaint,” filed a counterclaim against Calhoun and a cross-claim against Linden for “interpleader.” On November 8, 2007, Linden filed an answer to the cross-claim and an “answer of counterclaim.”

On November 12, 2007, Calhoun commenced this action by filing a three-count complaint in the Wilcox Circuit Court against Linden and Attenta (hereinafter sometimes referred to as “the Wilcox County action”), alleging (1) the tort of outrage, (2) fraud, and (3) conspiracy. The complaint alleged, in pertinent part:

“8. On or about September 5, 2007, Lula Calhoun was negotiating settlement of a lawsuit against [West] resulting from the death of Robert Lee Calhoun, Jr. The parties were attempting to work out a settlement contingent on the waiver of all right of credit/subrogation to all medical benefits and workers’ compensation death benefits previously paid by [Linden].
“9. A dispute arose over the terms of the waiver by [Linden], [Linden] contends no agreement was reached over the terms of the waiver.
“10. [Linden] notified [West] that defendant, [Linden], continues to assert its full credit and subrogation interest in plaintiff, Lula Calhoun’s case and [that] any payment of settlement benefits by [West] would be at its peril.
“11. [Linden and] Attenta then stopped payment on all workers’ compensation death benefit payments to [Calhoun].
“13. Defendants have committed the tort of outrage by engaging in an unlawful mental and financial assault on [Calhoun] with the intent to cause [her] . severe emotional distress and financial extortion in order to force a settlement of [Calhoun’s] third party action against [West] that would be advantageous to [Linden], Defendants’ actions are in direct violation of the June 1, 2005, Order of the Circuit Court of Marengo County, Alabama, filed herewith as Exhibit 1. Defendants’ conduct is so outrageous in character and so extreme in degree so as to be regarded as atrocious and utterly intolerable in a civilized society.
“14. As a proximate consequence of defendants’ outrageous conduct, plaintiff has been caused to suffer severe emotional stress and physical suffering and financial loss.
“16. Pursuant to an Order entered by the Court in the case styled, Lula Calhoun, et al. vs. Linden Lumber Company, Inc., and bearing Civil action No. CV-03-50 in the Circuit Court of Marengo County, Alabama, defendant, [Linden] was ordered to pay to plaintiff as follows:
“ ‘The Plaintiff Lula Calhoun shall receive gross workers’ compensation benefits of $379,33 for the next 66 weeks, said amount representing 2/3 of the workers’ compensation benefits payable during said period. Thereafter, the Plaintiff Lula Calhoun shall receive gross workers’ compensation benefits of $437.50 for the next 309 weeks thereafter, said amount representing the full workers’ compensation death benefit of 50% of the average weekly wage of the deceased worker with one dependent. Said gross benefits awarded are subject to an attorney’s fee as set forth later in this order.’
“See Second Addendum to Findings of Fact, Conclusions of Law, and Order, signed by Hon. Eddie Hardaway, Jr., dated June 1, 2005 and attached hereto as Exhibit 1.
“17. [Linden and Attenta] represented to the Court and to [Calhoun ] that workers’ compensation death benefit payments would be made pursuant to this Order, and [Linden and Attenta] did in fact begin making payments pursuant to the Order.
“18. [Calhoun] relied upon [Linden and Attenta’s] representation that said payments would be made.
“19. Said representations were false and [Linden and Attenta] made them willfully to induce [Calhoun] to act, or were fraudulently or recklessly represented as true and intended to deceive [Calhoun].
“20. [Calhoun] believed said representations and relied upon them and acted upon them to her detriment.
“21. As a proximate result of said fraud and deceit, [Calhoun] was caused to suffer damages.”

(Emphasis added.)

In the Marengo County action, meanwhile, the court continued to entertain motions filed by various parties. On November 13, 2007, for example, the insurer for Forest Products filed a “motion to enforce settlement agreement,” contending (1) that it had successfully negotiated a settlement with Calhoun, (2) that it had mailed a check and an agreement/release to Calhoun’s counsel, but (3) that the agreement/release had not been executed, despite the passage of more than a month.

In Wilcox County, both Linden and At-tenta unsuccessfully moved to dismiss the Wilcox County action, contending, among other things, that the Wilcox Circuit Court lacked subject-matter jurisdiction over the dispute, because, they argued, its resolution turned on the construction and effect of the order issued by the Marengo Circuit Court in the Marengo County action on Calhoun’s worker’s compensation claim against Linden. Linden was eventually released from the Wilcox County action after settling with Calhoun. The case was tried to a jury solely on the tort-of-outrage claim against Attenta. The jury awarded Calhoun $3,695,298.19 ($1,695,298.19 in compensatory damages and $2,000,000 in punitive damages), and the trial court entered a judgment on that verdict. Attenta appealed.

II. Discussion

On appeal, Attenta renews its argument that the Wilcox Circuit Court lacked subject-matter jurisdiction over this action, because, it contends, the controlling issue in the Wilcox County action is at the center of the dispute in the Marengo County action. Therefore, says Attenta, jurisdiction over the dispute lay exclusively in the Marengo Circuit Court. We agree.

At the outset, we note that the Marengo County action was still pending when the Wilcox County action was commenced. This was so, because the action in Marengo County involved multiple claims against multiple defendants, and the order disposing of the worker’s compensation claim against Linden was not certified as a final judgment. The absence of a Rule 54(b) certification in such a ease renders the order on the worker’s compensation claim interlocutory and subject to modification at any time before the entry of a final judgment. ArvinMeritor, Inc. v. Handley, 12 So.3d 669, 676 (Ala.Civ.App.2007).

It is well settled that if the trial court lacks subject-matter jurisdiction over an action, then all orders and judgments in that action — except an order dismissing the case — are void ab initio. City of Huntsville v. COLSA Corp., 71 So.3d 637, 642 (Ala.2011); Bernals, Inc. v. Kessler-Greystone, LLC, 70 So.3d 315, 319 (Ala.2011). It is equally well settled that “ ‘where two or more courts have concurrent jurisdiction, the one which first takes cognizance of a cause has the exclusive right to entertain and exercise such jurisdiction, to the final determination of the action and the enforcement of its judgments or decrees.’ ” Grimes v. Liberty Nat’l Life Ins. Co., 726 So.2d 615, 617 (Ala.1998) (quoting Ex parte Burch, 236 Ala. 662, 665,184 So. 694, 697 (1938)). See also Ex parte Moore, 382 So.2d 548, 550 (Ala.1980) (the Jefferson Circuit Court could not exercise jurisdiction over an action to declare the validity of mechanic’s liens where there was already pending in the Shelby Circuit Court an action to enforce the liens; the issue raised in the Jefferson County action could be litigated in the Shelby County action); Orton v. Cheatham, 293 Ala. 639, 643, 309 So.2d 94, 96 (1975) (“[T]he court first assuming jurisdiction of a cause ... must be allowed to pursue and exercise its jurisdiction to the exclusion of all coordinate tribunals.”).

According to Calhoun, her claims in the Wilcox County action “simply are not based upon [Attenta’s] failure to comply with [the Marengo Circuit Court’s] June 1, 2005, order directing that [Linden] and Attenta pay worker’s compensation benefits.” Calhoun’s brief, at 16. She says that the Marengo Circuit Court did not have exclusive jurisdiction of this dispute, because, she asserts, the resolution of her tort-of-outrage claim did not require the Wilcox County jury to determine whether she was entitled to benefits after September 21, 2007, the date on which Attenta discontinued the monthly death-benefit payments. However, Calhoun’s assertions are belied by her pleadings in the Wilcox County action.

As the basis of her tort-of-outrage claim, Calhoun’s complaint alleged expressly that Attenta “unlawfully],” and “in direct violation of the June 1, 2005 order of the Circuit Court of Marengo County,” discontinued worker’s compensation death-benefit payments “with the intent to cause [her] severe emotional distress and financial extortion.” As the basis for her fraud claim, Calhoun quoted from the Marengo Circuit Court’s order on the worker’s compensation claim and alleged that Attenta fraudulently “represented to the court and to [her] that worker’s compensation death benefit payments would be made pursuant to this order.” (Emphasis added.)

The strategy Calhoun employed during the trial in the Wilcox County action reinforced her reliance in her complaint on the order on her worker’s compensation claim in the Marengo County action. For example, during her case-in-chief, Calhoun called to the witness stand Tiffany Cahill, a claims adjuster for Attenta. During Ca-hill’s testimony, the following colloquy occurred:

“Q. [By Calhoun’s counsel:] ... After the Circuit Court of Marengo County entered an order that death benefits had to be paid, was that order provided to you?
“A. [By Cahill:] Yes, sir.
“Q. And did you then start sending out checks pursuant to that order?
“A. Yes, sir.
“Q. So, there’s no question, you received the June 1, 2005, order?
“A. Yes, sir.
“Q. And you started sending out checks pursuant to that order?
“A. Yes, sir.
“Q. And at some point, you stopped paying the checks, right?
“A. Yes, sir.
“Q. And prior to the stop payment on these dependent checks, the payments that you had made to [Calhoun] had been made pursuant to a court order issued by the Circuit Court of Maren-go County, correct?
“A. Yes, sir.
“Q. And you never received an order from the Circuit Court of Marengo County telling you to stop the dependent payments, did you?
“A. No, sir.
“Q. Did [Linden’s counsel] ever tell you that they had an order from the Marengo County Circuit Court to stop payments on those checks?
“A. No, sir.
“Q. The payments were stopped without an order from the Court of Mar-engo County, correct?
“A. Yes, sir.”

(Emphasis added.)

Attenta’s response in its motion for a judgment as a matter of law was that “[t]he cessation of ... payments was lawful under the [order], which provided for [Linden’s] statutory right to credit against its death benefit liability in the event of a third-party settlement. Because the third-party settlement amount was greater than [Linden’s] remaining liability, [Linden] and Attenta had no further liability for ... benefits.” (Emphasis added.) In support of that argument, Attenta cited the principle adopted in this state that an “ ‘actor is never liable ... where he has done no more than to insist upon his legal rights in a permissible way.’ ” American Road Serv. Co. v. Inmon, 394 So.2d 361, 368 (Ala.1980) (quoting Restatement (Second) of Torts § 46 comment (g) (1948)). See also BellSouth Mobility, Inc. v. Cellulink, Inc., 814 So.2d 203, 215 (Ala.2001) (“ ‘Whatever a man has a legal right to do, he may do with impunity, regardless of motive, and if in exercising his legal right in a legal way damage results to another, no cause of action arises against him because of a bad motive in exercising the right.’ ” (quoting Texas Beef Cattle Co. v. Green, 921 S.W.2d 203, 211 (Tex.1996))).

It is abundantly clear, therefore, that Calhoun’s alleged right to death-benefit payments after September 2007 was the threshold issue in the Wilcox County action and was inextricably intertwined with the subrogation aspect of the June 1, 2005, order in the first-filed Marengo County action. In other words, the Marengo Circuit Court, having first taken cognizance of the cause, had “the exclusive right to entertain and exercise such jurisdiction, to the final determination of the action and the enforcement of its judgments and decrees,” Grimes, 726 So.2d at 617, including any dispute regarding the existence and legal effect of any settlement with third parties, such as West and Forest Products. Consequently, the Wilcox Circuit Court exceeded its authority in asserting jurisdiction over this action.

III. Conclusion

The complaint filed in the Wilcox County action failed to invoke the subject-matter jurisdiction of the Wilcox Circuit Court; therefore, the judgment entered in the Wilcox County action against Attenta is void. “ ‘A judgment entered by a court lacking subject-matter jurisdiction is absolutely void and will not support an appeal; an appellate court must dismiss an attempted appeal from such a void judgment.’ Vann v. Cook, 989 So.2d 556, 559 (Ala.Civ.App.2008).” MPQ, Inc. v. Birmingham Realty Co., 78 So.3d 391, 394 (Ala.2011). Accordingly, we vacate the judgment and dismiss the case and the appeal.

JUDGMENT VACATED; CASE DISMISSED; AND APPEAL DISMISSED.

MALONE, C.J., and BOLIN, MURDOCK, and MAIN, JJ., concur.

      . The ultimate disposition of the Marengo County action and the timing of that disposition are not entirely clear from the record, although it is clear that the Marengo County action was pending when the complaint on the Wilcox County action was filed.


author: BRYAN, Judge.

text:
    Ex parte Clark Daniel MONTGOMERY. (In re Cynthia C. Montgomery v. Clark Daniel Montgomery).
    2110322.
    Court of Civil Appeals of Alabama.
    May 18, 2012.

      Eric B. Funderburk of Law Offices of Funderburk & Lane, Phenix City, for petitioner.
    Melissa B. Thomas, Phenix City, for respondent.
   BRYAN, Judge.

This is the third time that Clark Daniel Montgomery (“the husband”) and Cynthia C. Montgomery (“the wife”) have appeared before this court. See Montgomery v. Montgomery, 37 So.3d 168 (Ala.Civ.App.2009) (“Montgomery I”), and Ex parte Montgomery, 79 So.3d 660 (Ala.Civ.App.2011) (“Montgomery II”). The husband filed this petition for a writ of mandamus seeking various forms of relief from an order entered by the Russell Circuit Court (“the trial court”) on December 2, 2011. We deny the petition.

Procedural History

The husband and the wife were divorced on May 11,1999, by a judgment of the trial court that incorporated an agreement of the parties in case no. DR-99-138. Montgomery I, 37 So.3d at 169. Paragraph nine of the parties’ divorce judgment, which has been the focus of each case before this court, states: “The Wife is hereby awarded 35% of the Husband’s retirement excluding his Social Security. Said award shall include any increases that the husband may get prior to and following the time he begins to draw his retirement benefits.”

In Montgomery I, the husband appealed from a judgment entered in case no. DR-99-138 that issued a Qualified Domestic Relations Order (“QDRO”) at the request of the wife, who was seeking to implement paragraph nine of the agreement incorporated into the parties’ divorce judgment. We determined that the trial court did not have subject-matter jurisdiction to enter a QDRO in case no. DR-99-138 “because the filing of a QDRO, under the circumstances presented, required that the wife file a separate action, pay an appropriate filing fee, and give proper notice of her requests for a QDRO to the husband because she was seeking to implement or enforce the divorce judgment through a QDRO.” Montgomery II, 79 So.3d at 663; see also Montgomery I, 37 So.3d at 172. Therefore, we dismissed the husband’s appeal with instructions to the trial court to vacate the QDROs entered in case no. DR-99-138. Id. at 173.

Also in Montgomery I, the wife filed a cross-appeal regarding the issues presented in case no. DR-99-138.01, which was initiated by the wife’s filing of a petition for a rule nisi alleging that the husband was in contempt for failing to pay her a portion of his retirement benefits as provided for in the divorce judgment. Id. at 171. We reversed the trial court’s judgment finding that the husband was not in contempt “[bjecause the trial court heard no evidence regarding the allegations set forth in the wife’s petition for a rule nisi and because there [wa]s no evidence in the record to support the trial court’s finding that the husband was not in contempt.” Id. at 174. Therefore, we “remanded the cause with instructions to the trial court to conduct an evidentiary hearing on the wife’s petition for a rule nisi.” Montgomery II, 79 So.3d at 664 (citing Montgomery I, 37 So.3d at 174).

On October 11, 2010, after this court issued a certificate of judgment in Montgomery I, the wife, in case no. DR-99-138.01 — i.e., the contempt action — filed a motion to implement a QDRO. In her motion,

“[t]he wife alleged that the husband was retired and drawing benefits but that she had not been receiving the portion of the husband’s retirement benefits that she had been awarded pursuant to paragraph nine of the agreement incorporated into the parties’ divorce judgment (hereinafter referred to as ‘paragraph nine of the divorce judgment’).... The wife requested that the trial court enter a QDRO so that her portion of the husband’s retirement benefits would be paid directly to her. The wife attached a proposed QDRO as an exhibit to her motion.
“On October 14, 2010, the husband filed a motion to dismiss the wife’s motion for implementation of a QDRO. The husband alleged that the trial court did not have jurisdiction to alter or amend the QDRO that was previously entered ... because this court had concluded[, in Montgomery I,] that that QDRO was void; that the wife’s motion for implementation of a QDRO was an attempt to amend a prior QDRO; and that the wife must file a petition to modify the parties’ divorce judgment, pay the appropriate filing fees, and serve the husband with the petition.”

Montgomery II, 79 So.3d at 664.

On March 16, 2011, the trial court entered a QDRO “that addressed the wife’s receipt of a portion of the husband’s retirement benefits.” Id. at 665.

“On March 17, 2011, the husband filed a motion to vacate the March 16, 2011,
' order and a motion for a hearing on the trial court’s jurisdiction to enter a QDRO. The husband alleged that ... the wife’s request for a QDRO through her petition for a rule nisi did not properly invoke the jurisdiction of the trial court and did not properly put the husband on notice of a proposed ‘modification.’ The husband further alleged that he had been denied due process of law by the trial court’s failure to conduct a hearing on his motion to dismiss.”

Id.

The trial court denied all the husband’s pending requests for relief, and the husband filed a petition for a writ of mandamus. In his petition, the husband argued, among other things not pertinent to the issues presented in this case, “that the QDRO entered on March 16, 2011, [was] due to be vacated because (1) the wife’s motion to implement a QDRO did not properly invoke. the subject-matter jurisdiction of the trial court, [and] (2) because his due-process rights were violated.... ” Id. at 668. We addressed the husband’s arguments as follows:

“[T]he husband contends that the wife, by merely filing a motion to implement a QDRO in her contempt action, failed to invoke the subject-matter jurisdiction of the trial court to enter a QDRO. According to the husband, the wife was required to file a separate modification action, or an amendment to her rule nisi petition, in order to obtain a QDRO that modified paragraph nine of the parties’ divorce judgment. The husband’s argument is based on the premise that the entry of a QDRO would necessarily result in a modification of the divorce judgment. However, as we stated in Montgomery [I ], ... ‘the entry of a QDRO, in and of itself, is not a modification of a property division.’ 37 So.3d at 173 n. 7. So long as the trial court does nothing more than ‘implement the division of property as stated in the parties’ divorce judgment,’ id., then the entry of a QDRO will not be considered a modification of the property-division provisions in the parties’ divorce judgment.
“Accordingly, we conclude that the wife’s request for the entry of a QDRO was not, in and of itself, a request to modify the divorce judgment. See Montgomery [I ] .... We further conclude that the wife’s motion for implementation of a QDRO was cognizable as a request for relief in a pending contempt action. In Montgomery [/], we held that the wife was required to file a separate action to obtain a QDRO because she was seeking a method of enforcing or implementing paragraph nine of the divorce judgment. A petition for a rule nisi seeking to hold a party in contempt for failure to abide by the provisions of an existing divorce judgment is a method of enforcing compliance with the existing divorce judgment. See generally Decker v. Decker, 984 So.2d 1216 (Ala.Civ.App.2007); and Committee Comments to Rule 70A, Ala. R. Civ. P. (noting that petitions for contempt are routinely used in domestic-relations actions to enforce compliance with an existing judgment). Similarly, the entry of a QDRO is a method of enforcing or implementing the terms of an existing divorce judgment. See Montgomery [/], 37 So.3d at 172 (“We conclude that a trial court has the inherent power to issue a QDRO subsequent to the entry of a divorce judgment in an effort to implement or enforce the judgment or to render the divorce judgment effective.’). Thus, we cannot conclude that the trial court did not have subject-matter jurisdiction to rule on a motion requesting the entry of a QDRO to implement a provision of the divorce judgment as part of an existing contempt action.
“The husband next argues that the March 2011 QDRO is void because he was denied due process of law because the trial court denied his motion to dismiss without conducting a hearing on his motion.... [However], because the husband did not request an oral hearing on his motion to dismiss the wife’s motion for implementation of a QDRO, we cannot conclude that the husband’s due-process rights were violated when the trial court denied his motion to dismiss without first conducting a hearing. See Blanton v. Blanton, 463 So.2d 158, 161 (Ala.Civ.App.1984) (concluding that the husband was not denied due process when the trial court denied his motion to dismiss without a hearing because the husband did not request an oral hearing).
“However, the husband further argues that because he entered only a limited appearance to challenge the trial court’s jurisdiction to consider the wife’s motion for implementation of a QDRO, and because the trial court denied his motion to dismiss the wife’s motion for implementation of a QDRO at the same time that it granted the wife’s motion for implementation of a QDRO, his procedural due-process rights were violated because he was not afforded an opportunity to respond to the wife’s motion for implementation of a QDRO or to be heard on a challenge to the wife’s proposed QDRO before it was entered. The husband contends that the QDRO entered on March 16, 2011, impermissi-bly modified the parties’ divorce judgment and deprived him of his property without due process of law. See generally United States Constitution, Amend. XIV, § 1 (‘No state shall ... deprive any person of life, liberty, or property, without due process of law.’); and Neal v. Neal, 856 So.2d 766, 782 (Ala.2002) (quoting Frahn v. Greyling Realization Corp., 239 Ala. 580, 583, 195 So. 758, 761 (1940)) (‘ “[D]ue process of law means notice, a hearing according to that notice, and a judgment entered in accordance with such notice and hearing.’” (emphasis omitted)).
“According to the materials provided to this court, after the trial court entered the QDRO on March 16, 2011, the husband filed several motions, with supporting briefs, requesting a hearing and challenging the substance of the QDRO entered, alleging that it had modified paragraph nine of the divorce judgment by expanding the wife’s award of his retirement benefits. There is no indication that the trial court conducted a hearing on any of the husband’s substantive challenges to the QDRO.
“Accordingly, we agree that the husband’s due-process rights were violated because he was not afforded the opportunity to answer and be heard on the wife’s request for implementation of a QDRO. A judgment or order that is entered in violation of principles of procedural due process is void. See Ex parte Third Generation, Inc., 855 So.2d 489, 492 (Ala.2003) (discussing Neal, supra, and concluding that a judgment is void if it violates principles of procedural due process). We therefore grant the husband’s petition in part, issue the writ, and order the Russell Circuit Court to vacate the QDRO entered on March 16, 2011.”

Id. at 668-70 (emphasis added; footnotes omitted).

After our certifícate of judgment issued in Montgomery II, the wife filed a renewed motion for implementation of a QDRO and a request for an order setting a final hearing on her petition for a rule nisi. The wife sought a hearing on her motion for implementation of a QDRO that she had filed on October 11, 2010 (which led to the husband’s petition for writ of mandamus in Montgomery II). The wife incorporated her October 11, 2010, motion for implementation into her renewed motion for implementation, and she requested a hearing on her petition for a rule nisi as this court had instructed in Montgomery I. See Montgomery I, 87 So.3d at 174.

In response to the wife’s motion, the husband filed an objection to the wife’s motion to implement a QDRO and a motion to dismiss. The husband argued that the wife’s motion to implement a QDRO did not invoke the trial court’s jurisdiction to enter a QDRO that modifies the divorce judgment. The husband requested a hearing on his objection and motion to dismiss. On October 25, 2011, the trial court entered an order vacating the March 2011 QDRO, as well as QDROs entered in May 2005 and February 2008 (which were part of the proceedings in Montgomery I, supra ), and the trial court scheduled a hearing on the wife’s petition for a rule nisi.

The trial court conducted an ore tenus hearing on November 80, 2011. During that hearing, the wife and the husband testified regarding the issue of contempt and they testified regarding their understanding of what paragraph nine of the divorce judgment awarded the wife. The wife maintained that paragraph nine awarded her 35% of the husband’s retirement benefits — including his Army/Air Force Exchange Service (“AAFES”) benefits and his Executive Management Program (“EMP”) benefits — as determined by considering the total amount of benefits he was eligible for as of the date the husband retired, which was in December 2007. However, the husband maintained that the wife was entitled to 35% of his AAFES benefits that were acquired during the parties’ marriage and that the reference in the second sentence of paragraph nine that allowed the wife any increases that the husband may get referred to any applicable cost-of-living increases that the husband might get after he retired. The husband further testified that he had elected a spousal annuity on behalf of his current wife, which reduced the amount of the retirement benefits he received. At the conclusion of the hearing, the trial court stated on the record that the wife’s percentage award of the husband’s AAFES retirement benefits should be calculated using the husband’s retirement date, not the date the parties filed for a divorce.

On December 2, 2011, the trial court entered an order finding the husband in contempt for failure to pay the wife 35% of the husband’s AAFES retirement benefits from January 2008 through December 2011. The trial court further held that the retirement benefits should be “figured at 35% of the total AAFES retirement benefits without deduction for spousal support.” The trial court held that the husband could purge himself of contempt by “see[ing] that a [QDRO] is implemented to pay [the wife] 35% of his AAFES [retirement, and an additional arrearage for reduced payments due to voluntary spousal deduction entered into by the [husband],” by January 10, 2012. The trial court reserved ruling on other matters, such as whether the husband’s EMP benefits were included in the wife’s award of 35% of the husband’s retirement benefits. On December 30, 2011, the husband filed a timely petition for a writ of mandamus. On January 3, 2012, this court granted the husband’s request for a stay of enforcement of the trial court’s December 2, 2011, order.

Relief Requested

The husband asks this court to grant his petition for a writ of mandamus and to order the trial court: (1) to vacate the December 2, 2011, order insofar as it found him in contempt; (2) to vacate the December 2, 2011, order, insofar as it required him to implement a QDRO based on the date of his retirement, rather than the date that the parties filed for a divorce, because the trial court did not have subject-matter jurisdiction to consider the wife’s motion to implement a QDRO; and (3) to conduct a hearing on his objection and motion to dismiss before another order concerning a QDRO is entered.

Standard of Review

“ ‘ “Mandamus is an extraordinary remedy and will be granted only where there is ‘(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’ ” ’
“Ex parte Ocwen Federal Bank, FSB, 872 So.2d 810, 813 (Ala.2003) (quoting Ex parte Alfab, Inc., 586 So.2d 889, 891 (Ala.1991)). Mandamus will lie to direct a trial court to vacate a void judgment or order. Ex parte Chamblee, 899 So.2d 244, 249 (Ala.2004).”

Montgomery II, 79 So.3d at 667 (quoting Ex parte Sealy, L.L.C., 904 So.2d 1230, 1232 (Ala.2004)).

Discussion

First, we will consider whether any part of the trial court’s December 2, 2011, order is void. See Insurance Mgmt. & Admin., Inc. v. Palomar Ins. Corp., 590 So.2d 209, 212 (Ala.1991) (citing Satterfield v. Winston Indus., Inc., 553 So.2d 61 (Ala.1989)) (“A judgment is void only if the court rendering it lacked jurisdiction of the subject matter or of the parties, or if it acted in a manner inconsistent with due process.”). In that regard, the husband argues that the wife’s renewed motion to implement a QDRO failed to invoke the subject-matter jurisdiction of the trial court because the proposed QDRO attached to the wife’s motion would have resulted in a modification of the property-division terms of the parties’ divorce judgment, specifically, paragraph nine of the divorce judgment. Thus, the husband argues, as he did in Montgomery II, that the wife was required to either file a modification petition with new filing fees or to formally amend her petition for a rule nisi. Because the wife did not do either of those things, the husband contends, the trial court was without subject-matter jurisdiction to rule on the wife’s renewed motion to implement a QDRO.

In response, the wife argues that this court has already decided this question in Montgomery II. We agree. In Montgomery II, as set forth above, we held that a motion to implement a QDRO was a cognizable request for relief in a pending contempt action and that the trial court had “subject-matter jurisdiction to rule on a motion requesting the entry of a QDRO to implement a provision of the divorce judgment as part of an existing contempt action.” 79 So.3d at 669. Thus, because we held that the trial court had jurisdiction to rule on the wife’s motion to implement a QDRO and because the wife only renewed that motion after we issued a certificate of judgment in Montgomery II, the law-of-the-case doctrine applies, and we conclude that the trial court still had jurisdiction to consider the wife’s motion to implement a QDRO. See Ex parte S.T.S., 806 So.2d 336, 341 (Ala.2001) (quoting Blumberg v. Touche Ross & Co., 514 So.2d 922, 924 (Ala.1987)) (“According to 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 case, 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.’ ”).

The husband also argues, as he did in Montgomery II, that what the wife is really asking for is a modification of the divorce judgment. But, as we stated already, “the wife’s request for the entry of a QDRO [i]s not, in and of itself, a request to modify the divorce judgment.” Montgomery II, 79 So.3d at 669. “[T]he entry of a QDRO is a method of enforcing or implementing the terms of an existing divorce judgment.” Id. We disagree with any contention made by the husband that, because the wife’s proposed QDRO did not use the terms used in the divorce judgment verbatim, it follows that the wife was essentially seeking a “modification” of the divorce judgment. In order for a QDRO to be valid, it must clearly specify certain facts as set forth in 26 U.S.C. § 414(p)(2). Paragraph nine of the divorce judgment does not include all the specific facts necessary to meet the requirements of 26 U.S.C. § 414(p)(2). Thus, it follows that a QDRO implemented by the trial court will have more detail than paragraph nine of the divorce judgment.

The husband also argues that he was denied procedural due process because the trial court failed to conduct a hearing on his objection and motion to dismiss for lack of subject-matter jurisdiction. See Neal v. Neal, 856 So.2d 766, 782 (Ala.2002) (quoting Frahn v. Greyling Realization Corp., 239 Ala. 580, 583, 195 So. 758, 761 (1940)) (“ ‘[D]ue process of law means notice, a hearing according to that notice, and a judgment entered in accordance with such notice and hearing.’ ” (emphasis omitted)). We cannot conclude that the trial court erred by failing to conduct a formal hearing on the husband’s objection and motion to dismiss for lack of subject-matter jurisdiction before it ordered the husband to initiate the implementation of a QDRO. As grounds for his objection and motion to dismiss for lack of subject-matter jurisdiction, the husband raised the same arguments that this court rejected in Montgomery II. Because this court had determined that the trial court had subject-matter jurisdiction to consider the wife’s motion for implementation of a QDRO, the trial court could not have determined otherwise after being presented the same arguments by the husband. See Ex parte S.T.S., 806 So.2d at 341 (citing Murphree v. Mmphree, 600 So.2d 301, 302 (Ala.Civ.App.1992)) (“The issues decided by an appellate court become the law of the case on remand to the trial court, and the trial court is not free to reconsider those issues.”).

Furthermore, we do not agree with the husband’s argument insofar as it can be interpreted as asserting that he was denied procedural due process because the trial court did not conduct a hearing on his substantive challenges to the wife’s motion to implement a QDRO before he was ordered to initiate the implementation of a QDRO in the December 2011 order. In his objection and motion to dismiss, the husband essentially argued that the wife’s proposed QDRO contained language that modified, rather than enforced, the divorce judgment. At the November 2011 ore ten-us hearing, the wife and the husband testified regarding their interpretation of what benefits the wife was entitled to based on the language of the divorce judgment. The trial court ultimately agreed with the wife and concluded that paragraph nine of the divorce judgment awarded the wife 35% of the husband’s retirement benefits as determined on the date of his retirement. A review of the transcript of the ore tenus proceeding, which the wife attached to her response to the husband’s petition for a writ of mandamus, clearly indicates that the husband was able to make substantive challenges to the wife’s proposed QDRO and that he was able to present evidence to support his argument that the wife’s interpretation of paragraph nine of the divorce judgment was not in accordance with the terms of the divorce judgment. Therefore, we cannot agree that the husband’s procedural-due-process rights were violated, as they were in Montgomery II when the trial court did not afford the husband the “opportunity to answer and be heard on the wife’s request for implementation of a QDRO.” 79 So.3d at 670. See Neal v. Neal, supra. Accordingly, based on the arguments presented by the husband, we cannot conclude that any part of the trial court’s December 2, 2011, order was void.

The husband also argues that the trial court exceeded its discretion by finding him in contempt. However, the husband has cited no authority that would support a conclusion that a petition for a writ of mandamus is the appropriate method of reviewing that determination. We understand that the husband does not agree with the terms of the QDRO that the trial court ordered him to implement in order to purge himself of contempt. However, “ ‘[i]t is well established in Alabama that a writ of mandamus, which is a drastic and extraordinary remedy, will not issue when there is an adequate remedy by appeal, and that the writ cannot be used as a substitute for appellate review.’ ” Ex parte Weaver, 781 So.2d 944, 949 (Ala. 2000) (quoting Ex parte Fowler, 574 So.2d 745, 747 (Ala.1990)). Accordingly, we will not consider, at this time, whether the trial court exceeded its discretion by finding the husband in contempt.

We note that our conclusions today— that the trial court has subject-matter jurisdiction to consider the wife’s motion to implement a QDRO and that the trial court did not violate the husband’s procedural-due-process rights — are not equivalent to a holding that the terms of the QDRO that the trial court ordered the husband to implement were proper. The question whether the trial court improperly ordered the husband to initiate the implementation of a QDRO that substantively modified the property-division terms of the parties’ divorce judgment has not yet been addressed by this court, and we will not consider that question at this time because such a question is reviewable by appeal. See, e.g., Romer v. Romer, 44 So.3d 514, 518-19 (Ala.Civ.App.2009) (reviewing an appeal taken from the entry of a QDRO). See also Ex parte Weaver, supra.

Conclusion

Because the husband has not shown a clear legal right to the relief he seeks in his petition for a writ of mandamus and because the husband has not demonstrated that he lacks an adequate remedy other than the issuance of a writ of mandamus, we deny the husband’s petition. The stay of the trial court proceedings issued by this court on January 3, 2012, is lifted.

PETITION DENIED; STAY LIFTED.

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

      . It was undisputed that the husband’s EMP benefits could not be disbursed through a QDRO.

      . However, as we have warned in Montgomery II, the trial court is not permitted to modify the property-division provisions of a divorce judgment more than 30 days after the entry of the final judgment except to correct clerical errors. 79 So.3d at 669 n. 5 (quoting Jardine v. Jardine, 918 So.2d 127, 130-31 (Ala.Civ.App.2005), quoting in turn Ex parte Littlepage, 796 So.2d 298, 301 (Ala.2001), quoting in turn Hamilton v. Hamilton, 647 So.2d 756, 759 (Ala.Civ.App.1994)). Thus, any QDRO that the trial court enters may do "nothing more than 'implement the division of property as stated in the parties’ divorce judgment.’ ” Montgomery II, 79 So.3d at 668-69 (quoting Montgomery I, 37 So.3d at 173 n. 7).

      . Any further substantive challenges to the terms of the QDRO the husband was ordered to implement may be raised in a timely post-judgment motion once the trial court enters a final judgment that addresses each issue pending before it.


author: THOMPSON, Presiding Judge.

text:
    T.E.W., Jr. v. T.S.
    2110104.
    Court of Civil Appeals of Alabama.
    May 18, 2012.
    Ronald S. Held of Sides, Oglesby, Held, Dick & Burgess, LLC, Anniston, for appellant.
    Gerald O. Sills of Stubbs, Sills & Frye, P.C., Anniston, for appellee.
   THOMPSON, Presiding Judge.

T.E.W., Jr. (“the father”), appeals a judgment of the Calhoun Juvenile Court finding his minor child dependent and awarding custody of her to T.S. (“the aunt”), the child’s maternal aunt.

■ The record indicates that the child was born to D.S. (“the mother”) and the father in 2005; the mother and the father never married. In January 2007, - the juvenile court entered a judgment adjudicating the father’s paternity and incorporating an agreement reached by the mother and the father pertaining to custody and child support. Pursuant to that judgment, the father was awarded visitation at the mother’s discretion and was ordered to pay child support.

On December 2, 2010, the aunt filed an action in the juvenile court seeking to have the child declared dependent and seeking an award of custody of the child. The aunt alleged that the mother was ill and unable to care for the child and that the mother fully supported an award of custody of the child to the aunt. In an affidavit submitted in support of her dependency petition, the aunt alleged that the father lived in a home with a number of his relatives, including a disabled brother who posed a threat to the child, who was five years old at the time. Also on December 2,2010, the juvenile court entered an order awarding pendente lite custody of the child to the aunt.

On January 5, 2011, the father filed an answer disputing the aunt’s claim that the child was dependent, and he asserted a counterclaim for an award of custody of the child. Later in January 2011, the aunt filed a suggestion of death in which she informed the juvenile court that the mother had died on December 23, 2010.

The juvenile court conducted an ore ten-us hearing on March 9, 2011. In May 2011, the aunt moved that the child be evaluated by a mental-health professional. The child’s guardian ad litem opposed that motion. The juvenile court granted the aunt’s motion and specified that the child’s guardian ad litem approve the parties’ selection of a therapist. On October 12, 2011, the aunt filed a notice in the juvenile court alleging that she was unable to comply with the May 2011 order because, she alleged, the guardian ad litem had refused to approve a counselor for the child because he had stated that he did not feel that the child needed counseling.

On October 18, 2011, the juvenile court entered a judgment finding the child dependent and awarding custody of her to the aunt. The father timely appealed.

The evidence in the record on appeal indicates that, from the time of the child’s birth in July 2005 until December 2009, the father visited the child only in the mother’s home. The father stated that the mother’s moods had varied and that he had found it easier to allow her to arrange his visitation at her convenience rather than to request specific visitation with the child. The father testified that until December 2009 his visitation with the child had been regular and that he had sometimes stayed overnight in the mother’s home in order to exercise visitation with the child.

The father testified that he began having regular weekend visitation with the child in his home in December 2009 and that he often helped the mother with the child during the week. The father testified that, because of the mother’s deteriorating health during the fall of 2010, he often took the child to or retrieved her from school, and he stated that the child sometimes visited him overnight on school nights during that time.

According to the father, before Thanksgiving 2010 the mother informed him that the child would spend the Thanksgiving holiday with the aunt and that he would have the child for the Christmas holidays. However, according to the aunt, shortly before Thanksgiving, the mother arranged for an attorney to draft an agreement pursuant to which she assigned her custodial rights to the child to the aunt. Thereafter, in early December 2010, the aunt filed her dependency petition and was awarded temporary custody of the child. The father testified that he first learned that the child was living with the aunt when he was served with the paperwork for the dependency action in mid-December 2010.

The father testified that when he was served with the paperwork for the dependency action he immediately contacted his attorney. The father stated that he did not attempt to contact the aunt because he did not know her contact information.

The father stated that a friend had informed him of the mother’s death five days after it occurred when the mother’s obituary was published in a newspaper. The aunt testified that, when the mother died, she did not have the father’s telephone number and, thus, did not attempt to contact him to inform him of the mother’s death until December 30, 2010. The aunt testified that she ultimately obtained the father’s contact information from an Internet search and that the father had already learned of the mother’s death at the time she contacted him.

The father acknowledged that between the entry of the December 2, 2010, pen-dente lite custody order and the March 9, 2011, hearing on the merits he had contacted the child only twice by telephone and that those contacts had occurred in January and February 2011. The father testified that he did not have the aunt’s contact information in December 2010. The father explained that he did not contact the child more frequently because he did not want to do anything to upset the child. In addition, the aunt arranged for the child to call the father on the telephone on two other occasions. It does not appear that the father visited the child between the time the aunt obtained pendente lite custody and the March 9, 2011, hearing. The aunt argued before the juvenile court that the father’s failure to maintain regular contact with the child demonstrated a lack of commitment to the child.

The aunt also based a portion of her dependency allegations on the fact that, until shortly after the mother’s death, the father had resided with his disabled brother. The father’s brother is disabled as a result of a brain injury he suffered in an automobile accident. The father testified that his disabled brother has neurological and intellectual deficits and that he also has physical injuries that require that he use a walker or a wheelchair. The father testified that his disabled brother needs continual supervision and that the father’s mother provides that care.

In 2001, the disabled brother was accused of inappropriate sexual contact with a four- or five-year-old girl. The father insisted that he knew nothing about those allegations. The father explained that he did not live with his disabled brother and his mother when those allegations arose, that he did not want to have anything to do with that situation, and that his mother had handled the situation. The father stated that, even after the birth of the child and the time when the child visited him in the home he shared with his disabled brother, he had not inquired about that incident. He also acknowledged that the child’s mother had expressed concern about the child’s being around his disabled brother because of the 2001 abuse allegations. The father testified that, in spite of those concerns expressed by the mother, he had still not inquired about the 2001 alleged abuse incident.

The father insisted, however, that the child had never been alone in the presence of his disabled brother when she visited him in the home he had shared with his disabled brother. The father explained that the child had had little interaction with his disabled brother.

In January 2011, the father moved from the home he had shared with his disabled brother into a three-bedroom mobile home. At the direction of the juvenile court, the Calhoun County Department of Human Resources (“DHR”) conducted a home-study evaluation on the father’s home. DHR approved the father’s home as appropriate and adequate for the father and the child.

A DHR social worker who had investigated the 2001 allegation of abuse against the disabled brother testified at the hearing. The social worker testified that she had found the allegations of abuse to be credible but that the district attorney had declined to prosecute the disabled brother because of his intellectual deficiencies. The social worker testified that, assuming a young girl was living in the home with the disabled brother in 2001, she would have “strongly cautioned” the child’s parents about restricting the child’s contact with the disabled brother. However, the social worker stated, she would not have recommended the removal of a child from the home at the time she conducted the investigation of the abuse allegations.

The father testified that the mobile-home park in which his mobile home was located belonged to an estate managed by his mother for the benefit of his disabled brother. That mobile-home park was located between 300 and 500 yards from the home the father had shared with his mother and his disabled brother.

The father testified that, in addition to the mobile-home park, his family also owned a horse stable. He stated that his primary employment consisted of managing the mobile-home park and the horse stable for his family and that, although he did not have a set salary in that employment, he withdrew money from the family business when he needed it. The father also testified that he obtained some additional income working as a farrier and that he occasionally earned income painting or remodeling homes. The father stated that his work schedule was flexible and that, if he received custody of the child, he did not expect to need for the child to attend an after-school care program. The father also testified that his mother and his grandmother both lived nearby in the family home and that both were available and willing to assist him in caring for the child if the need arose.

The father testified that his child-support obligation to the mother had been $700 per month, plus the $110 cost of reimbursing the mother for health-insurance coverage for the child. According to the father, he had not missed any child-support payments to the mother, and he had paid child support to the aunt during the time that the child has been in her pendente lite custody.

The aunt presented evidence indicating that the child was doing well in her home and performing well in school. The aunt also presented evidence indicating that she had always been actively involved in the child’s life and that the child had spent a great deal of time in the aunt’s home during her life. The aunt testified that the mother had wanted the aunt, rather than the father, to have custody of the child and that she had “made promises” to the mother.

On appeal, the father argues that the evidence does not support the juvenile court’s dependency finding. A “dependent child” is one

“who has been adjudicated dependent by a juvenile court and is in need of care or supervision and meets any of the following circumstances:
“1. Whose parent, legal guardian, legal custodian, or other custodian subjects the child or any other child in the household to abuse, as defined in subdivision (2) of Section 12-15-301 or neglect as defined in subdivision (4) of Section 12-15-301, or allows the child to be so subjected.
“2. Who is without a parent, legal guardian, or legal custodian willing and able to provide for the care, support, or education of the child.
“3. Whose parent, legal guardian, legal custodian, or other custodian neglects or refuses, when able to do so or when the service is offered without charge, to provide or allow medical, surgical, or other care necessary for the health or well-being of the child.
“4. Whose parent, legal guardian, legal custodian, or other custodian fails, refuses, or neglects to send the child to school in accordance with the terms of the compulsory school attendance laws of this state.
“5. Whose parent, legal guardian, legal custodian, or other custodian has abandoned the child, as defined in subdivision (1) of Section 12-15-301.
“6. Whose parent, legal guardian, legal custodian, or other custodian is unable or unwilling to discharge his or her responsibilities to and for the child.
“7. Who has been placed for care or adoption in violation of the law.
“8. Who, for any other cause, is in need of the care and protection of the state.”

§ 12-15-102(8), Ala. Code 1975.

With regard to the standard this court applies in reviewing a dependency determination, this court has stated:

“A finding of dependency must be supported by clear and convincing evidence. [Former] § 12 — 15—65(f)[, Ala. Code 1975 (now codified at § 12-15-310, Ala.Code 1975)]; M.M.S. v. D.W., 735 So.2d 1230, 1233 (Ala.Civ.App.1999). However, matters of dependency are within the sound discretion of the trial court, and a trial court’s ruling on a dependency action in which evidence is presented ore tenus will not be reversed absent a showing that the ruling was plainly and palpably wrong. R.G. v. Calhoun County Dep’t of Human Res., 716 So.2d 219 (Ala.Civ.App.1998); G.C. v. G.D., 712 So.2d 1091 (Ala.Civ.App.1997); and J.M. v. State Dep’t of Human Res., 686 So.2d 1253 (Aa.Civ.App.1996).”

J.S.M. v. P.J., 902 So.2d 89, 95 (Ala.Civ.App.2004). “Clear and convincing evidence” is

“[e]videnee that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion. Proof by clear and convincing evidence requires a level of proof greater than a preponderance of the evidence or the substantial weight of the evidence, but less than beyond a reasonable doubt.”

§ 6-ll-20(b)(4), Aa.Code 1975.

The evidence in the record on appeal indicates that the father has regularly visited the child and paid child support. In the year before the mother’s death, the father became more involved in the child’s life and provided the mother assistance in caring for the child during that time.

In her brief before this court, the aunt cites financial considerations pertaining to the father as support for her contention that the child is dependent. The aunt contends that the father’s employment is unstable and that he is dependent on his mother, who manages the disabled brother’s estate, for his income. The father’s testimony, however, indicates that he manages a family business and has supported himself from the income he receives from that business. The record contains no evidence indicating that the father’s dependence upon the family business for his income is any more unstable than that of any other person working for an employer.

The father testified that he regularly and consistently paid child support and for the child’s health insurance and that he could support the child if she was in his custody. There is no evidence indicating that the father has ever failed to contribute to the child’s support or that he was unable to support her at the time of the hearing in this matter.

The aunt also contends that the child is dependent because the father has not obtained health-insurance coverage for the child. We decline to agree that a child is dependent for that reason. Further, the evidence indicates that the father had reimbursed the mother for the premiums she had paid to maintain health insurance for the child, and, at the time of the hearing, the father indicated that the child was covered under the aunt’s health-insurance policy. There is no evidence indicating that the father could not or would not obtain health-insurance coverage for the child if custody was awarded to him.

The aunt also contends that the father’s lack of involvement in the child’s life during the period after the mother’s death demonstrates a lack of commitment to the child on the part of the father. The aunt points out that the father did not attempt to see the child at Christmas. However, the evidence indicates that the father learned that the aunt had pendente lite custody of the child in mid-December 2010 and that he immediately consulted his attorney about how to appropriately handle the situation. The father testified that he did not know how to contact the aunt, and the aunt’s testimony that she could not contact the father to alert him about the mother’s death indicates that the two had had little contact and knowledge about each other.

The evidence indicates that the father has never been assertive with regard to his rights to the child. The father indicated that he had visited the child at the mother’s discretion because he did not want to “rock the boat.” He also made little effort to contact the child during the time between the mother’s death and the March 9, 2011, hearing; the father explained his failure to maintain regular contact with the child as his attempt “not to upset [the child] in any way.” The father also testified that he was not confrontational, that he believed that the aunt was providing excellent care for the child, and that he believed that the aunt was doing what she believed was in the child’s best interests. We agree with the aunt that the father has sometimes failed to actively assert his rights as a father. However, there is no indication in the record on appeal that the father has abandoned the child or that he did not believe that the child was being appropriately cared for during the pen-dency of this matter.

The aunt also bases her dependency allegations on her concerns regarding the father’s disabled brother. However, shortly after the mother’s death, the father moved out of the home he had shared with his family and established his own residence for himself and the child. The DHR social worker who had investigated the 2001 abuse allegations against the disabled brother stated that, even given those allegations, which she found credible, she would not have recommended the removal of a young child from the home; rather, she testified she would have cautioned the child’s parents not to allow the child to be around the disabled brother without supervision. The father testified that the child has never been left alone with his disabled brother and that he did not plan to leave her alone with him in the future. The record contains no evidence indicating that the child has ever been left unsupervised with the disabled brother.

Given the totality of the circumstances, we must conclude that the juvenile court’s dependency determination is not supported by clear and convincing evidence. Rather, the evidence indicates that the father has been regularly involved in the child’s life and that he has consistently provided for her support. The father became more involved in caring for the child in response to the mother’s health crisis in the year before the mother’s death. The concerns regarding the father’s ability to support the child, or the child’s possible exposure to the father’s disabled brother, are speculative, particularly given that there is no evidence indicating that the father has failed to support the child or that she was ever left unsupervised with the father’s disabled brother. The record contains no evidence indicating that the father is not ready and willing to appropriately parent and care for the child.

The aunt based her claim for custody of the child on an assertion that the child is dependent. The evidence does not support a finding that the child is dependent. Accordingly, we reverse the juvenile court’s judgment and remand the cause for the entry of a judgment consistent with this opinion.

REVERSED AND REMANDED.

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

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

      . The mother and the parties believed that the mother was suffering from symptoms of fibro-myalgia. The record indicates that the mother learned only shortly before her death that she had terminal cancer. It is not clear, however, when the mother learned of that diagnosis, or when the father was informed of that diagnosis.