author: MOORE, Judge.

text:
    B.B. v. D.H.
    2110215.
    Court of Civil Appeals of Alabama.
    April 13, 2012.

      Seth D. Stringer, Birmingham, for appellant.
    Sharon E. Ficquette, chief legal, counsel, and Karen P. Phillips, asst. atty. gen., Department of Human Resources, for ap-pellee.
   MOORE, Judge.

B.B. (“the mother”) appeals from a judgment of the Jefferson Juvenile Court (“the juvenile court”) continuing custody of her child, M.H. (“the child”), with the child’s paternal grandmother, D.H. (“the paternal grandmother”), and closing the case.

The record shows that the juvenile court obtained jurisdiction over the child when the paternal grandmother filed a petition on April 13, 2009, alleging that the child was dependent. The juvenile court originally awarded custody of the child to the paternal grandmother based on a purported stipulation of “the parties” that was memorialized in an order entered by the juvenile-court referee on August 20, 2009, which was confirmed by the juvenile court. However, the mother was not served with the dependency petition until October 15, 2009, and, once she was notified of the August 20, 2009, order, the mother immediately moved to have it set aside. Although the record is unclear as to whether the juvenile court granted that motion, the record does clearly show that the juvenile court “returned” custody of the child to the mother on October 30, 2009.

Over the course of the next 15 months the mother retained custody of the child subject to certain conditions established by, and periodic reviews conducted by, the juvenile court. Reports from the Jefferson County Department of Human Resources (“DHR”) during that period indicated that the mother could properly and safely care for the child.

On February 11, 2011, after the mother had failed to appear for a scheduled review hearing on February 8, 2011, the juvenile court entered an order noting the August 20, 2009, order, which it described as a judgment finding the child dependent, and awarding custody of the child to the paternal grandmother. Subsequently, the juvenile court did not vacate the February 11, 2011, judgment, as requested by the mother, but, on April 13, 2011, it entered an order maintaining custody of the child with the paternal grandmother and awarding the mother unsupervised visitation.

At some point in May 2011, the mother allegedly refused to return the child to the paternal grandmother following a visitation, prompting the child’s guardian ad litem to file a motion for a rule nisi and for return of the child. The juvenile court ordered that the child be returned to the custody of the paternal grandmother, but it reserved ruling on the motion for a rule nisi and set the case for a hearing on October 26, 2011. On September 19, 2011, DHR filed a motion for an immediate hearing alleging that it would be in the best interest of the child for custody to be returned to the mother. That motion was also scheduled to be heard on October 26, 2011.

The mother did not appear for the October 26, 2011, hearing. The juvenile court entered a judgment that same day in which it denied the motion for a continuance filed by the mother’s attorney, ordered that custody of the child remain with the paternal grandmother, relieved DHR of supervision of the child, and closed the case. On November 7, 2011, the mother filed a motion to alter, amend, or vacate the juvenile court’s judgment. She alleged that she had been unable to attend the October 26, 2011, hearing because of transportation issues and that it would be in the best interest of the child for her to be awarded custody. The juvenile court denied the mother’s postjudgment motion on November 8, 2011. The mother filed her notice of appeal on November 22, 2011. The juvenile court certified the record on appeal as adequate on January 6, 2012. See Rule 28(A)(1)(a), Ala. R. Juv. P.

On appeal, the mother essentially argues that the juvenile court did not, on October 26, 2011, have before it sufficient evidence to find the child dependent and to award “permanent” custody to the paternal grandmother. We pretermit discussion of those issues because we find, ex mero motu, that this appeal arises from a void judgment. See B.L.R. v. N.M.N., 69 So.3d 868, 869 (Ala.Civ.App.2011) (recognizing duty of this court to consider a lack of subject-matter jurisdiction ex mero motu).

The orders or judgments entered by the juvenile court that purport to adjudicate the child dependent are void. The first order, entered on August 20, 2009, found the child dependent based on a purported stipulation of the parties. However, the record unequivocally shows that the mother had not been served when that order was entered and did not appear in the ease before October 15, 2009, when she was first served with the paternal grandmother’s dependency petition. Because the mother had not been served and was deprived of an opportunity to be heard on the matter in August 2009, that dependency adjudication was void. See M.G. v. J.T., 90 So.3d 762 (Ala.Civ.App.2012).

The juvenile court arguably found the child dependent on February 11, 2011, when it noted the August 20, 2009, order and awarded custody of the child to the paternal grandmother. However, the juvenile court did not notify the mother that it was holding an adjudicatory hearing on February 8, 2011, the date of the hearing upon which the February 11, 2011, judgment was based. In fact, the juvenile court’s February 11, 2011, judgment does not reflect that it held such a hearing on February 8, 2011. Moreover, the juvenile court expressly stated in its February 11, 2011, judgment that it had found the child dependent based solely on the void August 20, 2009, order. A parent cannot be deprived of the custody of a child without due process, Thorne v. Thorne, 344 So.2d 165 (Ala.Civ.App.1977), which, in this context, requires reasonable notice of a hearing on the issue of the dependency of the child, M.H. v. Jer. W., 51 So.3d 334 (Ala.Civ.App.2010), as well as the presentation of clear and convincing evidence of the dependency of the child. M.G., supra. Because the juvenile court did not afford the mother due process, its February 11, 2011, dependency adjudication is void. M.H., 51 So.3d at 338. The fact that the juvenile court erroneously failed to vacate the February 11, 2011, judgment does not affect our decision because a void judgment is a legal nullity with no force or effect. See Leathers v. Gover, 447 So.2d 810, 811 (Ala.Civ.App.1984).

The juvenile court notified the mother that it intended to adjudicate the guardian ad litem’s motion for a rule nisi and DHR’s motion to return the child to the mother on October 26, 2011. The juvenile court did not notify the mother that it intended to conduct an adjudicatory hearing to decide the dependency of the child or a disposi-tional hearing to determine the “permanent” custodial situation for the child at that scheduled hearing. Without such notice, the mother was not provided an opportunity to be heard on those issues. See M.H., supra (holding that juvenile court violated grandparents’ due-process rights by holding adjudicatory dependency hearing after notifying grandparents that the only issue that would be heard was whether custody should be modified). Because the juvenile court did not afford the mother due process, its October 26, 2011, judgment is void as well. M.H., 51 So.3d at 338.

The record reflects that the child has never been adjudicated a dependent child in accordance with due process. When a judgment of dependency is entered in a manner inconsistent with due process, that judgment is void and will not support an appeal. M.H., 51 So.3d at 338. Therefore, we dismiss the mother’s appeal, albeit with instructions to the juvenile court to vacate any and all judgments purporting to find the child dependent. We note that the dependency petition has been pending since April 13, 2009, and that the child has been withheld from the custody of the mother since at least February 11, 2011. We therefore order the juvenile court to conduct an adjudicatory hearing forthwith and to conduct such other proceedings as are necessary depending on its determination as to the dependency of the child.

APPEAL DISMISSED WITH INSTRUCTIONS.

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

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

      . By closing the case, the juvenile court impliedly denied the pending motion for a rule nisi filed by the child’s guardian ad litem.

      . We note that the juvenile court "returned” custody of the child to the mother on October 30, 2009, and that she maintained custody of the child through February 11, 2011. During that time, the juvenile court entered several orders, none of which expressly found the child dependent.

      . The record is unclear as to whether the child was in the physical custody of the paternal grandmother or the mother between April 13, 2009, and October 30, 2009.


source: Caselaw Access Project

author: BRYAN, Judge.

license: Public Domain

text:
    J.A. and D.A. v. C.M.
    2110262.
    Court of Civil Appeals of Alabama.
    April 13, 2012.
    Chad A. Hopper of Buttram, Hawkins & Hopper, LLC, Centre, for appellants.
    Rodney L. Stallings, Centre, for appel-lee.
   BRYAN, Judge.

J.A. (“the father”) and D.A. (“the mother”) appeal from a judgment of the Cherokee Juvenile Court (“the juvenile court”) that concluded that their three children were not dependent and that ordered the custody of the children to be returned to the mother and the father. The mother and the father appealed from that judgment because the juvenile court awarded C.M. (“the maternal aunt”) visitation with the children, despite its conclusion that the children were not dependent.

The record on appeal reveals the following pertinent procedural history. On July 8, 2011, the maternal aunt filed a petition in the juvenile court alleging that the children were dependent. On the same day, the maternal aunt and J.T. (“the maternal grandmother”) filed a verified petition for pendente lite joint custody of the children. Also on July 8, 2011, the juvenile court entered an order awarding pendente lite custody of the children to the maternal grandmother and the maternal aunt. The juvenile court subsequently entered an order allowing the mother and the father to visit the children. On August 5, 2011, the juvenile court entered an order granting pendente lite custody solely to the maternal aunt.

The juvenile court conducted a final hearing on October 27, 2011, and it entered a judgment on November 9, 2011, holding that the children were not dependent. The juvenile court ordered that custody of the children be returned to the mother and the father. However, the juvenile court also awarded the maternal aunt visitation with the children one weekend each month and one week during the summer and allowed the maternal aunt to have telephone contact with the children at least once a week. The mother and the father filed a timely postjudgment motion, arguing, among other things, that the law did not allow an award of visitation to the maternal aunt. Their postjudgment motion was denied by operation of law, see Rule 1(B), Ala. R. Juv. P., and the mother and the father filed a timely notice of appeal.

On appeal, the mother and the father argue that the trial court erred by awarding the maternal aunt visitation with the children after it determined that the children were not dependent. Whether the Alabama Juvenile Justice Act, § 12-15-101 et seq., Ala.Code 1975, allows for an award of visitation in the circumstances presented in this appeal is a question of law. This court reviews questions of law de novo. See Ex parte Byrom, 47 So.3d 791, 794 (Ala.2010) (citing Simcala, Inc. v. American Coal Trade, Inc., 821 So.2d 197, 200 (Ala.2001)) (“Because the issue before us presents a pure question of law, we review the matter de novo, without any presumption of correctness.”).

“Juvenile courts are purely creatures of statute and have extremely limited jurisdiction. See Ex parte K.L.P., 868 So.2d 454, 456 (Ala.Civ.App.2003). That limited jurisdiction allows a juvenile court to make a disposition of a child in a dependency proceeding only after finding the child dependent. V.W. v. G.W., 990 So.2d 414, 417 (Ala.Civ.App.2008) (quoting K.B. v. Cleburne County Dep’t of Human Res., 897 So.2d 379, 389 (Ala.Civ.App.2004) (Murdock, J., concurring in the result)) (“ ‘[I]n order to make a disposition of a child in the context of a dependency proceeding, the child must in fact be dependent at the time of that disposition.’ ”).”

T.B. v. T.H., 30 So.3d 429, 431 (Ala.Civ.App.2009) (first emphasis added). Furthermore, this court has held that, in a dependency action, “[i]f a juvenile court determines that the child is not dependent, the court must dismiss the dependency petition.” K.C.G. v. S.J.R., 46 So.3d 499, 501-02 (Ala.Civ.App.2010). See also § 12-15-310(b), Ala.Code 1975 (“If the juvenile court finds that the allegations in the [dependency] petition have not been proven by clear and convincing evidence, the juvenile court shall dismiss the petition.”). When a juvenile court determines that a child is not dependent, the juvenile court “lack[s] jurisdiction to enter a judgment affecting the custody of the child.” L.R.J. v. C.F., 75 So.3d 685, 687 (Ala.Civ.App.2011) (citing T.B., 30 So.3d at 431).

In its final judgment, the juvenile court explicitly found that the children were not dependent. Accordingly, the juvenile court did not have jurisdiction to enter a judgment awarding visitation to the maternal aunt or to otherwise “affect the custody” of the children. The only thing the juvenile court had jurisdiction to do after finding that the children were not dependent was to dismiss the dependency petition and to allow the custody of the children to be returned to the mother and the father. See § 12-15-310(b); J.W. v. T.D., 58 So.3d 782, 792 (Ala.Civ.App.2010) (“There is no provision in the Alabama Juvenile Justice Act for the disposition of a child if the child is not proven to be dependent, and, in fact, the Act requires the juvenile court to dismiss the petition.”); and J.L. v. W.E., 64 So.3d 631, 637 (Ala.Civ.App.2010) (in a dependency proceeding, when a child has a parent able and willing to care for him or her, there is no need to conduct the dispositional phase of a dependency proceeding because the child would simply return to his or her parent or parents).

Accordingly, we reverse the juvenile court’s judgment insofar as it awarded the maternal aunt visitation with the children. The cause is remanded with instructions to the juvenile court to enter a judgment consistent with this opinion.

REVERSED AND REMANDED.

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

      . There is an order in the record purporting to deny the mother and the father's post-judgment motion. The order indicates that it was filed in the clerk’s office on December 1, 2011, but there is no indication in the record that the order had been entered. See Rule 58(c), Ala. R. Civ. P. The mother and the father filed their postjudgment motion on November 16, 2011; thus, it was denied by operation of law on November 30, 2011. See Rule 1(B), Ala. R. Juv. P.

      . Accordingly, we reject the contention in the maternal aunt’s brief that this court could conclude that there was an implicit finding of dependency in the juvenile court's final judgment, which would have allowed the juvenile court to make any disposition of the children that it found to be in the best interests of the children. See § 12-15-314(a)(4), Ala.Code 1975.


author: PITTMAN, Judge. MOORE, Judge,

text:
    OFFICE MAX, INC. v. ACADEMY, LTD. Office Max, Inc. v. Sandra Richey.
    2100658 and 2100659.
    Court of Civil Appeals of Alabama.
    April 13, 2012.

      Matthew C. Williams and Rob A. Horn-buckle, Birmingham, for appellant.
    Charles H. Clark, Jr., and Joshua A. Wrady of Huie, Fernambueq & Stewart, LLP, Birmingham, for appellee Academy, Ltd.
    Donald R. Rhea of Rhea, Boyd, Rhea & Coggin, Gadsden, for appellee Sandra Richey.
   PITTMAN, Judge.

Office Max, Inc. (“Office Max”), the former employer of Sandra Richey (“the employee”), seeks review in these consolidated appeals of two orders entered by the Etowah Circuit Court in a single civil action that, in effect, determined that Office Max is solely responsible for providing benefits to the employee under the Alabama Workers’ Compensation Act, Ala. Code 1975, § 25-5-1 et seq. (“the Act”), and directing Office Max to provide particular medical treatment to the employee. Because we lack appellate jurisdiction as to either appeal, we dismiss both appeals.

The employee filed a civil action in July 2007, alleging that she had suffered injuries to her knees and to her shoulders in 2002 and in 2005, respectively, while in the line and scope of her employment with Office Max; she sought an award under the Act of “all compensation, disability, vocational, medical, rehabilitation and other benefits” to which she was entitled to receive from Office Max. On three occasions, in June 2008, March 2010, and July 2010, the employee requested the issuance of orders directing Office Max to provide her with medical care from the treating physician authorized by Office Max, Dr. William Hartzog; the trial court granted those requests over the objections of Office Max. In arguments presented to the trial court at a hearing on the employee’s second request, during which hearing the trial court received testimony from the employee and admitted various medical documents into evidence, Office Max indicated that the employee had left her employment with Office Max and had taken a job with Academy, Ltd. (“Academy”); Office Max contended that that subsequent employment had caused or contributed to the employee’s knee and shoulder conditions such that, under the “last-injurious-exposure” rule, see generally United States Fid. & Guar. Co. v. Stepp, 642 So.2d 712, 715 (Ala.Civ.App.1994), Academy should be deemed responsible for providing benefits to the employee under the Act. In response, counsel for the employee argued, and the trial court ultimately agreed, that Academy could properly be joined by Office Max as a third-party defendant.

Office Max then filed a motion, which was granted, to implead Academy as a party, and it asserted a third-party claim against Academy in which it alleged that the employee had suffered a “re-injury” or an aggravation of a previous shoulder injury and that Academy, rather than Office Max, should be held liable under the Act as to benefits owed to the employee with respect to the injuries she had alleged in her complaint. Academy moved for a summary judgment in its favor on Office Max’s third-party claim, contending that any injuries the employee might have sustained in the line and scope of her employment with Academy were merely recurrences of injuries originally sustained in the line and scope of the employee’s work for Office Max. Office Max filed a response in opposition to Academy’s summary-judgment motion, contending that a genuine issue of material fact existed as to whether the employee had suffered further damage while employed by Academy. The employee, for her part, filed a fourth motion seeking to compel medical treatment, averring that she had been diagnosed with a lesion in her left knee and that Office Max should be directed to authorize surgery to correct that condition. In separate orders entered on February 28, 2011, the trial court granted both Academy’s summary-judgment motion and the employee’s fourth motion to compel. Office Max filed separate notices of appeal as to those orders, and those appeals were consolidated by this court ex mero motu.

As was noted in Ex parte Vance, 900 So.2d 394 (Ala.2004), workers’ compensation actions “ ‘shall proceed in accordance with and shall be governed by the same rules and statutes as govern civil actions.’ ” 900 So.2d at 398 n. 7 (quoting Ala.Code 1975, § 25-5-88). The court in Ex parte Vance also reasoned that because the Alabama Rules of Civil Procedure are applicable in workers’ compensation actions, Rule 54(b), Ala. R. Civ. P., applies in such actions. Id. That rule provides, in pertinent part, that “[w]hen more than one claim for relief is presented in an action, whether as a claim ... or third-party claim, or when multiple parties are involved,” a trial court must make an express determination that there is no just reason for delay and must make an express direction that a final judgment be entered in order for a ruling that “adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties” to be a final, appealable judgment.

In this case, we have no such determination or direction as to either of the trial court’s orders from which Office Max has appealed. Further, because the workers’ compensation claim of the employee against Office Max remains pending in the trial court, the trial court’s orders have adjudicated fewer than all the controverted claims. On the authority of Warren v. Wester, 796 So.2d 377, 379 (Ala.Civ.App.2001), and Bryant v. Flagstar Enters., Inc., 717 So.2d 400, 401-02 (Ala.Civ.App.1998), we conclude that the trial court has not entered a final judgment that will support Office Max’s appeals.

The appeals are dismissed. In dismissing the appeals, however, we note that (a) under Rule 54(b), the trial court retains the power to revise its orders at any time before the entry of a final judgment; and (b) under Ala.Code 1975, § 25-5-88, the trial court has the responsibility to make findings of fact and state conclusions of law in making its final determinations concerning the merits of the parties’ respective contentions.

2100658 — APPEAL DISMISSED.

2100659 — APPEAL DISMISSED.

THOMPSON, P.J., and BRYAN, J., concur.

MOORE, J., dissents, with writing, which THOMAS, J., joins.

MOORE, Judge,

dissenting.

As I explained at length in my special writing in Ex parte Cowabunga, Inc., 67 So.3d 136, 141 (Ala.Civ.App.2011), under § 25-5-81(e), Ala.Code 1975, an appeal lies from any order or judgment deciding a controversy under the Alabama Workers’ Compensation Act (“the Act”), § 25-5-1 et seq., Ala.Code 1975, regardless of its “finality” under civil-law standards. 67 So.3d at 141-42 (Moore, J., concurring in part and dissenting in part). In this case, the Etowah Circuit Court (“the trial court”) conclusively decided a controversy among Office Max, Inc., Academy, Ltd., and Sandra Richey regarding the payment of certain medical benefits sought by Richey by entering a summary judgment in favor of Academy and by entering an order requiring Office Max to provide the requested medical treatment. Office Max appeals those orders, and the majority dismisses those appeals because the orders do not completely resolve Richey’s workers’ compensation claim; however, § 25-5-81 (e) allows appeals from “interlocutory” orders that do not completely resolve all aspects of a workers’ compensation claim. Ex parte Cowabunga, 67 So.3d at 142.

In Ex parte Vance, 900 So.2d 394 (Ala.2004), our supreme court held that a trial court is not required to certify a workers’ compensation judgment as final when a retaliatory-discharge claim remains pending; however, the court did not consider whether an appeal would lie from a “nonfi-nal” workers’ compensation judgment because it appears that that issue was not raised. In its discussion, the supreme court stated that, “with the notable exceptions found in §§ 25-5-81 and 25-5-88, [Ala.Code 1975,] the Alabama Rules of Civil Procedure apply to workers’ compensation cases.” 900 So.2d at 398 n. 7 (emphasis added). Sections 25-5-81 and 25-5-88, Ala.Code 1975, make any determination of “a controversy” regarding the payment of benefits under the Act “ ‘conclusive and binding between the parties’ ” and provide that an appeal may be taken within 42 days from “ ‘an order or judgment’ ” containing such a determination. Those Code sections do not require that the order or judgment be final under the rules of civil procedure or other state law. See Ex parte Cowabunga, 67 So.3d at 141-42 (Moore, J., concurring in part and dissenting in part). Thus, Ex parte Vance does not mandate that this court dismiss these appeals.

The trial court complied with § 25-5-88 by entering extensive findings of fact and conclusions of law in its summary-judgment order. Those same findings of fact and conclusions of law support the trial court’s order granting Richey’s “motion to compel medical treatment,” and the trial court had no need to duplicate them in that order. Therefore, I conclude that this court should consider the merits of these appeals. Because the majority dismisses the appeals, I respectfully dissent.

THOMAS, J., concurs.

      . As was also noted in Ex parte Vance, “ '[cjertifications under Rule 54(b) should be entered only in exceptional cases and should not be entered routinely.’ ” 900 So.2d at 398 (quoting State v. Lawhorn, 830 So.2d 720, 725 (Ala.2002)).

      . We note that Office Max has included a statement in its brief requesting this court, if it determines that no final judgment has been entered, to treat its appellate brief as a mandamus petition. We decline Office Max’s request. As to the order granting Academy's summary-judgment motion, mandamus will not lie as a matter of law. See Ex parte Showers, 812 So.2d 277, 281 (Ala.2001) (holding that, with the exception of summary-judgment motions based on sovereign-immunity issues, appellate courts "will not review the merits of a summary-judgment motion through a writ of mandamus”). As to the order compelling medical treatment, we note that Office Max’s core contention is that either it or Academy will ultimately be held responsible for further medical treatment; thus, unlike the litigation posture present in Ex parte Cowabunga, Inc., 67 So.3d 136 (Ala.Civ.App.2011), which involved only the employer and the employee, a proper appeal by Office Max from a final judgment addressing Academy's responsibilities will serve as an adequate remedy.


author: PER CURIAM.

text:
    Aloysius T. HENRY v. Barry DUPREE.
    2100970.
    Court of Civil Appeals of Alabama.
    April 13, 2012.
    Aloysius T. Henry, pro se.
    Bart Harmon, asst. gen. counsel, Alabama Department of Corrections, legal division, for appellee.
   PER CURIAM.

Aloysius T. Henry, an inmate incarcerated in the Alabama correctional system, filed a complaint in the Elmore Circuit Court seeking, pursuant to 42 U.S.C. § 1983, monetary and injunctive relief against Barry Dupree, an officer employed by the Alabama Department of Corrections, arising from an incident in which Dupree was alleged to have violated Henry’s Eighth Amendment right to be free from cruel and unusual punishment by using excessive force to restrain Henry. After Henry had filed a motion for a default judgment in the case and the case had been transferred to the Montgomery Circuit Court, Dupree filed a motion to dismiss or, in the alternative, for a summary judgment. The Montgomery Circuit Court, after a hearing, entered a summary judgment in favor of Dupree on October 20, 2010. Henry mailed a timely notice of appeal on November 23, 2010 (see Rule 4(c), Ala. R.App. P.), and the appeal was duly docketed in this court as case no. 2100213; however, because Henry failed to pay for the costs of preparing the clerk’s record as directed by this court, we dismissed that appeal for lack of prosecution on January 19, 2011, see Rule 2(a)(2)(C), Ala. R.App. P., and after overruling Henry’s application for rehearing issued our certifícate of judgment on March 28, 2011. See Henry v. Dupree (No. 2100213), — So.3d —(Ala.Civ.App.2011) (table).

On May 18, 2011, Henry mailed a second notice of appeal indicating his intent to appeal from the October 20, 2010, judgment to the Alabama Court of Criminal Appeals. That court, correctly noting that Henry’s claim was civil, rather than criminal, in nature, transferred the appeal to our supreme court, which in turn transferred the appeal to this court pursuant to Ala.Code 1975, § 12-2-7(6).

Although the parties have filed briefs in this appeal addressing the merits of the October 20, 2010, judgment, we do not reach those arguments because we lack jurisdiction to review that judgment. Rule 4(a)(1), Ala. R.App. P., which has been in effect since 1975, provides that, with certain exceptions not here pertinent, in all cases in which an appeal is permitted by law as of right to an appellate court, “the notice of appeal ... shall be filed with the clerk of the trial court within 42 days (6 weeks) of the date of the entry of the judgment or order appealed from.” Because Henry is seeking review of a final judgment entered on October 20, 2010, the last day for him to have timely filed a notice of appeal in this case was December 1, 2010. Although Rule 4(c), Ala. R.App. P., provides that a notice of appeal on behalf of an inmate confined in a penal institution and proceeding pro se shall be deemed filed as of the date of its mailing if it is deposited in the institution’s internal mail system on or before the last day for filing, Henry’s notice of appeal to the Court of Criminal Appeals was not mailed until May 18, 2011, well after the deadline for filing a notice of appeal had passed.

In Wilson v. Wilson, 53 Ala.App. 194, 298 So.2d 616 (Civ.App.1973), a case decided before the adoption of the Rules of Appellate Procedure, this court considered the propriety of a second appeal from a particular judgment that had been taken after the dismissal of an initial appeal from that same judgment. In Wilson, the pertinent judgment was last amended on August 15, 1972; the first appeal was filed on September 15, 1972, but was dismissed (as was Henry’s first appeal from the October 20, 2010, judgment) for lack of prosecution, after which a second appeal was filed on February 13, 1973. Citing FDIC v. Equitable Life Assurance Society of the United States, 289 Ala. 192, 266 So.2d 752 (1972), for the proposition that “where an appeal has been dismissed for the failure to present it properly, the effect is the same as if no appeal had been taken,” this court denied the appellee’s motion to dismiss the second appeal, noting that the second appeal had also been “taken within the time allowed for an appeal.” 53 Ala.App. at 198, 298 So.2d at 619. However, at the time Wilson was decided, a party generally had a full six months within which to appeal from a final judgment. See Rule 4, Ala. R.App. P., Committee Comments on 1975 Adoption. In this case, Henry had only 42 days within which to perfect an appeal from the October 20, 2010, judgment of the Montgomery Circuit Court; under Wilson, although Henry’s first appeal was timely, the dismissal of that appeal left him in the position “as if no appeal had been taken,” 53 Ala.App. at 198, 298 So.2d at 619, and his second appeal was not timely filed under Rule 4 in order to invoke the jurisdiction of this state’s appellate courts.

Under Rule 2(a)(1), Ala. R.App. P., “[a]n appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court.” This appeal is, therefore, due to be dismissed.

APPEAL DISMISSED.

All the judges concur.


author: THOMAS, Judge. MOORE, Judge, BRYAN, Judge,

text:
    Stacey Mallette FULLER n/k/a Stacey Mallette Hein v. Abel FULLER.
    2101011.
    Court of Civil Appeals of Alabama.
    April 13, 2012.

      Joan-Marie Dean, Huntsville, for appellant.
    James C. Alison, Huntsville, for appel-lee.
   THOMAS, Judge.

Stacey Mallette Hein (“the mother”) and Abel Fuller (“the father”) married in 1999. They separated in November 2004, while the mother was pregnant with twins, and she moved to Ontario, Canada. The parties’ children were born in Canada in March 2005.

In August 2005, the father sought a divorce from the mother in Alabama; in his divorce complaint, the father requested that the Madison Circuit Court (“the trial court”) determine the paternity of the children because he suspected that he was not the father of the children. The father also requested that, if his paternity was established, the trial court determine child-custody and child-support issues. The mother appeared specially in the Alabama divorce action; although the mother conceded that the trial court could divorce her and the father, she asserted that the trial court could not enter a judgment addressing child custody or child support because it lacked jurisdiction to do so. The trial court agreed and entered a judgment that divorced the parties and incorporated a settlement agreement addressing property issues; the judgment did not address paternity, child custody, or child support. Meanwhile, the mother sought and received a judgment in Canada in which the father was ordered to pay child support. The Canadian judgment awarded the mother custody of the parties’ children but awarded the father no visitation. The father had moved to dismiss the Canadian action because, he had argued, the Canadian court lacked jurisdiction over him; he was unsuccessful.

The mother attempted on two occasions to register the Canadian judgment in Alabama. Neither attempt resulted in a registration of the Canadian judgment. In 2007, an Alabama court declared that the Canadian judgment was void, presumably on the ground that the father was not properly served with the complaint that initiated that action. The mother did not appeal from that judgment.

In July 2009, the mother filed in the trial court what she styled as a petition for modification, seeking modification of the 2005 Alabama divorce judgment. She requested that the trial court modify the Alabama divorce judgment to address the child-custody and child-support issues that it had not resolved; she also specifically sought retroactive child support, an order directing the father to name the children as beneficiaries of a life-insurance policy on his life, an award compensating her for her travel expenses, and an attorney fee. The mother did not attempt to register the Canadian judgment a third time or seek a modification of its child-custody or child-support provisions, having twice failed in that endeavor and having received a determination that the Canadian custody and child-support judgment was void and unenforceable. As a result, we conclude that she was seeking an initial custody determination and an initial child-support order regarding the children as a modification to the 2005 Alabama divorce judgment.

The father answered the mother’s petition and filed a counterclaim in which he sought visitation with the children. In his answer, the father raised questions regarding the trial court’s jurisdiction over the proceeding. In response, the mother amended her modification petition to state that no court of any other state would have jurisdiction over the child-custody and child-support issues and that the mother expressly “consents to the jurisdiction of [the trial court] with respect to the child custody and support issues.”

After a trial in January 2011, the trial court entered a judgment on March 1, 2011, modifying the 2005 divorce judgment. In that judgment, the trial court determined that it had subject-matter jurisdiction over the child-custody and child-support issues, awarded the parties joint legal custody of the children, awarded the mother sole physical custody of the children, awarded the father specified visitation periods, and ordered the father to pay $1,254.47 per month in child support. According to the judgment, the father’s child-support obligation was made retroactive to April 23, 2009, the date of paternity-test results confirming the father’s paternity of the children. The trial court calculated the father’s child-support arrearage to be $26,343.87 and awarded the mother that amount. The trial court required the mother to maintain health insurance on the children and ordered that the parties would each be responsible for one-half of any noncovered medical expenses incurred on behalf of the children. Because the trial court also made the father’s responsibility for noncovered medical expenses retroactive to April 23, 2009, the trial court awarded the mother $226.30 for medical expenses incurred on behalf of the children between that date and the date of the judgment. The trial court denied all other relief requested by the parties.

The father sought postjudgment review of the trial court’s March 1, 2011, judgment. The father requested that he be allowed to secure health insurance covering the children so that he would not be required to pay 79.27% of the health-insurance premium paid by Joel Hein, the mother’s current husband, for the health insurance coverage for Hein, Hein’s child, the mother, and the children. According to the father, he could secure health insurance without an additional cost to him and that that insurance would provide full coverage to the children in New York, where the mother and the children were currently living. After a hearing on the father’s motion, the trial court amended its judgment on June 15, 2011, to adjust the father’s child-support obligation downward to $929.84 per month and to adjust the child-support arrearage to $19,526.58 as a result of the trial court’s decision not to include the health-insurance premium paid by the mother’s current husband in its child-support-obligation calculation. The court specifically found that it would be manifestly unjust and inequitable to include the health-insurance premium in the child-support-obligation calculation under the facts of the case.

The mother sought postjudgment review of the trial court’s June 15, 2011, amended judgment. On July 22, 2011, the mother filed a notice of appeal to this court. The trial court denied the mother’s post-judgment motion on August 24, 2011. The mother’s notice of appeal therefore became effective on that date. See Rule 4(a)(5), Ala. R.App. P. (providing that a notice of appeal filed before the resolution of a post-judgment motion is held in abeyance and becomes effective on the date the post-judgment motion is resolved by a ruling or denied by operation of law).

Although neither party raises the issue of jurisdiction, we must first consider whether we have jurisdiction over this appeal. Baker v. Baker, 25 So.3d 470, 472 (Ala.Civ.App.2009) (stating that an appellate court may take notice of jurisdictional matters ex mero motu). We begin our analysis by considering Alabama’s version of the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), codified at Ala.Code 1975, § 30-3B-101 et seq. The UCCJEA sets out the basis for subject-matter jurisdiction in a child-custody proceeding. A state has jurisdiction to enter an initial child-custody determination only when one of the criteria in § 30-3B-201(a) is satisfied. See § 30-3B-201(b) (“Subsection (a) is the exclusive jurisdictional basis for making a child custody determination by a court of this state”). Section 30-3B-201(a) provides:

“(a) Except as otherwise provided in Section 30-3B-204, a court of this state has jurisdiction to make an initial child custody determination only if:
“(1) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;
“(2) A court of another state does not have jurisdiction under subdivision (1), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under Section 30-3B-207 or 30-3B-208, and:
“a. The child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and
“b. Substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships;
“(3) All courts having jurisdiction under subdivision (1) or (2) have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under Section 30-3B-207 or 30-3B-208; or
“(4) No court of any other state would have jurisdiction under the criteria specified in subdivision (1), (2), or (3).”

As the trial court stated at the trial, Alabama was not the home state of the children at the commencement of the child-custody proceeding instituted by the mother. According to the mother, at the time she filed her petition for modification, she and the children were living, and had been living since the children’s birth in 2005, in Ontario, Canada. The mother argued, as noted above, that, based on § 30-3B-201(a)(4), the trial court had jurisdiction to make a child-custody determination because, she contended, no other state had jurisdiction to make a child-custody determination. However, the mother was operating on the assumption that the UCCJEA applies only to states of the United States. Indeed, the word “state” is. defined in § 30-3B-102(15) as “[a] state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.” However,

§ 30-3B-105 governs the international application of the UCCJEA and provides:

“(a) A court of this state shall treat a foreign country as if it were a state of the United States for the purpose of applying this article [§§ 30-3B-101 through 30-3B-112] and Article 2 [§§ 30-3B-201 through 3-3B-210].
“(b) Except as otherwise provided in subsection (c), a child custody determination made in a foreign country under factual circumstances in substantial conformity with the jurisdictional standards of this chapter [i.e., the UCCJEA] must be recognized and enforced under Article 3 [§§ 30-3B-301 through 30-3B-114].
“(c) A court of this state need not apply this chapter if the child custody law of a foreign country violates fundamental principles of human rights.”

No one has suggested that the child-custody law of Canada “violates fundamental principles of human rights,” so, pursuant to § 30-3B-105(a), we “shall treat [Canada] as if it were a state of the United States for the purpose of applying” the UCCJEA’s jurisdictional provisions. At the time of the Canadian custody proceeding in 2005, Canada was undisputedly the home state of the children — both of the children had been born there and had been living there with them mother since their birth. At the time the mother filed this action, Canada remained the home state of the children.

Alabama is not the children’s home state, and application of the UC-CJEA results in the conclusion that, at the time of the commencement of the mother’s action, Canada was the children’s home state. Thus, because another “state” had jurisdiction to enter a child-custody determination pursuant to the UCCJEA, the trial court in Alabama lacked subject-matter jurisdiction to make an initial child-custody determination in the present case. Subject-matter jurisdiction may not be conferred by agreement or consent. § 30-3B-201, Official Comment (“It should also be noted that since jurisdiction to make a child custody determination is subject matter jurisdiction, an agreement of the parties to confer jurisdiction on a court that would not otherwise have jurisdiction under this Act is ineffective.”); see also C.J.L. v. M.W.B., 868 So.2d 451, 453-54 (Ala.Civ.App.2003) (holding that a mother’s actions in litigating the propriety of the judgment under review could not confer jurisdiction by consent in violation of the UCCJEA). Because a judgment entered without subject-matter jurisdiction is void and cannot support an appeal, see C.J.L., 868 So.2d at 454, we dismiss the appeal insofar as it has been taken from the child-custody determination contained within the trial court’s judgment.

We turn now to the question whether the trial court had jurisdiction to render the child-support aspect of its judgment. The statute governing jurisdiction over child-support orders is Alabama’s version of the Uniform Interstate Family Support Act (“UIFSA”), codified at Ala.Code 1975, § 30-3A-101 et seq. Under UIFSA, an Alabama court may issue a child-support order if no other child-support order entitled to recognition under UIFSA has been issued and if “the individual seeking the order resides in another state.” § 30-3A-401(a). We note that, like the UCCJEA, UIFSA provides that a foreign jurisdiction may be considered to be a state for purposes of analysis under UIFSA. § 30-3A-101(20). Under § 30-3A-101(20), the term “state” is defined as

“a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. The term includes:
“(i) an Indian tribe; and
“(ii) a foreign jurisdiction that has enacted a law or established procedures for issuance and enforcement of support orders which are substantially similar to the procedures under this chapter, the Uniform Reciprocal Enforcement of Support Act, or the Revised Uniform Reciprocal Enforcement of Support Act.”

An Alabama court has already determined that the Canadian court lacked jurisdiction over the father, apparently based on his assertions that he was not properly served and on his lack of contact with Canada. In addition, we note that the Canadian judgment would not have been recognized under UIFSA, based on the fact that the father met none of the bases for the exercise of personal jurisdiction set out in § 30-3A-201, which provides:

“In a proceeding to establish, enforce, or modify a support order or to determine parentage, a court of this state may exercise personal jurisdiction over a nonresident individual or the individual’s guardian or conservator if:
“(1) the individual is personally served with summons and complaint within this state;
“(2) the individual submits to the jurisdiction of this state by consent, by entering a general appearance, or by filing a responsive document having the effect of waiving any contest to personal jurisdiction;
“(3) the individual resided with the child in this state;
“(4) the individual resided in this state and provided prenatal expenses or support for the child;
“(5) the child resides in this state as a result of the acts or directives of the individual;
“(6) the individual engaged in sexual intercourse in this state and the child may have been conceived by that act of intercourse;
“(7) the individual asserted parentage in the putative father registry as provided in Section 26-10C-1, which is maintained in this state by the Department of Human Resources; or
“(8) there is any other basis consistent with the constitutions of this state and the United States for the exercise of personal jurisdiction.”

As noted above, under § 30-3A-401, an Alabama court has jurisdiction to issue a child-support order if no other child-support order is recognized under UIFSA and if the party seeking the child-support order resides in another state. The Canadian child-support order is not recognized under UIFSA, and the mother resides in another “state.” Accordingly, based on § 30-3A-201, § 30-3A-401, and the facts of this case, the trial court had jurisdiction to enter its child-support order in the present case. We will therefore consider the mother’s arguments concerning the child-support aspects of the trial court’s judgment.

On appeal, the mother first argues that the trial court erred in failing to include in the child-support-obligation calculation the amount of the health-insurance premium paid by her current husband for group coverage through his employer. She also argues that the trial court erred when it imputed income to her in light of her testimony that she was unable to work. Regarding the trial court’s award of retroactive child support, the mother complains that the trial court erred in failing to award retroactive child support from the date of the birth of the children and that the trial court erred by using incorrect income figures in the calculation of the father’s child-support arrearage.

The testimony at trial established that when the mother and the father separated in November 2004, the mother went to Ontario to be with her family. At that time, she was a dental assistant. She had earned approximately $30,000 in 2004; in 2003, she had earned $24,857. After the children were born, the mother stayed at home with them for a time and then took a part-time position as a retail sales clerk. She last worked in April 2009.

The mother testified that 'she suffers from scoliosis that had progressively worsened. According to the mother, her doctor has “deemed [her] as not being able to work.” She said that she could not stand for more than 30 minutes before she felt like “her spine is crushing.” She also said that she could not sit for more than one hour without changing position. She testified that a job as a dental assistant required both standing and sitting, although she said that more time was spent standing than sitting on a typical day. Her position as a retail sales clerk had required her to stand; however, she explained that she had worked only part time and that she had usually worked only a few hours per day.

The mother explained that her current husband provided health insurance for the children through a family-coverage plan provided by his employer. Her current husband testified that he paid $409.50 per month as a health-insurance premium for coverage for him, the mother, his child from a previous relationship, and the children. Both the mother and her current husband testified that the father had not contributed support for the children and that the father had had no contact with the children.

The father testified that he had not had contact with the children since the entry of the Canadian judgment because that judgment had not provided him visitation rights and because he was wary of going to Canada lest he be charged with failing to support the children. He did not explain why he had not had contact with the children before the entry of the Canadian judgment. He admitted that he had never provided child support for the children. The father had earned $69,000 in 2009 but had earned only $40,000 in 2010; he explained that the defense contractor for which he had worked had been relocated and that he had been forced to take a less lucrative position with another contractor. The father’s income affidavit indicates that he earns $4,151.33 per month and that he also receives $656 per month in military disability benefits for a total monthly income of $4,807.33.

The mother first takes issue with the trial court’s failure to include within its child-support-obligation calculation the amount of the health-insurance premium paid by her current husband for health-insurance coverage for the children and the rest of his family. Rule 32, Ala. R. Jud. Admin., governs the determination of child support. Thomas v. Norman, 766 So.2d 857, 859 (Ala.Civ.App.2000). That rule provides that health-insurance coverage shall be ordered if it is available to either parent at a reasonable cost. Rule 32(B)(7)(a). Rule 32(b)(7)(d) and (e) further explain how the premium for health insurance is to be applied in the calculation of child support:

“(d) The actual cost of a premium to provide health-insurance benefits for the children shall be added to the ‘basic child-support obligation’ and shall be divided between the parents in proportion to their adjusted gross income in the percentages indicated on the Child-Support Guidelines form (Form CS-42).
“(e) The amount to be added to the ‘basic child-support obligation’ shall be the actual amount of the total insurance 'premium for family/dependent coverage, regardless of whether all children covered are in the same family.”

(Emphasis added.)

Although the trial court originally added the entire $409.50 health-insurance premium to the basic child-support obligation as required by Rule 32(B)(7)(d) and (e), it amended its judgment on the father’s post-judgment motion to completely remove the health-insurance premium from the child-support-obligation calculation. In doing so, the trial court specifically stated that it found that including the health-insurance premium in the calculation of the father’s child-support obligation would be “manifestly unjust and inequitable” because it would result in the father’s paying 79.27% of the health-insurance premium covering not only his two children but also the mother, her current husband, and his child from an earlier relationship. Thus, it appears that the trial court determined that, based on the facts of this case, it should deviate from the child-support guidelines in its determination of the proper child-support obligation for the father. See Rule 32(A)(ii).

Under Rule 32(A), a trial court may choose not to apply the child-support guidelines if it makes a written finding on the record that “application of the guidelines would be unjust or inappropriate” and if the finding is supported by “[a] determination by the court, based upon evidence presented in court and stating the reasons therefor, that application of the guidelines would be manifestly unjust or inequitable.” Rule 32(A)(ii). As we explained in DeYoung v. DeYoung, 853 So.2d 967, 970 (Ala.Civ.App.2002):

“When the court determines that the application of the guidelines would be manifestly unjust or inequitable and then deviates from those guidelines in setting a support obligation, the court must make the findings required by Rule 32(A)(ii), Ala. R. Jud. Admin. M.S.H. v. C.A.H., [829 So.2d 164 (Ala.Civ.App.2002)] (citing Thomas [v. Norman ], 766 So.2d [857,] 859 [ (Ala.Civ.App.2000) ]). Rule 32(A), Ala. R. Jud. Admin., allows the trial court to deviate from the guidelines so long as the deviation is based on ‘evidence presented in court’ contained in a ‘written finding on the record.’ In other words, the subsection requires the trial court to state a reason justifying its deviation from the guidelines.”

As we have explained before, in order to justify a deviation from the guidelines, the record must contain factual support for the conclusion that application of the guidelines would be unjust or inequitable under the circumstances facing the obligor. Preda v. Preda, 877 So.2d 617, 622 (Ala.Civ.App.2003). In Preda, we reversed the trial court’s judgment ordering child support in an amount less than that resulting from application of the guidelines because the father in that case had not demonstrated that he was unable to afford the child-support obligation that resulted from the application of the guidelines. Preda, 877 So.2d at 622.

Although we understand the trial court’s concern over the father’s being required to pay a large percentage of the health-insurance premium that covers three other people and not just the children, it is apparent from the language used in Rule 32(B)(7)(e) that the guidelines recognize that family or dependent coverage could well include children who are not the subject of the child-support obligation. To determine that the application of Rule 32(B)(7)(e) is unjust or inequitable simply because the health-insurance premium secures insurance covering persons other than the obligor’s children would be to ignore the fact that the rule specifically acknowledges this issue yet still requires that the “actual amount of the total insurance premium” be used in the child-support-obligation calculation. Because the record does not reflect that the father requested that he be completely relieved from providing health-insurance coverage for his children and because the evidence at trial does not support the conclusion that the amount of child support required under the guidelines would affect the father’s ability to meet his normal expenses or otherwise unjustly burden him, we cannot agree that the trial court had a sufficient factual basis to support a deviation from the guidelines in the present case. On remand, however, the trial court may wish to consider the father’s request that he, and not the mother, be responsible for securing health insurance covering the children.

The mother next argues that the trial court improperly imputed income to her despite her testimony that she is unable to work because she suffers from scoliosis. As we have explained,

“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.’
“In cases of voluntary underemployment, the amount of income to be imputed to the parent is a question of fact to be decided based on the evidence presented to the trial court. See G.B. v. J.H., [915 So.2d 570 (Ala.Civ.App.2005) ]; see also 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)) (‘The trial court is afforded the discretion to impute income to a parent for the purpose of determining child support, and 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.” ’). We may reverse a judgment imputing income to a voluntarily underemployed parent that is based on ore tenus evidence only if that judgment is so unsupported by the evidence as to be plainly and palpably wrong. G.B. v. J.H., 915 So.2d at 575.”

Stone v. Stone, 26 So.3d 1228, 1230-31 (Ala.Civ.App.2009)(footnote omitted).

The trial court imputed a monthly income of $1,257 to the mother. Although the mother’s testimony at trial was that she was unable to work, she testified that, in the past, she had worked as a dental assistant earning as much as $30,000 per year and as a retail sales clerk earning at least $700 per month. The mother said that she could not stand for more than 30 minutes or sit in 1 position for more than an hour without discomfort. The mother admitted that a dental assistant would sit and stand alternately throughout the day, depending on the task he or she was performing. She also admitted that her job as a retail sales clerk had required her to stand at least a few hours per day. The trial court observed the mother during her testimony, and it alone was permitted to judge her credibility regarding her testimony that she lacked the ability to work. G.B. v. J.H., 915 So.2d 570, 575 (Ala.Civ.App.2005). Thus, we cannot conclude that the trial court’s decision to impute income to the mother was not supported by the evidence.

The mother’s final arguments concern the trial court’s award of retroactive child support under Ala.Code 1975, § 30-3-110 et seq. The mother first complains that the trial court erred in failing to award retroactive support back to the date of the children’s birth instead of to the date that the father’s paternity was established. She further contends that the trial court did not use the correct income figures to determine the amount of retroactive child support the father owed.

The most comprehensive discussion of the retroactive-child-support statutes is found in P.Y.W. v. G.U.W., 858 So.2d 265, 267-68 (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. State ex rel. Shellhouse v. Bentley, 666 So.2d 517, 518 (Ala.Civ.App.1995); Ex parte University of South Alabama, 541 So.2d 535, 537 (Ala.1989). The Alabama Legislature, recognizing this duty, created a cause of action specifically for retroactive child support. See Ala.Code 1975, §§ 30-3-110 through -115.
“Even before §§ 30-3-110 through -115 became effective in March 1994, the Alabama Legislature had made it clear that retroactive child support is favored in order to ensure that minor children receive the support that is their due. Section 26-17-9(d), Ala.Code 1975, provided, and still provides, in pertinent part, that a child’s mother may file ‘[a] complaint for nonsupport of [the] child ... alleging sufficient facts that the defendant owes a duty of support, provided, that support payments have not been ordered previously pursuant to a decree of divorce.’ Moreover, § 26-17-8, Ala. Code 1975, specifically provided before the enactment of §§ 30-3-110 through -115, and still provides, that a court may order a father to pay retroactive child support for a period of two years prior to the filing of a complaint, or the birth of the child, whichever is the shorter time period.
“In Brown v. Brown, 719 So.2d 228 (Ala.Civ.App.1998), this court addressed the issue whether, apart from an action brought under §§ 30-3-110 through -115, Alabama law provided for the award of retroactive child support. In a case in which the complaint was filed ‘shortly after’ the parties separated, 719 So.2d at 229, this court answered that question as follows:
“ ‘Given this state’s policy and law requiring a parent to support a minor child, ... a trial court may, in its discretion, award child support retroactive to the filing of the complaint for divorce where the trial court has failed to enter a pendente lite child support order for the period in which the parent had a duty to support the child but failed to provide that support.’
“Brown, 719 So.2d at 232.
“As noted, the claim for retroactive child support in Brown was not one brought pursuant to §§ 30-3-110 through -115. Moreover, we note that the trial court’s judgment in Brown was entered approximately two years after the parties’ separation and that the only issue in that case was whether retroactive child support was due for the one-year period immediately before trial, a period during which the husband paid no child support. During the first 12 months following the parties’ separation, the father had voluntarily paid substantial child support. Id. No issue was presented in Brown as to the possibility of a retroactive award of child support for any period ■ before the filing of the • complaint.
“In the present case, the mother argues that §§ 30-3-110 through -115 ‘show an intent by the Legislature to bolster the rights of minors to [child] support which had previously been guaranteed by earlier statutes [such as §§ 26-17-8 and 26-17-9] and the common law.’ We agree. Section 30-3-110 provides:
“ ‘There is hereby created a civil action to establish an order of retroactive support which may be brought against a non-supporting parent who has a duty to support as the legal parent of a child or children but has failed to provide support. The action may be brought by the parent or guardian with physical or legal custody who is providing the actual care and support for the child or may be brought by the Department of Human Resources pursuant to the provisions of [Ala.Code 1975,] Section 38-10-1 et seq. An action under this section can be brought only if support has not previously been ordered pursuant to a divorce or other action in this or any other jurisdiction.’
“Section 30-3-114, Ala.Code 1975, provides:
“ ‘The order of retroactive support shall be a sum certain judgment and may cover all periods in which the non-supporting parent failed to provide support. For all time periods in which support is requested, the court shall consider the needs of the child or children and the ability of the parents to respond to these needs, and shall determine the amount of support due for each period by application of the child support guidelines found in Rule 32 of the Alabama Rules of Judicial Administration based upon the circumstances during the time period for which support is sought. If the judgment for retroactive support includes support due for a period of time in which aid was paid by the Department of Human Resources and an assignment of support rights thereby exists under Section 38 — 10—4[, Ala.Code 1975,] and Section 38-10-5, [Ala.Code 1975,] the department shall be entitled to recover any support due the department under Section 38-10-6[, Ala. Code 1975].’ ”

However, we need not consider the mother’s argument that the trial court should have awarded retroactive child support from the date of the children’s birth in March 2005 because the record contains no evidence regarding the father’s income before 2009 upon which the trial court could have calculated and entered such a retroactive child-support order.

The mother’s argument that the trial court used incorrect income figures to calculate the retroactive child support awarded to her is well taken. Section 30-3-114 requires that a trial court apply Rule 32 when computing retroactive child support; that section reads, in pertinent part:

“The order of retroactive support shall be a sum certain judgment and may cover all periods in which the nonsupporting parent failed to provide support. For all time periods in which support is requested, the court shall consider the needs of the child or children and the ability of the parents to respond to these needs, and shall determine the amount of support due for each period by application of the child support guidelines found in Rule 32 of the Alabama Rules of Judicial Administration based upon the circumstances during the time period for which support is sought.”

The father’s income in 2009 was more than the amount he earned at the time of trial; however, the trial court used the father’s income at the time of trial to determine the amount of retroactive child support due instead of using the father’s 2009 income in establishing retroactive support for the period between April 23, 2009, and December 2009. In doing so, the trial court failed to comply with Rule 32 and therefore erred. Accordingly, the trial court’s judgment, insofar as it awarded retroactive child support, is reversed, and the cause is remanded for the trial court to properly compute the retroactive child support due for the period between April 23, 2009, and December 2009.

In conclusion, the trial court lacked subject-matter jurisdiction under the UC-CJEA to enter a child-custody determination respecting the children. Insofar as the mother appeals from that portion of the judgment, her appeal, having been taken from a void judgment, is dismissed. That portion of the trial court’s judgment establishing the father’s child-support obligation is reversed because of the trial court’s failure to include within its computations the entire amount of the health-insurance premium that covers the parties’ children. We also reverse the trial court’s award of retroactive child support because the trial court erred by improperly calculating the amount of support due under § 30-3-114. The cause is therefore remanded to the trial court with instructions to vacate its child-custody determination and to recalculate both its prospective and its retroactive child-support awards.

The mother’s request for an attorney fee on appeal is denied.

APPEAL DISMISSED IN PART; REVERSED AND REMANDED WITH INSTRUCTIONS.

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

MOORE, J., concurs specially, with writing.

BRYAN, J., concurs in the result only, with writing.

MOORE, Judge,

concurring specially.

With regard to that part of the main opinion addressing the trial court’s failure to include the health-insurance premiums in the calculation of the father’s child-support obligation, I concur only because the father did not ask this court to overrule past decisions on that issue such as Brown v. Brown, 719 So.2d 228 (Ala.Civ. App.1998) (holding that the trial court had not erred in including the cost of health insurance covering both the custodial parent and the parties’ child in determining the noncustodial parent’s child-support obligation), and Bertram v. Doss, 709 So.2d 1274, 1276-77 (Ala.Civ.App.1998) (holding that the trial court had erred in including only the difference between the cost of single health-insurance coverage and family health-insurance coverage in determining the noncustodial parent’s child-support obligation). I believe the decisions in those cases have misconstrued Rule 32, Ala. R. Jud. Admin., and that it is absurd to include premiums for health insurance that covers a custodial parent in calculating the noncustodial parent’s “child-support obligation.”

BRYAN, Judge,

concurring in the result only.

Regarding the main opinion, I concur in the result only. However, I agree with the sentiments expressed by Judge Moore in his special writing.

      . The mother married Hein in December 2009, and the mother and the children moved to the state of New York, where they resided at the time of the January 2011 trial.

      . A "child custody proceeding’’ is defined as
      “[a] proceeding in a court in which legal custody, physical custody, or visitation with respect to a child is an issue. The term includes a proceeding for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence, in which the issue may appear. The term does not include a court proceeding involving juvenile delinquency, contractual emancipation, adoption, or enforcement under Article 3 [§§ 30-3B-301 through 30-3B-314].”
      § 30-3B-102(4).

      . A “child custody determination” is defined as
      "[a] judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child. The term includes a permanent, temporary, initial, and modification order. The term does not include an order relating to child support or other monetary obligation of an individual.”
      § 30-3B-102(3).

      . "Home state” is defined in § 30-3B-102(7) as
      "[t]he state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of the child or any of the mentioned persons is part of the period.”

      . Our review of the record reveals no evidence concerning the father’s income for the years between the birth of the children in 2005 and 2009. The income information contained in the record regarding the father re-fleets that he earned $4,807 per month at the time of trial and that he had earned $69,000 in 2009.


author: THOMPSON, Presiding Judge.

text:
    MAXIM HEALTHCARE SERVICES, INC. v. Debra Taylor FREEMAN.
    2101205.
    Court of Civil Appeals of Alabama.
    April 13, 2012.

      Anthony N. Fox and Robert M. Ronn-lund of Scott, Sullivan, Streetman and Fox, P.C., Birmingham, for appellant.
    Dannie Ray Davis of Davis Law Firm, LLC, Hueytown, for appellee.
   THOMPSON, Presiding Judge.

Maxim Healthcare Services, Inc. (“Maxim”), appeals from the judgment of the Jefferson Circuit Court in favor of Debra Taylor Freeman in her action against Maxim under the Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975 (“the Act”). For the reasons set forth herein, we affirm.

In 2004, Freeman, a licensed practical nurse, began working for Maxim, a nursing-referral agency. As part of her employment with Maxim, she was referred to various job sites and facilities to work. On December 24, 2008, Freeman was working at a rehabilitation facility in Tuscaloosa to which Maxim had referred her. While she was lifting a patient from a toilet to place her in a wheelchair, the wheelchair moved, causing Freeman to overextend herself while she was attempting to place the patient into the wheelchair. As she did so, Freeman felt a burning sensation in her lower back that extended into her hips. A few minutes later, the pain in her back and hips became excruciating and radiated into her legs, making it difficult for her to walk. After completing her shift, she went to the emergency room where she complained of back pain and hip pain. At the emergency room, she received multiple injections of pain relievers and steroids and was given pain medication to take orally. The doctor at the emergency room told her to follow up with an orthopedic doctor.

On April 17, 2009, Freeman filed an action against Maxim seeking benefits and compensation pursuant to the Act. On July 11, 2011, the trial court held a bench trial in the action. At the beginning of the trial, the parties stipulated, among other things, that Freeman received an injury to her left hip and left leg arising out of and in the course of her employment with Maxim and that Freeman gave proper notice of her injury. The parties indicated that there was a dispute as to whether Freeman’s back problems were related to the accident.

The medical records submitted into evidence at the trial revealed the following pertinent information. Freeman was treated by Dr. William Lupinacci on January 15, 2009. At that appointment, Freeman indicated that her symptoms were improving. He diagnosed her with a back strain and told her to return for evaluation.

A treatment note from Dr. Lupinacci from January 22, 2009, indicated that Freeman was continuing to experience back pain and that she was having to take time off work due to the pain. He prescribed her 2 weeks of physical therapy and limited her to lifting no more than 20 pounds.

A note from Dr. Lupinacci from February 2, 2009, indicated that Freeman’s pain had not improved and that she was experiencing radicular pain into her left leg. He diagnosed her with a lumbar strain and lumbar radiculopathy and continued her work restriction regarding lifting.

Dr. Andrew Cordover began treating Freeman in February 2009. A medical note from an appointment Freeman had with Dr. Cordover on February 18, 2009, indicated that Freeman’s chief complaints were back pain, left-hip pain, and left-leg pain. He ordered an MRI of her lower back and left hip, and he limited her to light work with no repetitive bending or twisting at her waist and no squatting or kneeling. The MRI of Freeman’s left hip indicated a possible labral tear*. The MRI of Freeman’s lower back revealed mild degenerative disk bulges at multiple levels without spinal stenosis or neural compression.

In a work-status form prepared by Dr. Cordover and dated March 25, 2009, Dr. Cordover continued the same work restrictions he had previously assigned to Freeman, and he indicated that he had referred her to Dr. Jeffrey Cusmariu, another physician in the same practice as Dr. Cord-over.

A medical note from Dr. Cusmariu dated April 10, 2009, indicated that Dr. Cusmariu kept Freeman’s prior work restrictions in place and added that she should be sitting about 50% of her shift with no climbing stairs or ladders. He ordered a second MRI of her left hip, the results of which again indicated a labral tear.

A medical note from Dr. Cusmariu dated April 21, 2009, indicated that Freeman was continuing to complain of pain in her lower back and hip that radiated into her left leg. After reviewing the MRI of her left hip and performing a physical examination, Dr. Cusmariu diagnosed Freeman with left-hip pain, left-hip greater trochanteric bursitis with left sacroiliac joint dysfunction, mild lumbar degenerative disk disease, and a possible left-hip labral tear. Dr. Cusmariu indicated that he did not believe that a labral tear was the cause of Freeman’s pain. He ordered more physical therapy for Freeman and indicated that, if that did not resolve her pain, he would refer her back to Dr. Cordover for further management of her back pain. He kept the same work restrictions in place.

A medical note from Dr. Cusmariu dated June 16, 2009, indicated that Freeman had obtained significant relief from her pain symptoms following an injection into her sacroiliac joint. He reduced her work restrictions to no sustained squatting and no repetitive bending at the waist. However, in a medical note dated July 14, 2009, Dr. Cusmariu indicated that Freeman’s pain had increased since he had last seen her. He indicated that her job had required her to drive long distances and that that, along with her having to help a hospice patient, had exacerbated her pain. He indicated that the pain she was experiencing did not originate with her left hip. He again restricted her to light-duty work with no lifting more than 50 pounds, no repetitive bending at the waist, and no squatting or kneeling, and he referred her to Dr. Michelle Turnley, a physiatrist who practiced with Dr. Cordover and him. On a separate form, Dr. Cusmariu indicated that Freeman was limited to medium-duty work rather than light-duty work.

On August 12, 2009, Dr. Cusmariu indicated in a form that he filled out for what appears to be Maxim’s workers’ compensation insurance carrier that his referral of Freeman to a physiatrist was related to the December 24, 2008, accident because Freeman had not experienced pain before the accident but had been experiencing pain since the accident. He indicated that the referral was not related to a preexisting degenerative condition and that she could not return to her preinjury employment position.

A medical note from Dr. Turnley dated September 2, 2009, indicated that Freeman was continuing to experience pain and that she had swelling in her left leg that, according to Freeman, had been present since the December 2008 accident. Dr. Turnley diagnosed Freeman with persistent low-back and leg pain, and she indicated that she thought Freeman was experiencing sciatica. Dr. Turnley administered a trigger-point injection to Freeman and prescribed medication to her. She limited Freeman to medium-duty work with no repetitive bending at the waist and no squatting or kneeling.

In a medical note dated October 14, 2009, Dr. Turnley indicated that Freeman had right-sided sciatica and that she did not think that lumbar surgery was needed. In her deposition, which was admitted at trial, Dr. Turnley indicated that some of Freeman’s sciatica was preexisting but that she was “sure” that some of the sciatica was related to Freeman’s December 24, 2008, accident. Dr. Turnley noted that Freeman was “extremely tender” near the lower lumbar region of her back, near her sacroiliac joint, and near her sciatic notch. She diagnosed Freeman with sciatic neuralgia and administered more trigger-point injections. Freeman received additional trigger-point injections during her appointment with Dr. Turnley on November 4, 2009.

On December 14, 2009, Freeman underwent a functional-capacity evaluation (“FCE”) as ordered by Dr. Turnley. Several tests were administered to her to determine whether she was performing with submaximal effort; those tests indicated that she was not. Several tests were administered to Freeman in an attempt to determine how much she could lift and carry. All of those tests except one were terminated due to pain Freeman experienced. Those tests indicated that Freeman could: carry 40 pounds, lift 20 pounds from the floor to her waist, occasionally lift 60 pounds from her waist to shoulder height, frequently lift 40 pounds from her waist to shoulder height, occasionally lift 40 pounds from the floor to shoulder height, and frequently lift 10 pounds from the floor to shoulder height. After the physical portion of the FCE, Freeman was administered a questionnaire. She became offended by the questions contained in the questionnaire and did not complete it.

On December 28, 2009, Dr. Turnley, after reviewing the results of the FCE, assigned Freeman a Wo permanent-partial-impairment rating and released her to return to work without restrictions. She stated in her deposition that she did not believe that Freeman had any residual disability or impairment as a result of her work-related accident.

The deposition of Dr. Bruce Pava, Freeman’s personal physician, was entered into evidence. Dr. Pava testified that he began seeing Freeman in April 2004 for treatment related to injuries she had received in an automobile accident. He noted that she presented in 2004 with a history of mild chronic back pain, but he also noted that she was not complaining of back pain at that time. Dr. Pava stated that he saw her on several occasions thereafter and that, before her December 24, 2008, accident, she did not complain of pain in her back.

Dr. Pava testified that he saw Freeman on January 26, 2009, and that she complained of back pain since the accident. Dr. Pava’s testimony indicated that he saw Freeman at least 10 more times before trial and that she consistently complained of pain in her lower back to him. At an appointment in September 2009, he noted that she had swelling in her left leg that had been present for the previous nine months. At an appointment in October 2009, he ordered an MRI of Freeman’s lower back; the MRI revealed mild spinal stenosis, generalized disk disease, and facet changing.

In May 2011, Dr. Pava admitted Freeman to the hospital for severe low-back pain and incontinence brought on by that pain. At the hospital, she was administered a nerve block that relieved her pain. She was discharged after six days.

On July 19, 2010, at the request of Freeman’s attorney, Dr. Pava completed a form in which he listed a number of restrictions to Freeman’s ability to work, including: occasional lifting of 20 pounds; frequent lifting of less than 10 pounds; standing or walking less than 2 hours in an 8-hour work day; periodically alternating sitting and standing; limited pushing and pulling with her arms and legs; only occasional climbing ramps and stairs, balancing, stooping, kneeling, and crouching; no crawling; and limited reaching with her arms. Dr. Pava opined that Freeman was unable to do the work of a licensed practical nurse because of the problem with her back. He indicated that he did not perform an FCE on Freeman and that he had not seen the results of the FCE that had been performed on her. Dr. Pava opined that Freeman’s back pain was related to her December 24, 2008, accident.

Two reports prepared by Russ Gurley, a licensed professional counselor, were submitted at trial. In the first report, Gurley indicated that he had performed a vocational evaluation of Freeman, and he opined, based on Dr. Turnley’s opinion that Freeman could return to work without restrictions, that Freeman had a 0% vocational-disability rating. Later, Gurley was provided with Dr. Pava’s opinions as to Freeman’s work restrictions. In his second report, Gurley indicated, based on Dr. Pava’s opinions, that Freeman would have a vocational-disability rating of 65% to 75%.

A vocational-disability report prepared on August 4, 2010, by Michael Staff, a rehabilitation counselor, was submitted into evidence. In that report, Staff indicated that he had reviewed Freeman’s medical records, as well as the various work restrictions that had been placed on Freeman. Staff opined that Freeman’s vocational disability was 69% based on her low-back injury.

Freeman testified that she last worked for Maxim in April 2009 and that, from the time of the accident until she left her employment with Maxim, she had been limited to light-duty work. She stated that, since her employment with Maxim ended, she had worked at a rehabilitation facility for a short period; she stopped working there because she was unable to perform the full duties of that job. Freeman also stated that she had worked for the United States Census Bureau for a short period during the 2010 census. She testified that she had also worked as a home-health aide for a short period but that she could not perform that job after her patients became bedridden.

Freeman testified that since Dr. Turnley had released her from her care, Dr. Pava had continued to treat her for pain in her lower back, leg, and hip. She testified that, since the December 24, 2008, accident, her pain had become progressively worse. Freeman testified as follows regarding a normal day for her:

“I get up. Hopefully, I can get to the bathroom by myself; sometimes I need assistance. I can prepare a light breakfast. I can load the top part of the dishwasher; sometimes my husband has to do that. You know, he does most of the heavy stuff in the house like sweeping and mopping, putting clothes in and out of the dryer, changing the beds. I do dusting, light meals. He cleans the bathtub.”

Freeman testified that she sometimes drives but that someone usually has to go with her to the grocery store to load and unload the groceries. She stated that, given her physical condition, she was not able to perform any of the jobs she had performed in the past. She testified that, before her accident, she had been able to fully perform the duties of her job with Maxim.

On August 2, 2011, the trial court entered a detailed judgment in which it found that Freeman suffered injuries resulting from an accident arising out of and in the course of her employment, that the injuries she sustained as a result of that accident were to her left hip and her left leg, and that the accident caused the chronic pain in her lower back or aggravated a preexisting condition in her lower back. The court found that Freeman was entitled to temporary-total-disability benefits, and, because her injuries involved an unscheduled member of her body, it found that she was entitled to permanent-partial-disability benefits for a period of 300 weeks, less the 12 weeks of temporary-total-disability benefits she had received. The trial court found that Freeman suffered a vocational disability of 69%. The trial court made an award to Freeman in accordance with those findings. Maxim appeals.

Section 25-5-81(e), Ala.Code 1975, provides the standard by which this court reviews appeals in cases arising under the Act. That section provides:

“(e) Review. From an order or judgment, any aggrieved party may, within 42 days thereafter, appeal to the Court of Civil Appeals and review shall be as in cases reviewed as follows:
“(1) In reviewing the standard of proof set forth herein and other legal issues, review by the Court of Civil Appeals shall be without a presumption of correctness.
“(2) In reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence.”

Discussing this standard, this court wrote in Reeves Rubber, Inc. v. Wallace, 912 So.2d 274 (Ala.Civ.App.2005):

“When this court reviews a trial court’s factual findings in a workers’ compensation case, those findings will not be reversed if they are supported by substantial evidence. § 25-5-81 (e)(2), Ala.Code 1975. Substantial evidence is ‘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.’ West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). Further, this court reviews 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 (Ala.1996). This court has also concluded: ‘The [1992 Workers’ Compensation] Act did not alter the rule that this court does not weigh the evidence before the trial court.’ Edwards v. Jesse Stutts, Inc., 655 So.2d 1012, 1014 (Ala.Civ.App.1995). However, our review as to purely legal issues is without a presumption of correctness. See Holy Family Catholic School v. Boley, 847 So.2d 371, 374 (Ala.Civ.App.2002) (citing § 25-5-81(e)(1), Ala.Code 1975).”

912 So.2d at 279.

Maxim contends that Freeman failed to prove that her December 2008 accident was the medical cause of the symptoms she experienced in her lower back. It points out that Dr. Turnley opined that there was not a causal relationship between Freeman’s December 2008 accident and her asserted back injury. It argues that Dr. Pava “admitted his lack of qualifications to disagree with [Freeman’s] authorized treating physician’s opinions, and deferred to her opinions and conclusions on that issue.” It also argues that Dr. Pava “deferred” to the FCE, which Maxim describes as having demonstrated that Freeman could perform all of her job functions as a licensed practical nurse with Maxim.

In Pair v. Jack’s Family Restaurants, Inc., 765 So.2d 678 (Ala.Civ.App.2000), this court described medical causation in the following manner:

“For an injury to be compensable, it must be ‘caused by an accident arising out of and in the course of the employee’s employment. § 25-5-51, Ala.Code 1975. The phrase ‘arising out of an employee’s employment requires a causal connection between the injury and the employment. Dunlop Tire & Rubber Co. v. Pettus, 623 So.2d 313 (Ala.Civ.App.1993). The phrase ‘in the course of the employee’s employment refers to the time, place, and circumstances under which the accident occurred. Id. In accidental cases, i.e., those involving a sudden and traumatic event, an employee must produce substantial evidence tending to show that the alleged accident occurred and must also establish medical causation by showing that the accident caused or was a contributing cause of the injury. Ex parte Trinity Indus., Inc., 680 So.2d at 266 n. 3. Medical causation may be found by the trial court without testimony from medical doctors. Ex parte Price, 555 So.2d 1060 (Ala.1989). The totality of the evidence, including both lay and expert testimony, may satisfy a showing of medical causation. U.S. Steel, A Division of USX Corp. v. Nelson, 634 So.2d 134 (Ala.Civ.App.1993).”

765 So.2d at 681.

Reviewing the totality of the evidence in the present case, we conclude that there was substantial evidence indicating that Freeman’s accident caused or contributed to her back pain. Her testimony was that she felt a sharp pain in her back immediately upon overextending herself as she attempted to seat the patient she was holding in a wheelchair. She immediately sought treatment for the pain, and her medical records indicate that she consistently complained of moderate to severe lower-back pain after the accident. Although the medical records indicate that Freeman had been diagnosed with chronic mild back pain before the accident, the evidence indicates that Freeman did not complain of lower-back pain at all during the four years that Dr. Pava treated her before the December 2008 accident and that she was fully able to perform her job at Maxim before the accident. The evidence thus reflects that the back pain Freeman experienced was substantially more severe and, for the first time, debilitating after the accident. The evidence of a substantial change in Freeman’s sympto-mology and ability to work provides some support for a finding of medical causation in this case. See Terry A. Moore, Alabama Workers’ Compensation § 7:24 (1998).

In addition, Dr. Pava testified that in his opinion, based on a reasonable degree of medical certainty, Freeman’s back pain was related to the December 2008 accident. Although Dr. Pava also testified that “to the extent that opinions [had] previously been offered by physicians who are licensed to practice medicine in either physical medicine, neurosurgery or orthopedic surgery,” he would defer to those opinions, he was never presented with a specific opinion contrary to his own regarding medical causation and asked whether he rescinded his own opinion regarding medical causation. At most, Dr. Pava’s testimony of general deference to doctors in particular specialties goes merely to the weight of his testimony, not to its admissibility. Additionally, although Dr. Pava testified that he did not have a basis to disagree with the results of any FCE that may have been performed on Freeman, Dr. Pava was not specifically asked about the results of the FCE that was performed on Freeman, and he later testified that he stood by the restrictions he had placed on Freeman regarding her ability to perform work tasks such as bending and lifting.

Maxim cites three cases in support of its contention that substantial evidence of medical causation is lacking in this case: Ex parte Southern Energy Homes, Inc., 873 So.2d 1116 (Ala.2003); Jackson Landscaping, Inc. v. Hooks, 844 So.2d 1267 (Ala.Civ.App.2002); and Valtex, Inc. v. Brown, 897 So.2d 332 (Ala.Civ.App.2004). As discussed below, those cases do not support Maxim’s contention.

In Ex parte Southern Energy Homes, Inc., 873 So.2d 1116 (Ala.2003), our supreme court concluded that a worker’s own testimony did not, standing alone, constitute substantial evidence indicating that her back injury was related to an accident at work. In reaching that conclusion, however, the supreme court relied on two aspects of the evidence before it that are not present in the present case. First, the supreme court noted that “[n]one of the doctors who treated [the worker] stated with any degree of certainty that [the worker’s back condition was due to the alleged workplace injury.” 873 So.2d at 1122. In the present case, as previously discussed, Dr. Pava testified to such a link. Second, the supreme court noted that the records of the worker’s doctor for the nine months he had treated her after the alleged accident did not mention the accident or that the worker had complained of back pain during that period. Id. In the present case, however, Freeman’s medical records indicate that she immediately complained of pain in her back after her December 2008 accident, and her medical records document that her complaints of back pain were consistent throughout the course of her treatment.

In Jackson Landscaping, Inc. v. Hooks, 844 So.2d 1267 (Ala.Civ.App.2002), the injured worker testified that he did not begin to experience pain in his back until 16 months after the accident that he alleged had caused his back injury. 844 So.2d at 1270. Furthermore, one of the doctors who treated the worker testified that the worker’s back injury was not related to his on-the-job accident, and the other doctor who treated the worker testified only that there was a “probability” that there “could have been” a causal relationship between the accident and the back injury. 844 So.2d at 1271. In the present case, Freeman complained of pain in her back immediately after the December 24, 2008, accident, and she consistently complained of back pain throughout her treatment. In addition, unlike the doctors who treated the worker in Jackson Landscaping, one of Freeman’s physicians in the present case, Dr. Pava, testified that, in his opinion, Freeman’s back pain was related to her accident.

In Valtex, Inc. v. Brown, 897 So.2d 832 (Ala.Civ.App.2004), this court reversed a judgment awarding benefits to a worker based on her complaints of head, shoulder, neck, and arm aches because of a lack of evidence of medical causation. In that case, because there was no evidence indicating that the worker experienced a sudden or traumatic event that could have served as the cause of her alleged injuries, the worker was required to produce clear and convincing evidence of medical causation. 897 So.2d at 334. Although the record contained the results of some diagnostic testing that revealed mild degenerative changes and a bone spur in the worker’s neck, the only evidence relating her pain to her employment was her testimony that she did not begin to experience pain until working for the employer. 897 So.2d at 337. The worker’s treating physician testified that he could not say with any degree of medical certainty what the cause of her symptoms were. 897 So.2d at 334. This court concluded that the worker’s testimony alone was not sufficient to prove medical causation. 897 So.2d at 337.

Unlike in Valtex, the present case involves a sudden or traumatic event, i.e., Freeman’s December 2008 accident. Not only does Freeman’s testimony regarding her condition before and after the December 2008 accident constitute substantial evidence of a causal connection between the accident and her back pain, see Moore, Alabama Workers’ Compensation § 7:24, supra, Dr. Pava’s deposition testimony likewise supports a finding of medical causation. Thus, the holding in Valtex is in-apposite to the present case.

In a single paragraph at the end of its brief, Maxim also contends that insufficient evidence supported the trial court’s finding of a 69% vocational disability by Freeman. We note that Maxim has failed to support that argument with citation to any legal authority, which violates Rule 28(a)(10), Ala. R. Civ. P. See City of Birmingham v. Business Realty Inv. Co., 722 So.2d 747, 752 (Ala.1998) (“When an appellant fails to cite any authority for an argument on a particular issue, this Court may affirm the judgment as to that issue, for it is neither this Court’s duty nor its function to perform an appellant’s legal research.”).

We also find Maxim’s argument to be unpersuasive. Dr. Pava, who, by the time of trial, had treated Freeman for over two years for her injuries arising out of the December 2008 accident, assigned limitations to her ability to engage in particular work activities. Those limitations formed, at least in part, the basis of the two opinions of the vocational counselors, one of whom opined that Freeman had a vocational loss of 69% and the other of whom opined that she had a vocational loss of 65% to 75%. Maxim points out that Dr. Pava testified that he had no basis to dispute the findings of any FCE that had been performed on Freeman, but, as previously noted, he was not confronted with the findings of the FCE and he testified specifically that he stood by the restrictions he had assigned Freeman. Maxim has not argued, nor has it cited any legal authority for the proposition, that the trial court was required to reject Dr. Pava’s testimony regarding Freeman’s work limitations because of what it refers to as his “deference” to the FCE that was performed on Freeman.

Based on the foregoing, we conclude that Maxim has failed to demonstrate a basis on which to reverse the trial court’s judgment. As a result, the judgment is affirmed.

AFFIRMED.

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