author: BRYAN, Judge.

text:
    David A. LADDEN v. Judith H. LADDEN.
    2081010.
    Court of Civil Appeals of Alabama.
    April 16, 2010.

      Bruce L. Gordon and Jason E. Gilmore of Gordon, Dana, Knight & Gilmore, L.L.C., Birmingham, for appellant.
    Charles H. Dunn and G.R. Fernambucq of Boyd, Fernambucq, Vincent & Dunn, P.C., Birmingham, for appellee.
   BRYAN, Judge.

David A. Ladden (“the father”) appeals from a judgment of the Jefferson Circuit Court (“the trial court”) insofar as it denied his petition to change custody of the parties’ daughter (“the child”), ordered the father to pay the attorney fees of Judith H. Ladden (“the mother”), and ordered the father to pay a portion of the fees of the child’s guardian ad litem.

Procedural History

The parties were divorced by the trial court in a final judgment entered on June 18, 1998. Pursuant to the parties’ divorce judgment, the mother was awarded “custody and control” of the child and the father was awarded extensive visitation with the child, including on the first, the third, and, when applicable, the fifth weekend of each month. On April 19, 2000, the trial court entered an order that modified the divorce judgment by, among other things, removing restrictions in the divorce judgment that prevented the child’s residence from being outside Jefferson County and altering the father’s visitation schedule so that the father had visitation with the child only on the first and third weekend of each month. The father’s remaining visitation periods, including certain Christian and Jewish holidays, summer visitation, spring-break visitation, birthday visitation, and Father’s Day visitation, remained unchanged.

On May 81, 2007, the father filed a petition to modify the divorce judgment, seeking custody of the child. On December 18, 2007, the mother filed a counter-petition for modification of the divorce judgment, seeking an increased award of child support, modification of the visitation rights of the father, and an award of attorneys fees. In September 2008, the trial court granted the mother’s request to appoint a guardian ad litem on behalf of the child. On April 13, 2009, the trial court conducted an ore tenus hearing on all pending motions. The trial court entered a final judgment on April 30, 2009, that denied the father’s petition to modify custody of the child, reduced the amount of child support payable to the mother, and increased the father’s visitation with the child. The guardian ad litem was awarded fees in the amount of $10,000. Both parties had deposited $2,500 toward the guardian ad litem’s fees, and the father was ordered to pay the remaining balance of the guardian ad litem’s fees, or $5,000. The father was also ordered to pay $25,000 to the mother for her attorney’s fee.

The father filed a motion, pursuant to Rule 59, Ala. R. Civ. P., to alter, amend, or vacate the trial court’s April 30, 2009, judgment. He argued, among other things, that the trial court had erred by using the custody-modification standard set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984), that the trial court had improperly excluded the testimony of his expert witness, that the trial court had erred in ordering him to pay any portion of the guardian ad litem’s fees, and that the trial court had erred in ordering him to pay $25,000 in attorney fees to the mother. On June 15, 2009, the trial court entered an order “amending and extending” the April 30, 2009, judgment. The trial court clarified the father’s visitation rights and clarified that the father’s obligation to pay $5,000 in guardian ad litem fees was in addition to the $2,500 deposit he (and the mother) had already paid toward the guardian ad litem’s fees. The father timely appealed.

Facts

The mother and the child moved from Birmingham, Alabama, to New Orleans, Louisiana, in 1999. The father moved to Oklahoma in 2000, and he moved to Texas in 2003. The father moved to McComb, Mississippi, in 2004 to be closer to the child. The father stated that he could get to New Orleans from his home in McComb in approximately 1 hour and 15 minutes. The parties testified that in 2004 they met with a counselor to reach an agreement about visitation at the direction of a judge in Louisiana. As a result, the father began exercising additional visitation with the child every Wednesday afternoon and on alternating fifth weekends during the months that had a fifth weekend. The father also attended the child’s soccer games in New Orleans even if it was not his weekend for visitation. The mother stated that she had been flexible and liberal with the father’s visitation and that she had allowed the father to visit the child over and beyond what the April 2000 judgment had awarded the father. It was undisputed that the father had maintained regular visitation with the child since the parties’ divorce regardless of where he was living.

The mother and the child relocated to Birmingham in 2005 after Hurricane Katrina made landfall near New Orleans on Monday, August 29, 2005. The mother’s actions on the weekend before Hurricane Katrina made landfall on the Gulf Coast were discussed at length at the final hearing. The mother stated that she left New Orleans on the Friday before the storm made landfall. She drove to Pensacola, Florida, alone, to meet a man that she had become acquainted with on a dating Web site. During that time, the child stayed in New Orleans with the mother’s mother (“the maternal grandmother”), who was approximately 70 years old at that time. The maternal grandmother and the child were forced to evacuate New Orleans on Sunday, August 28, the day before Hurricane Katrina made landfall. The mother left Pensacola at approximately 4:00 a.m. on Sunday morning to return to New Orleans, but she was unable to return to the city due to the evacuation. The mother drove to Atlanta, Georgia, and the child and the maternal grandmother met the mother in Atlanta after spending three nights in Mobile, Alabama. The father stated that, despite repeated efforts to communicate with the mother in the days before Hurricane Katrina made landfall, he could not get in touch with the mother, the child, or the maternal grandmother.

The mother testified that her home in New Orleans had not flooded after Hurricane Katrina but that the home had been unlivable because there was no electricity, no plumbing, and no safe drinking water. The mother also stated that the schools were not open in New Orleans following the storm. The mother and the child stayed with the mother’s family in Atlanta for a short time, and they eventually returned to Birmingham and stayed with friends. The mother informed the father of her intent to relocate to Birmingham with the child, and the father consented. The mother enrolled the child in school in Birmingham, and the child entered the 5th grade.

According to the father, when the mother informed him of her intent to relocate to Birmingham, the mother agreed to meet the father in Meridian, Mississippi, once a month for visitation exchanges because Meridian was approximately halfway between McComb and Birmingham, which are approximately four and one-half hours apart. The mother met the father in Meridian for visitation exchanges until January 2007. Apparently, after January 2007, the child usually flew from Birmingham to New Orleans to visit the father, and on a few occasions the father drove to Birmingham to pick up the child for visitation. However, the father was not able to exercise mid-week visitation with the child because of the distance between Birmingham and McComb. The father also testified that, after May 2007, the mother did not allow him to visit the child on alternating fifth weekends of the months that had a fifth weekend.

The mother testified that she had had two short-term romantic relationships since she had returned to Birmingham in 2005. She stated that the men with whom she had had those relationships had never stayed overnight at the home that she shared with the child. The mother also testified that she had not shared a bedroom with either of her paramours on vacations when the child was present.

At the time of the final hearing, the mother was the Director of Admissions at Highlands Day School in Birmingham and she earned approximately $46,000 a year. The mother stated that she had paid $325,000 for her home in Birmingham in 2005, that she had an outstanding mortgage on her home in the amount of $200,000, and that she had paid cash for renovations on that home in the amount of $300,000. The mother testified that she had approximately $700,000 in various savings and retirement accounts.

The mother married Randy McDonald (“the stepfather”) in December 2007. According to the mother, she did not send wedding invitations to anyone and no one was present for the marriage except the mother and the stepfather. The child was visiting the father in McComb on the day the mother remarried, but the record indicates that the child’s two older siblings “stopped by” the restaurant where the mother and the stepfather had dinner after their nuptials. The mother testified that she and the stepfather hosted a reception to celebrate their marriage on January 1, 2008, and that the child was present on that occasion.

The mother began dating the stepfather in January 2007, and she testified that he frequently came to her home for dinner. The mother denied that the child, more frequently than not, ate dinner alone in the playroom, which the child apparently used as a bedroom. The child testified that, before the mother married the stepfather, she had frequently heard an alarm clock go off at 5:30 in the morning, that she had then heard footsteps, and that she had then heard an automobile drive away. The child alleged that the mother had told her not to tell the father that the stepfather had stayed overnight, but the mother denied this allegation. The mother stated that, on four or five occasions during their courtship, the stepfather had left her home between 4:00 a.m. and 5:00 a.m. after falling asleep on her couch. The mother stated that she and the stepfather, before their marriage, had.never had sexual relations while the child was present and that she and the stepfather had made an effort, for the benefit of the child, to avoid any appearance of impropriety.

The father remarried in 2000, and he and his wife, Shelli (“the stepmother”), had a son on August 29, 2005, the same day that Hurricane Katrina made landfall near New Orleans. The father is a eardiothora-cic and vascular surgeon, and, at the time of the final hearing, he was employed by Southwest Mississippi Regional Medical Center. He was also the director of surgical services, and he earned a salary, including a bonus, of approximately $500,000 a year. He testified that he was on-call whenever he was in Mississippi but that he typically had one weekend a month off of work. He stated that his typical work hours are from 8:00 a.m. until anywhere between 3:00 p.m. and 6:00 p.m.

At the time of the final hearing, the child was 14 years old and she was in the 8th grade. The child’s school records revealed that the child generally made As, Bs, and Cs in school. However, the child made a D in science in the third quarter of the 2008-2009 school year. The mother testified that the child had been tutored in New Orleans and that she had again secured a tutor for the child after they relocated to Birmingham. The mother testified that the father had never shared the expense of a tutor with her.

The mother stated that she had asked the child every night if she needed help with her homework. Although the child apparently told the mother that she did not need help with her homework, the mother insisted on helping the child. The mother also regularly contacted the child’s teachers about her performance. The mother stated that the stepfather is a science teacher, that he had also helped the child with her homework, and that there was never an occasion when the child had asked for help that she had refused. The child testified that the mother and the stepfather had helped her with homework, but she stated that the mother did not always understand the subject matter. The mother stated that she limits the child’s extracurricular activities to one sporting activity and one religious activity because, she said, that balance allowed the child ample time to work on her schoolwork.

The father testified that he and the stepmother help the child with homework and school projects when she visits on the weekends and that he had contacted the child’s teachers about her grades. The stepmother took the child to Sylvan Learning Center in the summer of 2004. The father stated that the child had been making Cs in science and that he did not contact her teachers until after she made a D. •

The mother is Jewish, as is the father, and the child also practices Judaism. The mother testified that the child is active in Temple Youth Group and that she was beginning to be involved in B’nai B’rith, a religious social group. The mother’s testimony indicated that she attended temple services with the child on Yom Kippur and Rosh Hashanah but that she and the child did not regularly attend Friday evening or Saturday morning services. However, the mother stated that she occasionally serves dinner at the child’s youth-group functions and that she participates when a special event is planned for the parents. The father stated that McComb does not have a Temple but that he was an active member at a Temple in Jackson, Mississippi, which, according to the father, is approximately 60 miles from his home. The father stated that he regularly attends Shab-bat services, which are on Friday evenings.

The mother stated that she and the child share many of the same interests, such as cooking, singing, shopping, going to the movies, taking trips together, doing crafts together, and painting. The child plays soccer, and the mother stated that she takes the child to practice and to her games and that she had attended almost every game. The mother stated that the child and the stepfather get along very well and that they had done a wood-working activity together.

The child testified that she and the mother do not cook together, that she and the mother do not go shopping just for her together, that they do not do crafts together, and that they do not read together. She stated that she loved the mother and that she was not angry with her. The child said that she was upset that she was not able to go to the mother’s wedding because she thought that her older siblings had gone to the wedding. She stated that she and the stepfather do not have anything in common, but she agreed that she gets along with him and admitted that they had done a wood-working project together.

The child testified that the mother had called her a “bitch,” a “freak,” a “retard,” a “liar,” and a “spoiled brat.” The child also stated that the mother had spoken negatively about the father to the child by calling him a “fat asshole” and a “liar.” The child further stated that, on one occasion, the mother had chased her with a baseball bat and had knocked a hole through her bedroom door. The child stated that the mother had once grabbed her arm and had left her fingernail imprints in her arm that were visible the next day. According to the child, the mother threw away a Mother’s Day gift that the child had made for her. The child also accused the mother of eavesdropping on her telephone conversations with the father and cutting the tires on her bicycle, although she apparently did not see the mother cut her bicycle tires. The mother denied each of the allegations made by the child.

The father testified that he has a wonderful relationship with the child. The father described the child as a “happy, well-adjusted, active, brilliant child.” The father testified that when the child visits McComb they watch movies, participate in various sporting activities, cook, and scrapbook. The father could not identify any positive attributes about the mother or her “dealings” with the child. The father stated that he never spoke negatively about the mother in the child’s presence.

The child stated that she and the father have a lot of the same interests and that she and the stepmother like to scrapbook, play tennis, and cook together. She stated that she gets along well with the stepmother, that she loves her half brother, and that her best friend lives in McComb. The mother expressed some concern about the child’s friends in Mississippi and expressed concern that the child had a 16-year-old boyfriend in Mississippi, although the child disputed that claim.

The child visited the father in Houston, Texas, on May 2, 2008, and the father stated that, during that visit, he noticed that the child’s lower lip was swollen and bruised and that the child had a bruise on her upper arm. The child stated that the mother had caused bruising on her arms that was visible the weekend that she went to Houston to visit the father. However, at the final hearing, when the child was shown a picture from that weekend taken by the father, the child could not identify any injury to her lip or any bruising on her arm. The father admitted that he had not taken the child to a doctor, had not reported the bruises to the Alabama Department of Human Resources (“DHR”), and had not talked to the mother about the child’s injuries.

On May 6, 2009, following the child’s weekend visit with the father in Houston, the mother received a telephone call from a caseworker with DHR. The DHR worker informed the mother that the child had filed a complaint against her. Apparently, the child had told her school counselors and the DHR caseworker that the mother had gotten drunk the night before and had slapped her, causing a large scratch on her face. According to the mother, the child eventually told the caseworker from DHR that the father had told her to make a mark on her face so that he could say that the mother had physically abused the child. The child admitted that she had lied when she told a counselor at her school that the mother had gotten drunk and slapped her, causing a scratch on her face. She admitted that she had scratched her own face, but she testified that no one had told her to do it. Following that incident, the mother took the child to see a counselor, Dr. Chancey, for the purpose of making the child more assertive so that she could not be bullied. The father denied telling the child to report an injury to DHR, and he denied ever telling the child to lie about anything.

The father stated that he had taken the child to see a psychologist, Dr. Patricia Brawley, approximately 10 months after filing the petition to change custody to find out what affect a change in residency would have on the child. The father did not inform the mother that he had taken the child to a psychologist. Dr. Brawley testified that she was a licensed professional counselor and that she had been approached by the father to determine whether a move from the child’s school in Alabama to a new school in Mississippi would be detrimental to the child. Dr. Brawley met with the child from March 2008 through December 2008, and she stated that she had formed an opinion as to whether a move from Birmingham to McComb would be disruptive for the child. However, the mother’s counsel objected before Dr. Brawley was able to state her opinion on the record, and the trial court sustained the objection.

Issues

The father raises four issues for this court to review on appeal: (1) whether the trial court committed reversible error by applying the custody-modification standard set forth in Ex parte McLendon, supra; (2) whether the trial court committed reversible error by excluding the opinion testimony of Dr. Brawley; (3) whether the trial court committed reversible error by denying the father’s petition to modify custody pursuant to the standard set forth in Ex parte McLendon, supra; and (4) whether the trial court committed reversible error in its award of $25,000 in attorneys fees to the mother and its additional requirement that the father pay $7,500 of the guardian ad litem’s fee.

Standard of Review

“ “When ore tenus evidence is presented, a presumption of correctness exists as to the trial court’s findings on issues of fact; its judgment based on these findings of fact will not be disturbed unless it is clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. J & M Bail Bonding Co. v. Hayes, 748 So.2d 198 (Ala.1999); Gaston v. Ames, 514 So.2d 877 (Ala.1987). When the trial court in a nonjury case enters a judgment without making specific findings of fact, the appellate court “will assume that the trial judge made those findings necessary to support the judgment.” Transamerica Commercial Fin. Corp. v. AmSouth Bank, 608 So.2d 375, 378 (Ala.1992). Moreover, “[u]nder the ore tenus rule, the trial court’s judgment and all implicit findings necessary to support it carry a presumption of correctness.” Transamerica, 608 So.2d at 378. However, when the trial court improperly applies the law to [the] facts, no presumption of correctness exists as to the trial court’s judgment. Allstate Ins. Co. v. Skelton, 675 So.2d 377 (Ala.1996); Marvin’s, Inc. v. Robertson, 608 So.2d 391 (Ala.1992); Gaston, 514 So.2d at 878; Smith v. Style Advertising, Inc., 470 So.2d 1194 (Ala.1985); League v. McDonald, 355 So.2d 695 (Ala.1978). “Questions of law are not subject to the ore tenus standard of review.” Reed v. Board of Trustees for Alabama State Univ., 778 So.2d 791, 793 n. 2 (Ala.2000). A trial court’s conclusions on legal issues carry no presumption of correctness on appeal. Ex parte Cash, 624 So.2d 576, 577 (Ala.1993). This court reviews the application of law to facts de novo. Allstate, 675 So.2d at 379 (“[W]here the facts before the trial court are essentially undisputed and the controversy involves questions of law for the court to consider, the [trial] court’s judgment carries no presumption of correctness.”).’ ”

Farmers Ins. Co. v. Price-Williams Assocs., Inc., 873 So.2d 252, 254-55 (Ala.Civ.App.2003) (quoting City of Prattville v. Post, 831 So.2d 622, 627-28 (Ala.Civ.App.2002)).

Discussion

I. Application of the Ex parte McLendon Standard

The father first argues that the trial court erred in applying the custody-modification standard set for in Ex parte McLen-don to his petition to modify custody of the child. The father argues that the trial court was required to evaluate his petition to modify custody based on certain provisions found in the Alabama Parent-Child Relationship Protection Act, § 30-3-160 et seq., Ala.Code 1975 (“the Act”). The father argues that, because he lived in McComb and the mother lived in Birmingham, his petition for modification of custody necessarily contemplated a change in the child’s principal residence. Based on this line of reasoning, the father argues that, pursuant to § 30-3-169.7, Ala.Code 1975, the trial court was required to consider the factors set forth in § 30-3-169.3, Ala.Code 1975, in making a determination on the father’s petition to modify custody of the child.

The father’s argument is not well taken. The parties did not dispute the fact that the mother was the “custodial” parent for purposes of a custody-modification analysis. This court and our supreme court have consistently held that a noncustodial parent seeking modification of a pri- or custody determination must meet the custody-modification standard set forth in Ex parte McLendon, supra. See, e.g., Ex parte Russell, 19 So.3d 886 (Ala.2009); and McCormick v. Ethridge, 15 So.3d 524 (Ala.Civ.App.2008). The father is essentially arguing that the Act should apply in place of the custody-modification standard set forth in Ex paite McLendon because the child’s principal residence would change if his petition for modification was granted. However, the child’s principal residence was not going to change unless the father first satisfied the custody-modification standard set forth in Ex parte McLendon.

Furthermore, we conclude that § 30-3-169.7, by its own terms, does not apply in this particular case. Section 30-3-169.7 states:

“If the issue of change of principal residence of a child is presented in a petition for divorce or dissolution of a marriage or other petition to determine custody of or visitation with a child, the court shall consider, among other evidence, the factors set forth in Sections 30-3-169.2 and 30-3-169.3 in making its initial determination.”

(Emphasis added.)

The father correctly points out that “[t]he cardinal rule of statutory interpretation is to determine and give effect to the intent of the legislature as manifested in the language of the statute,” Ex parte State Dep’t of Revenue, 683 So.2d 980, 983 (Ala.1996) (citing Gholston v. State, 620 So.2d 719 (Ala.1993)), and that this court is to give the words of a statute their “natural, plain, ordinary, and commonly understood meaning....” IMED Corp. v. Systems Eng’g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992). See also Alabama Educ. Ass’n v. Nelson, 770 So.2d 1057, 1058 (Ala.2000) (citing Johnson v. Price, 743 So.2d 436, 438 (Ala.1999)) (“In order to ascertain the meaning of a statute, we look first to the plain meaning of the words written by the Legislature”). A plain reading of § 30-3-169.7 reveals that that section is written in the cpntext of a trial court’s making an initial custody determination. Thus, we conclude that a plain reading of § 30-3-169.7 indicates that it does not apply in the present case because the trial court was not making an initial custody determination as to the child. See Lackey v. Lackey, 18 So.3d 393, 399 (Ala.Civ.App.2009) (“Section 30-3-169.7 ... provides that, when ... the issue of relocation is presented in conjunction with an initial custody determination, ‘the court must consider ... the factors set forth in Sections 30-3-169.2 and 30-3-169.3.’ ”).

At first glance, this conclusion seems to be at odds with the term “child custody determination” as defined in the Act at § 30-3-161(3), Ala.Code 1975, because the definition of that phrase includes custody-modification orders. However, § 30-3-161, Ala.Code 1975, states that the definitions of words and phrases defined in that section are applicable in the Act “unless the context requires a different definition.” (Emphasis added.) As we stated above, when viewed in its proper context, § 30-3-169.7 relates to an initial determination of custody and does not contemplate a modification of a prior custody order. Therefore, even though the phrase “child custody determination,” as defined'in § 30-3-161(3), includes custody-modification orders, we must conclude that, in its proper context, § 30-3-169.7 requires a definition of “child custody determination” that does not include custody-modification orders. Cf. Lackey v. Lackey, 18 So.3d at 399 n. 1. Because we have determined that § 30-3-169.7, by its plain language, does not apply to petitions to modify a prior custody determination, we find no error in the trial court’s failure to consider the factors listed in § 30-3-169.3 when it made a determination regarding the father’s petition to modify custody of the child. Thus, we conclude that the trial court properly applied the custody-modification standard set forth in Ex parte McLendon to the father’s petition to modify custody of the child.

II. The Opinion Testimony of Dr. Brawley

The father argues that, even if the trial court properly applied the custody-modification standard set forth in Ex parte McLendon, the trial court still committed reversible error in excluding the opinion testimony of his expert witness, Dr. Braw-ley. At the final hearing, the father’s attorney presented Dr. Brawley with a hypothetical situation that summarized the facts and background of the parties, as was set forth in the record. The father’s attorney then asked Dr. Brawley:

“Based upon that hypothetical and based upon your licensed certifications, degrees and background, do you have an opinion as to whether or not if this Court were to change custody and move [the child] from Birmingham, Alabama living with [the mother] to McComb, Mississippi living with [the father] and [the father’s wife], would be disruptive; do you have an opinion?”

Dr. Brawley then stated that she did have an opinion on the matter, and when the father’s counsel asked what her opinion was, the mother’s attorney objected, and the trial court sustained the objection.

Although the father argues that the exclusion of Dr. Brawley’s opinion testimony was reversible error, pursuant to Rule 45, Ala. R.App. P., even if the trial court erred by excluding proper evidence, this court will not reverse the trial court’s judgment on appeal “unless ..., after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties.” Rule 45; see B.S.L. v. S.E., 826 So.2d 890, 894 (Ala.Civ.App.2002). After a thorough “examination of the entire cause,” we cannot conclude that the trial court’s exclusion of Dr. Brawley’s testimony “probably injuriously affected substantial rights” of the father. See Rule 45. The father argues that the trial court erred in failing to allow Dr. Brawley to state her opinion as to whether moving the child from Birmingham to McComb would be disruptive for the child. However, as stated above, the father was required to meet the custody-modification standard set forth in Ex parte McLendon, which

“requires the parent seeking a custody change to demonstrate [ (1) ] that a material change in circumstances has occurred since the previous judgment, [ (2) ] that the child’s best interests will be materially promoted by a change of custody, and [ (3) ] that the benefits of the change will more than offset the inherently disruptive effect resulting from the change in custody. Ex parte McLendon, 455 So.2d at 866.”

Dean v. Dean, 998 So.2d 1060, 1065 (Ala.Civ.App.2008) (emphasis added).

Thus, pursuant to the standard set forth in Ex parte McLendon, a trial court presupposes the fact that a change of custody, whether between parents living in the same city or between parents living in different states, has a disruptive effect on a child. Therefore, even if Dr. Brawley had presented testimony indicating that moving the child from Birmingham to McComb would have had very little to no disruptive effect on the child, the trial court, pursuant to Ex parte McLendon, was required to evaluate the proposed change in custody with a presumption that the change in custody would have an inherently disruptive effect on the child. Id. Accordingly, we conclude that any error the trial court may have committed in failing to allow Dr. Brawley’s testimony regarding whether a relocation from Birmingham to McComb would be disruptive for the child was harmless and does not require reversal of the trial court’s judgment.

III. Denial of the Father’s Petition to Modify Custody

The father next argues that, even if the trial court applied the proper custody-modification standard, and even if the trial court did not err in excluding the testimony of Dr. Brawley, the trial court still erred in denying his petition to modify custody of the child because, he asserts, he met his burden under Ex parte McLendon.

First, the father argues that the trial court was required to consider (1) prior changes of residence by the mother, citing Taft v. Taft, 553 So.2d 1157, 1158 (Ala.Civ.App.1989); (2) the mother’s interference with visitation, citing Vick v. Vick, 688 So.2d 852, 856 (Ala.Civ.App.1997); and (3) attempts by the mother to diminish the relationship between the father and the child, citing Calabrisi v. Boone, 470 So.2d 1255, 1258 (Ala.Civ.App.1985).

After a thorough review of all the evidence in the record, we cannot conclude that the trial court erred in denying the father’s custody-modification petition based on the mother’s changes of residence, the mother’s alleged interference with visitation, or any attempt by the mother to diminish the father’s relationship with the child. The mother’s move to New Orleans in 1999 and her return to Birmingham in 2005 do not rise to a level of instability that this court has relied on when affirming custody modifications in the past. See Taft v. Taft, supra (affirming modification of custody from mother to father and noting that the mother and the child had relocated eight times in two years).

Furthermore, we find no evidence in the record to support the father’s argument that the mother had interfered with the father’s court-ordered visitation rights with the child. Although evidence indicated that the father could not exercise midweek visitation with the child after the mother returned to Birmingham, that the mother stopped allowing the child to visit the father on alternating fifth weekends of each month that had a fifth weekend, and that the mother stopped meeting the father in Meridian for visitation exchanges, the mother was not required by a court order to make the child available for visitation at those times nor was she required to meet the father in Meridian for visitation exchanges. See C.D.K.S. v. K.W.K., 40 So.3d 736, 745 (Ala.Civ.App.2009) (citing Cochran v. Cochran, 5 So.3d 1220, 1228-29 (Ala.2008)) (“[A] custodial parent is under no legal obligation to continue voluntary supplemental visitation and ... the termination of such visitation does not constitute sufficient grounds to transfer custody of a child.”). See also Vick v. Vick, supra (visitation problems alone are insufficient to necessitate a change of custody).

We also find no evidence to support a finding that the mother’s cessation of supplemental visitation was an attempt to diminish the relationship between the father and the child, and, even if it was, there was no evidence indicating that the child’s relationship with the father had been diminished in any way. See Calabrisi v. Boone, 470 So.2d at 1258 (concluding that the mother had interfered with the father’s visitation but that there was no evidence demonstrating that the mother had planned to diminish the relationship between father and child and that, even if she had, she had had no success in doing so). Although the child testified that the mother had called the father derogatory names in her presence, that evidence was disputed and the child testified regarding her love for the father and her desire to live with him.

Next, the father argues that the trial court was required to consider (1) evidence that the mother was placing her social pursuits ahead of the child, citing Junkin v. Junkin, 332 So.2d 392, 395-96 (Ala.Civ.App.1976); and (2) evidence of any sexual indiscretions by the mother, citing Batton v. Batton, 496 So.2d 68, 69 (Ala.Civ.App.1986), and Smith v. Smith, 464 So.2d 97, 99 (Ala.Civ.App.1984).

In support of his argument, the father points out certain facts that were set forth at the final hearing, such as the mother’s actions in the days that led up to Hurricane Katrina making landfall near New Orleans, the mother’s relationships with two individuals before her marriage to the stepfather, and the stepfather’s overnight visits at the mother’s home before their marriage. The father also points out that the child did not always eat dinner with the mother and the stepfather and that the mother had not invited the child to her wedding.

In Junkin v. Junkin, supra, a case cited by the father, this court affirmed a modification of custody from the mother to the father because there was sufficient evidence to support a finding that the mother placed her “entertainment and social pursuits ahead of her regard for the child.” 332 So.2d at 395. Initially we note that the “entei’tainment and social pursuits” at issue in the present case do not rise nearly to the level of those practiced by the mother in Junkin. In that case, we held that “[t]he question is not the presence or absence of sexual activity in [the mother’s] social life; rather, the trial court must determine whether the emphasis on social life, promiscuous or chaste, detracts from a stable, worthwhile home environment for the child.” Id. at 395.

In the present case, the trial court heard evidence that would support a conclusion that the mother had not placed her social pursuits above the child. The mother included the child in trips she took with the two individuals that she had dated before she married the stepfather. Also, there is no evidence to support a finding that the mother behaved inappropriately in front of the child with her paramours. Compare Batton v. Batton, 496 So.2d at 69 (another case cited by the father, in which this court affirmed a modification of custody from the mother to the father after the child testified that the mother had engaged in sexual activity with her paramour while the child was present in the same motel room). Moreover, at the time of the final hearing, the mother had been happily married for over one year and the mother was an active participant in the child’s schooling and extracurricular activities. There was no indication that she had placed her social pursuits above the child or that she had provided anything other than a stable home environment for the child. Junkin, 332 So.2d at 395.

The father further argues that the trial court was required to consider (1) evidence of the child’s home life if the custodial parent had remarried, citing Lansdell v. Snoddy, 269 Ala. 344, 113 So.2d 151 (1959), and Raines v. Baucom, 270 Ala. 706, 708, 121 So.2d 870, 871 (1960); (2) evidence concerning the mother’s supervision of and involvement in the child’s life, citing Hughston v. Ivey, 479 So.2d 1277, 1278 (Ala.Civ.App.1985); and (3) evidence concerning the mother’s lack of interest in resolving problems in the child’s educational pursuits, citing Elliott v. Elliott, 560 So.2d 771, 772 (Ala.Civ.App.1990), and Wesson v. Wesson, 507 So.2d 536, 537-38 (Ala.Civ.App.1987).

The father directs this court’s attention to the child’s testimony that the mother rarely participated in any activities with the child, that the mother had called the child derogatory names, that the mother had not helped the child with her homework, that the mother had slashed her bicycle tires, that the mother had thrown away a gift made by the child, and that the mother had eavesdropped on her telephone conversations. We note that each of those alleged “facts” were disputed at the final hearing by the mother. The mother stated that she went shopping with the child, that she transported the child to soccer practices and games, that she participated in youth activities when appropriate at the Temple, that she constantly sought to help the child with her homework, and that she had not called the child any derogatory names or cut her bicycle tires. Thus, the trial court, as the trier of fact, was free to believe the testimony of the mother over the testimony of the child, whose credibility was called into question by her admitted dishonesty regarding alie-gations of abuse she made against the mother.

In Raines v. Baucom, supra, the supreme court stated that “the effect of a remarriage can be shown with other factors as a circumstance indicating a material change of condition since the divorce.” 270 Ala. at 708, 121 So.2d at 871. The father argues that the child rarely participates in activities with the stepfather. However, we cannot see how this fact would constitute a material change in circumstances when the child testified that she got along well with the stepfather and that she had participated in some activities, such as a wood-working project, with the stepfather. The father also mentions the fact that the mother took the child to services at the Temple only on holy days such as Yom Kippur and Rosh Hashana. However, the trial court also heard evidence indicating that, nonetheless, the child remained involved in Temple activities and organizations, that the mother took the child to the Temple for those activities, and that the only limitation the mother placed on the child’s activities at the Temple was in order to ensure that the child was spending ample time on her schoolwork.

The father also argues that the child’s grades, particularly her science grade, had suffered since she moved to Birmingham and that the only assistance the child had received with her homework was from the father. However, the mother testified that she had constantly sought to help the child with her homework, and the child testified that any time she had asked for the mother’s assistance the mother had provided it. Although the child alleged that the mother did not understand some of the subject matter of her homework, the mother testified that she had hired a tutor to help the child. The evidence in the record indicates that this is not a case in which the child recently began making poor grades and the mother left the child to her own devices. Instead, there is evidence that would support a conclusion that the mother personally provided assistance to the child when permitted by the child and provided further assistance to the child in the form of a tutor. We cannot conclude that the child’s poor grade in science and her otherwise average grades, that were consistent with her prior performance, constitute a material change in circumstances sufficient to modify custody from the mother to the father. See Galloway v. Harris, 646 So.2d 100, 103 (Ala.Civ.App.1994) (reversing an order modifying custody of a child from the mother to the father and noting that both parents appeared to be concerned and involved in the child’s education).

The father correctly points out that violence perpetrated against the child by the mother is a pertinent consideration in a custody-modification proceeding, citing E.M.C. v. K.C.Y., 735 So.2d 1225 (Ala.Civ.App.1999). The father points to the child’s testimony that the mother had chased the child with a baseball bat, leaving a hole in the child’s bedroom door; that the mother had left fingernail imprints on the child’s arm; that the mother had bruised the child’s upper arm; and that the mother had slapped the child, leaving a cut on the child’s lip. Again, that testimony was disputed. The reasoning behind the ore tenus rule and the presumption of correctness that it carries rests on the fact that “[t]he trial court is in the best position to observe the demeanor of witnesses and to assess their credibility.” Yellow Freight Sys., Inc. v. Green, 612 So.2d 1209, 1211 (Ala.Civ.App.1992). Regarding the abuse allegedly perpetrated by the mother, the trial court could have concluded that the mother’s testimony denying those allegations was more credible than the child’s. Because one view of the evidence provided sufficient support for the trial court’s implicit conclusion that the mother had not abused the child, we decline to reverse the trial court’s judgment on that basis. See McClelland v. McClelland, 841 So.2d 1264, 1268 (Ala.Civ.App.2002) (discussing the application of the Custody and Domestic or Family Abuse Act, § 30-3-130 et seq., Ala.Code 1975, and concluding that, in the absence of a specific finding regarding alleged acts of abuse, this court must assume that the alleged acts of abuse did not occur, that they did not constitute domestic abuse, or that both parties were guilty of abusive behavior).

Finally, the father argues that the trial court was required to consider the fact that the child desired to live with the him in McComb in light of the fact that the child had already established relationships in McComb. The father argues that the child enjoyed a great relationship with the stepmother and her half brother, that the child participated in many activities with the father and the stepmother in McComb, and that the child’s best friend lived in McComb. However, the child’s desire to live with the father does not compel the trial court to modify custody; instead, the wishes of the child are only a factor for the trial court to consider. See Bassett v. Brown, 598 So.2d 936, 937 (Ala.Civ.App.1992); and C.E. v. C.C.H., 963 So.2d 131 (Ala.Civ.App.2007) (concluding that there was insufficient evidence to meet the Ex parte McLendon standard when the evidence showed that the child wanted to live with the mother, that the child did not like talking to her stepmother, that the father did not spend time with the child, and that the child got to “go places” when she was in the mother’s custody).

We have thoroughly reviewed the record in this matter, and we have seriously considered the wishes and the testimony of the child. However, this court is forbidden from substituting its judgment for the judgment of the trial court when the trial court’s judgment is supported by evidence in the record. See Horton v. Perkins, 17 So.3d 235, 240-41 (Ala.Civ.App.2009) (citing Ex parte R.E.C., 899 So.2d 272, 279 (Ala.2004)) (“Although we may not have reached the same conclusion as the trial court, we cannot reweigh the evidence and substitute our judgment for that of the trial court.”).

“It is seldom that this court will reverse a trial court which has heard a child custody case presented ore tenus. As already stated, in such instances, an appellate court presumes the trial court’s judgment is correct and will not reverse unless an abuse of discretion is shown or unless the judgment is so unsupported by the evidence as to be plainly and palpably wrong.”

Calabrisi v. Boone, 470 So.2d at 1257 (citing, among other cases, Nicholas v. Nicholas, 464 So.2d 527 (Ala.Civ.App.1985)).

Based on the arguments made by the father on appeal, we cannot conclude that the trial court’s judgment denying his petition to modify custody of the child was so unsupported by the evidence as to be plainly or palpably wrong. Although one view of the evidence might present sufficient circumstances to show that a material change in circumstances had occurred since the entry of the parties’ 1998 divorce judgment, we conclude that there is also sufficient evidence to support the trial court’s determination that the father had not met his burden under Ex parte McLendon. Thus, we affirm the trial court’s judgment insofar as it denied the father’s petition to modify custody of the child.

IV. The Mother’s Attorney’s Fee and the Guardian Ad Litem’s Fee

Finally, the father argues that the trial court exceeded its discretion in ordering him to pay the mother’s attorney’s fee in the amount of $25,000 and in ordering him to pay $5,000 in fees to the guardian ad litem in addition to the $2,500 that he had already deposited with the clerk of the trial court for the guardian ad litem’s fee. The father argues that the mother had sufficient resources with which to pay her attorney’s fee and to pay 50% of the guardian ad litem’s fees.

“ ‘Whether to award an attorney fee in a domestic relations case is within the sound discretion of the trial court and, absent an abuse of that discretion, its ruling on that question will not be reversed. Thompson v. Thompson, 650 So.2d 928 (Ala.Civ.App.1994). “Factors to be considered by the trial court when awarding such fees include the financial circumstances of the parties, the parties’ conduct, the results of the litigation, and, where appropriate, the trial court’s knowledge and experience as to the value of the services performed by the attorney.” Figures v. Figures, 624 So.2d 188, 191 (Ala.Civ.App.1993).’ ”

Lackey v. Lackey, 18 So.3d at 402 (quoting Glover v. Glover, 678 So.2d 174, 176 (Ala.Civ.App.1996)).

The father does not argue that either award is unreasonable or that he is unable to pay the mother’s attorney’s fee or his portion of the guardian ad litem’s fee. According to the father’s income affidavit, he earns approximately $41,000 a month, whereas the mother earns approximately $46,000 a year. It is also true that the mother has other substantial assets. However, in light of the outcome of the litigation, we find that the trial court did not exceed its discretion by requiring the father to pay $25,000 for the mother’s attorney’s fee or by requiring the father to pay $7,500 of the guardian ad litem’s fee.

Conclusion

Based on the reasoning set forth above, we affirm the trial court’s judgment.

AFFIRMED.

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

      . At the time the parties divorced, the mother was awarded custody of the parties' three minor children. However, at the time the father initiated the present action, the child was the only remaining minor child of the parties. Because the father's custody petition only sought custody of the child, we will set forth the facts only as they pertain to the child.

      . The mother was found in contempt in March 2000 for removing the child from Jefferson County before the trial court modified the divorce judgment. The father was also found in contempt in March 2000 for violating various provisions of the divorce judgment.

      . The father stated in his postjudgment motion that the testimony of his expert witness was allowed, but our review of the record reveals, and the father’s argument on appeal confirms, that the trial court excluded the testimony of the father’s expert witness.

      . The parties agreed that a Louisiana court had never issued an order regarding custody of the child or visitation with the child. The Civil District Court for the Parish of Orleans, State of Louisiana, issued an order on August 27, 2007, that stated that it did not have jurisdiction to entertain custody proceedings regarding the child.

      . There was some contention at the final hearing as to whether an “agreement” had been made between the parties to meet in Meridian, and the father alleged that the parties’ alleged agreement to meet in Meridian was why he had consented to allowing the child to move to Birmingham. Either way, it was undisputed that there was not a court order requiring either party to meet in Meridian for visitation exchanges.

      . The mother stated that, on one occasion, she and the child had stayed in New Orleans with a paramour and his daughter. The mother stated that she and the paramour did not sleep together and that they did not engage in any sexual activity on that occasion.


source: Caselaw Access Project

license: Public Domain

text:
    Linda BOGUS and James Bogus v. BANK OF NEW YORK, as trustee for the Certificate Holders CWALT, Inc., Alternative Loan Trust 2005-77T1 Mortgage Pass-Through Certificates, Series 2005-77T1.
    2081195.
    Court of Civil Appeals of Alabama.
    April 16, 2010.

      Henry L. Penick of H.L. Penick & Associates, P.C., Birmingham, for appellants.
    Greggory M. Deitsch, R. Ryan Daugherty, and Meaghan E. Ryan of Sir ote & Permutt, P.C., Birmingham, for appellee.
   BRYAN, Judge.

Linda Bogus and James Bogus, the defendants below, appeal from the denial of their motion to vacate a default judgment pursuant to Rule 60(b)(4), Ala. R. Civ. P. We reverse and remand.

Bank of New York, as trustee for the Certificate Holders CWALT, Inc. Alternative Loan Trust 2005-77T1 Mortgage Pass-Through Certificates, Series 2005-77T1 (“BNY”), sued the Boguses on July 24, 2008, alleging that the Boguses had mortgaged a parcel of real property loeat-ed in Shelby County (“the property”); that the mortgage had been foreclosed on May 29, 2007; that, by virtue of the foreclosure, BNY had become the owner of the property; that, on May 29, 2007, BNY had served the Boguses with a written demand for possession of the property pursuant to § 6-5-251, Ala.Code 1975; and that the Boguses had failed to vacate the property. BNY stated a claim of ejectment and sought possession of the property and damages. In addition, BNY sought a determination that the Boguses had forfeited their right to redeem the property.

Although BNY’s complaint alleged that the Boguses were residents of Shelby County, the record indicates that BNY made no attempt to personally serve the Boguses with process. Rather, the record indicates that, on July 28, 2008, four days after it filed its complaint, BNY attempted to effect service of process on the Boguses by posting the process on the property.

On February 10, 2009, BNY applied to the clerk of the trial court for an entry of default against the Boguses due to their failure to answer the complaint or otherwise defend the action; on February 12, 2009, the clerk made the entry of default against the Boguses. On February 24, 2009, the trial court entered a default judgment against the Boguses. The default judgment awarded possession of the property to BNY and determined that the Boguses had forfeited- their right to redeem the property; it did not award any damages.

On April 10, 2009, the Boguses moved the trial court for relief from the default judgment pursuant to Rule 60(b)(4), Ala. R. Civ. P. As one of them grounds, the Boguses asserted that the default judgment was void because, they said, they had not been personally served with process and, therefore, they said, the trial court lacked jurisdiction to enter the default judgment. Following a hearing, the trial. court denied the Boguses’ motion for relief from the default judgment. The Boguses timely appealed to the supreme court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

The Boguses first argue that the trial court erred in denying their Rule 60(b)(4) motion because, the Boguses say, they were not personally served with process and, therefore, they say, the trial court lacked jurisdiction to enter the default judgment. We review de novo a trial court’s ruling on a Rule 60(b)(4) motion. See Northbrook Indent. Co. v. Westgate, Ltd., 769 So.2d 890, 893 (Ala.2000) (“This court has held that ‘[t]he review applicable to a Rule 60(b)(4) [, Ala. R. Civ. P.,] motion is de novo.’ ” (quoting Greene v. Connelly, 628 So.2d 346, 351 (Ala.1993))).

BNY argues that it validly served the Boguses with process by posting the process on the property. As legal authority for this argument, BNY relies on Title 62, § 129, Ala.Code 1940 (as recompiled in 1958).

As last amended, Title 62, § 129, was a statute that applied to counties with a population of 90,000 or more according to the last federal census. It authorized a person who became the owner of real estate by virtue of a mortgage foreclosure to file an ejectment action if the person in possession of the real estate did not surrender possession of it within 10 days after written demand. The portion of that statute upon which BNY relies, stated:

“Service of ... the summons and complaint as herein provided for, shall be had upon the defendants, unless the defendant is a non-resident or cannot be found, in either or which event, service ... of the summons and complaint, may be had by leaving the same with some person above the age of eighteen years, residing on or in possession of the premises, and in case no one is found on said premises, above said age, then by posting the same on the premises but unless personal service of the summons and complaint is had upon the defendant, or the defendant files an appearance in such action, no personal judgment shall be rendered against such defendant for damages for the detention of the premises.”

Although Title 62, § 129, was not specifically included in the Alabama Code of 1975, BNY argues that it remains in force by virtue of § 1-1-10, Ala.Code 1975, which provides, in pertinent part:

“Subject to the provisions of this section, or as may be otherwise provided in this Code, all statutes of a public, general and permanent nature, not included in this Code, are repealed. The foregoing provisions of this section shall not repeal, nor be construed to repeal, local, private or special statutes; nor statutes which relate to or apply to only one county, municipality, political subdivision, district or territory; nor statutes which apply to one or more counties, municipalities, political subdivisions, districts or territories on the basis of population.”

(Emphasis added.)

Assuming without deciding that Title 62, § 129, remains in force, BNY, which bore the burden of proving that service of process was performed correctly and legally, see Dennis v. Still Waters Residential Ass’n, Inc., 18 So.3d 959, 961 (Ala.Civ.App.2009) (“ ‘ “ “When the service of process on a defendant is contested as being improper or invalid, the burden of proof is on the plaintiff to prove that service of process was performed correctly and legally.’ ” ’ ” (quoting Bank of America Corp. v. Edwards, 881 So.2d 403, 405 (Ala.2003), quoting in turn Horizons 2000, Inc. v. Smith, 620 So.2d 606, 607 (Ala.1993), quoting in turn Ex parte Volkswagenwerk Aktiengesellschaft, 443 So.2d 880, 884 (Ala.1983))), failed to prove that it complied with the service-of-process provisions in Title 62, § 129. That statute requires that a defendant who is a resident of the State of Alabama be served personally unless he or she cannot be found. In the case now before us, the record indicates that BNY did not make any attempt to serve the Boguses personally. Consequently, BNY’s attempt to serve the Boguses by posting the process on the property did not comply with the service-of-process provisions in Title 62, § 129. Therefore, BNY did not validly serve the Boguses even if Title 62, § 129, remains in force.

Accordingly, we reverse the trial court’s denial of the Boguses’ Rule 60(b)(4) motion and remand the action to the trial court for further proceedings consistent with this opinion. Because the Boguses’ first argument disposes of this appeal, we pretermit discussion of their other argument.

REVERSED AND REMANDED.

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

      . Rule 60(b) provides, in pertinent part:
      “On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: ... (4) the judgment is void ...

      . We do not consider the issue whether the provision in Title 62, § 129, authorizing service of process by posting is constitutional because the Boguses have not raised that issue or presented any argument regarding it. See Tucker v. Cullman-Jefferson Counties Gas Dist., 864 So.2d 317, 319 (Ala.2003) (‘"An appeals court will consider only those issues properly delineated as such, and no matter will be considered on appeal unless presented and argued in brief. Ex parte Riley, 464 So.2d 92 (Ala.1985).’” (quoting Braxton v. Stewart, 539 So.2d 284, 286 (Ala.Civ.App.1988)) (emphasis omitted)).


author: MOORE, Judge.

text:
    Shenderryl KaPrince WILSON v. Pamela Jeanett WILSON.
    2090430.
    Court of Civil Appeals of Alabama.
    May 21, 2010.
    Rehearing Denied Sept. 17, 2010.
    Certiorari Denied Nov. 12, 2010 Alabama Supreme Court 1100025.
    Shenderryi KaPrince Wilson, pro se.
   MOORE, Judge.

On June 19, 2009, Shenderryl KaPrince Wilson (“the husband”) filed a pro se complaint seeking a divorce from Pamela Jeanett Wilson (“the wife”). Although the husband’s complaint was filed on June 19, 2009, the husband signed the complaint on November 8, 2008, and the husband’s signature was notarized on November 3, 2008. In his complaint, the husband asserted that he and the wife were married on May 14, 1999, in Birmingham, and that the parties separated on April 7, 2004. The husband also asserted that he was incarcerated at the Childersburg Community Work Center in Childersburg, and, citing § 30-2-4, Ala.Code 1975, he asserted that his complaint was properly before the court because the wife “currently resides in Jefferson County.” As grounds for the divorce, the husband alleged (1) that the wife had committed adultery, see § 30-2-l(a)(2), Ala.Code 1975, (2) that he had “becom[e] imprisoned in the penitentiary of this state for two years, the sentence being for seven years or longer,” see § 30-2-l(a)(4), Ala.Code 1975, (3) that there “exists such a complete incompatibility of temperament that the parties can no longer live together,” see § 30-2-l(a)(7), Ala.Code 1975, and (4) that “[t]here has been an irretrievable breakdown of the marriage and that further attempts at reconciliation are impractical or futile and not in the best interests of the parties or family,” see § 30-2-1 (a)(9), Ala.Code 1975. Although the husband did not assert in his complaint that children had been born of the parties’ marriage, the husband filed a child-support-information sheet along with the complaint.

The husband also filed two affidavits on June 19, 2009, both of which were signed by the husband and notarized on November 3, 2008. In the first affidavit he stated that the summons and complaint could not be served on the wife because “her residence is unknown and it cannot with reasonable diligence be ascertained,” and he requested that the wife be served by publication, pursuant to Rule 4.3, Ala. R. Civ. P. In the second affidavit he stated, among other things:

“I am an indigent inmate and I cannot pay the cost of publication due to substantial hardship. An affidavit of substantial hardship is being filed herewith. Pursuant to Rule 4.3(c)(1), [Ala.] R. Civ. P., service may be accomplished by alternative means, i.e., ‘first class mail in lieu of publication,’ in this situation. Id. Pursuant to Rule 4.3(c)(1), [Ala.] R. Civ. P., I provide ... ‘all of the known addresses of the defendant for the preceding two years’ ....”

On July 29, 2009, the trial court granted the husband’s request to have service perfected on the wife by first-class mail.

On September 22, 2009, the husband filed an “application, affidavit, and entry of default,” in which he asserted that the wife had been served with a copy of the summons and complaint on July 29, 2009, that more than 30 days had elapsed since the wife was served, and that the wife had failed to answer or otherwise defend against the complaint. An entry of default was entered by the circuit clerk on September 22, 2009. On October 2, 2009, the trial court entered the following order:

“THIS CAUSE was submitted to the Court on [the husband’s] Application, Affidavit, and Entry of Default entered on September 22, 2009. Upon consideration thereof, the Court is of the opinion the following Order should be entered. Accordingly, it is
“ORDERED and ADJUDGED by the Court that the [husband’s] Application, Affidavit, and Entry of Default entered on September 22, 2009 is set for hearing before the undersigned on the 20th day of October, 2009 at 9:00 a.m. ...”

On October 13, 2009, the husband filed a motion requesting that he be transported to the court for the October 20, 2009, hearing or, in the alternative, that he be granted leave of court to take his own oral or written deposition. On October 20, 2009, the trial court entered an order denying the husband’s request to be transported to the hearing but granting the husband’s request for leave to take his own written deposition. The trial court instructed the husband to provide the name of a notary so that the court could appoint that person to take the husband’s testimony. The husband provided the court with the name of a notary, and, on November 18, 2009, the trial court appointed the notary to take the testimony of the husband and to “certify that the [husband] was duly sworn by him and that the written testimony is a true record of the testimony given by the [husband].” On December 2, 2009, the husband’s testimony was filed with the trial court. In that sworn testimony, the husband stated:

“COMES NOW [the husband], ... and having personal knowledge of the facts set forth below submits the following testimony:
“1. I am currently married to the [wife].
“2. I became incarcerated for a felony conviction of Third Degree Robbery in 2002, and I am serving a sentence of 20 years.
“3. The [wife] and I separated on April 14, 2004.
“4. I desire a divorce from the bonds of matrimony because:
“(1) The [wife] has committed adultery. ■
“(2) I have become imprisoned in the penitentiary of this state for two
years, the sentence being for seven years or longer.
“(3) There exists such a complete incompatibility of temperament that the [wife] and I can no longer live together.
“(4) There has been an irretrievable breakdown of the mamage and that further attempts at reconciliation are impractical or futile and not in the best interests of the parties or family.
“5. The [wife] was served with a copy of the Divorce Complaint, and she failed to file an answer within thirty (30) days.
“6. Based upon the failure of the [wife] to file an answer to the Divorce Complaint, I filed an Application for the Entry of a Default Judgment.
“WHEREFORE, the premises considered, [the husband] prays that this Court will accept the foregoing testimony and grant the Application for the Entry of a Default Judgment.”

On December 22, 2009, the husband filed a “motion to recall order”; the order he sought to recall apparently set the case for a hearing on December 18, 2009. On December 22, 2009, the trial court entered the following order:

“THIS CAUSE came on to be heard on the 18th day of December, 2009 and was submitted to the Court on the [husband’s] Motion to Recall Order and on the Courts preemptory calendar. Neither the [husband] nor counsel on his behalf appeared in Open Court. Neither the [wife] nor counsel on her behalf appeared in Open Court. The Court did receive [the husband’s] testimony that was submitted on his Application for a Default Judgment entered September 22, 2009. This Court having considered all pleadings pending before this Court is of the opinion the following Order should be entered. Accordingly, it is
“ORDERED and ADJUDGED by the Court:
“1. That [husband’s] submitted testimony fails to address necessary information on proof for a divorce, therefore [husband’s] request to grant a divorce be and the same is hereby denied.
“2. That in light of the [husband’s] failure to provide as referred above the Motion to Recall Order is also denied.”

The husband filed a “motion for reconsideration of order,” which the trial court denied. The husband appealed.

On appeal, the husband argues that the trial court erred as a matter of law in dismissing his complaint for a divorce. He argues that the grounds he cited in his complaint are grounds upon which a divorce can be granted, as set out in Ala. Code 1975, § 30-2-l(a)(2), (4), (7), and (9). He asserts that the testimony he submitted supports those allegations, specifically, the allegations asserted under subsection (a)(4).

We, however, find the dispositive issue to be whether the husband presented “sufficient legal evidence to sustain the allegations of his complaint regarding jurisdiction.” Crenshaw v. Crenshaw, 646 So.2d 144, 145 (Ala.Civ.App.1994).

In Crenshaw, the husband filed a complaint alleging that he was incarcerated in a penitentiary and that he should be granted a divorce pursuant to § 30-2-1 (a)(4), Ala.Code 1975. He also alleged incompatibility of temperament and an irretrievable breakdown of the marriage as grounds for the divorce. The wife was served by publication. The husband subsequently moved for a default judgment. He also filed an affidavit in which he stated that he was incarcerated in a correctional facility and, thus, was unable to appear personally before the trial court, that the wife had been served by publication after unsuccessful attempts to locate her, and that he had been unable to contact or find the wife. 646 So.2d at 145. The trial court denied the divorce without stating its reasons, and the husband appealed. Id.

This court found the dispositive issue to be whether the husband’s proof was sufficient to provide the trial court -with jurisdiction over the marital res. Id. This court stated:

“Jurisdiction in a divorce case is vested by statute; the existence of facts creating the court’s jurisdiction may not be inferred, but must affirmatively appear from the record. Vaughan v. Vaughan, 267 Ala. 117, 100 So.2d 1 (1957); Meares v. Meares, 256 Ala. 596, 56 So.2d 661 (1952). ‘When the defendant is a nonresident, the other party to the marriage must have been a bona fide resident of this state for six months next before the filing of the complaint, which must be alleged in the complaint and proved.’ (Emphasis supplied.) Ala. Code 1975, § 30-2-5. A judgment rendered without proof of the residence requirement is void for want of subject matter jurisdiction. Chavis v. Chavis, 394 So.2d 54 (Ala.Civ.App.1981). The question before this court is whether [the husband] presented sufficient legal evidence to sustain the allegations of his complaint regarding jurisdiction. Levy v. Levy, 256 Ala. 629, 56 So.2d 344 (1951).
“Although [the husband] stated in his written affidavit that he was incarcerated in a correctional facility, he offered no proof of how long he had been a resident of the state. Because he was unable to show that the wife was a resident of the state, the trial court could have found that the proof was insuffi-dent to provide it with jurisdiction over the marital res. Although the trial court could have simply dismissed [the] husband’s complaint for divorce, it merely denied the husband the divorce. We find no error in that decision. Therefore, the judgment of the trial court is affirmed.”

646 So.2d at 145.

In the present case, the husband asserted that he was “currently incarcerated at the Childersburg Community Work Center,” and, citing § 30-2-4, he asserted that his complaint was properly before the court because the wife “currently resides in Jefferson County.” Although the husband’s complaint was filed on June 19, 2009, it was signed by the husband and notarized on November 3, 2008, some seven and a half months before it was actually filed. Additionally, on the same day he filed his complaint, the husband filed an affidavit in which he requested that the wife be served by publication, pursuant to Rule 4.3, Ala. R. Civ. P., because the wife’s residence was unknown and it could not with reasonable diligence be ascertained. Like in Crenshaw, the husband in the present case “was unable to show that the wife was a resident of the state,” 646 So.2d at 145, and, although his written testimony stated that he “became incarcerated for a felony conviction of Third Degree Robbery in 2002,” he offered no proof of how long he had been a resident of this state. See Ex parte Sides, 594 So.2d 93, 95-96 (Ala.1992) (holding that involuntary incarceration of a person in prison will not effect a change in residence). Accordingly, we conclude, just as the court did in Cren-shaw, that the trial court’s judgment denying the husband’s request for a divorce because “the [husband’s] submitted testimony fail[ed] to address necessary information on proof for a divorce” is due to be affirmed.

AFFIRMED.

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


author: THOMAS, Judge.

text:
    A.C. v. C.C.
    2090424.
    Court of Civil Appeals of Alabama.
    May 21, 2010.

      Derek E. Yarbrough of Motley, Motley & Yarbrough, LLC, Dothan, for appellant.
    Joel M. Nomberg of Nomberg & Maddox, P.C., Dothan, for appellee.
   THOMAS, Judge.

A.C. (“the mother”) appeals from the judgment of the Houston Juvenile Court declaring L.C. (“the child”) dependent and placing custody of the child with C.C. (“the grandmother”). This is the second time this case has come before this court. In A.C. v. C.C., 34 So.3d 1281 (Ala.Civ.App.2009), we dismissed the mother’s appeal, holding that the juvenile court’s judgment was not final because the juvenile court had not addressed several outstanding contempt motions. A.C., 34 So.3d at 1287. The juvenile court subsequently denied any outstanding contempt motions, and the mother again appealed the juvenile court’s judgment to this court.

The facts and procedural history of this case were explained in A.C. as follows:

“At the time of the child’s birth in 2003, the mother was 18 years old. The mother, the grandmother, and D.C., the child’s maternal grandfather (from whom the grandmother was later divorced) were all residents of Louisiana. When the child was 11 months old, the mother voluntarily relinquished custody of the child to the grandmother. On August 3, 2004, the District Court of Livingston Parish, Louisiana, awarded custody of the child to the grandmother for a three-year period ending August 1, 2007. Soon after the Louisiana court entered that judgment, the mother left Louisiana. In May 2006, the grandmother and the child moved to Dothan, Alabama.
“On April 26, 2007, the grandmother filed in the Houston Juvenile Court a petition alleging that she had had legal custody of the child since August 3, 2004, pursuant to a Louisiana judgment, a copy of which she attached to her petition. The grandmother further alleged that the mother was aware that, under the terms of that judgment, the grandmother’s custody rights were due to expire on August 1, 2007, and that the mother might ‘have plans to attempt to take the child at that time’; that the mother was unstable and unfit to have custody of the child because she had a history of drug abuse; that the mother had not seen the child since January 5, 2006, had not telephoned the child since April 21, 2007, and had not provided support for the child; that the mother was currently a resident of Alaska; that the whereabouts of the man believed to be the child’s biological father were unknown; and that it was in the child’s best interest to remain in the custody of the grandmother. On the day the petition was filed, the juvenile court entered an order awarding the grandmother pendente lite custody of the child.
“On June 28, 2007, the mother answered the grandmother’s petition, filed a counterpetition for custody of the child, and requested that the court order a home study of her residence in Alaska. The mother acknowledged that she had voluntarily relinquished custody of the child in 2004; she asserted that she and the grandmother had agreed that the child would be in the grandmother’s temporary custody for three years so that the mother ‘could become drug free and stable in her life.’ The mother further alleged that she had ‘cleaned up her life, [was] gainfully employed working four jobs, [had] a stable home, and [was] ready, willing, and able to abide by the agreement she made three years ago’; that her alleged failure to have kept in touch with the child was due to the grandmother’s denial of contact and the great distance between Alabama and Alaska; and that the grandmother’s assertions as to the mother’s unfitness were based upon ‘events that led up to the August 3, 2004 agreement and are not otherwise supported by any factual basis.’ On July 24, 2007, the juvenile court entered an order continuing pen-dente lite custody with the grandmother, directing the Houston County Department of Human Resources (‘DHR’), via its counterpart in Alaska, to conduct a home study of the mother’s residence, and allowing the mother biweekly telephone contact and supervised visitation with the child.
“In December 2007, the mother and her younger daughter, M.J., who had been born in October 2006, moved to Dothan so that the mother could attempt to establish a relationship with the child. The mother secured a job as an apprentice electrician at the Farley Nuclear Power Plant and began work in January 2008. She obtained an apartment in Dothan and made day-care arrangements for her younger daughter, M.J. The mother and the grandmother had disagreements over the amount and type of visitation that the mother should have with the child, and, on January 24, 2008, the juvenile court ordered specific times for the mother’s visitation with the child, stating that the parties were entering ‘a transitional phase toward reunification’ of the mother with the child. The court directed that the visits be supervised by Dr. Lynn Suggs, a licensed professional counselor.
“On February 8, 2008, the mother filed a contempt motion, alleging that the grandmother had refused to allow the mother to visit the child with Dr. Suggs present. The juvenile court entered an order on February 14, 2008, continuing a hearing on the contempt motion to March 27, 2008.
“On February 21, 2008, the grandmother moved to strike the mother’s contempt motion and moved the court to order that the mother have an independent psychological evaluation. On March 4, 2008, the mother filed an objection to the grandmother’s motion that she have a psychological evaluation, asserting that the parties had agreed to carry out a reunification plan and that the grandmother was reneging on the agreement, because, the mother alleged, all the grounds listed in the grandmother’s motion predated the parties’ agreement to work towards reunification. On March 27, 2008, the juvenile court ordered both the mother and the grandmother to undergo psychological evaluations. The court did not rule on the mother’s February 8, 2008, contempt motion.
“On April 17, 2008, the juvenile court granted the mother weekend daytime visitation rights. On April 23, 2008, the grandmother moved the court to issue a temporary restraining order to prevent the mother from taking the child out of State. On May 6, 2008, the mother moved for overnight visitation, attaching to her motion a copy of her psychological evaluation conducted by a clinical psychologist, Dr. Melanie Cotter. On May 8, 2008, the juvenile court referee ordered the mother not to remove the child from the jurisdiction of the court pending further orders, and the referee set a hearing on all other pending motions for June 26, 2008. On May 16, 2008, the grandmother objected to the mother’s having overnight visitation with the child, alleging that the child’s safety was at risk because the mother had previously accused her father, D.C., of sexual abuse, and yet had allowed D.C. to visit her and to stay overnight in her home since she had moved to Dothan. On June 3, 2008, the grandmother moved the court to hold the mother in contempt for taking the child out of state to Dr. Suggs’s home in Georgia. On June 4, 2008, the mother moved the court to hold the grandmother in contempt for denying her visitation with the child. Following a hearing on June 26, 2008, the juvenile court granted the mother overnight visitation with the child on alternating weekends and ordered that the child have no contact with D.C. The record does not indicate that the court ruled on any of the three pending contempt motions.
“On July 8, 2008, D.C., who was still a resident of Louisiana, moved to intervene, seeking grandparent visitation with the child. The same day, the grandmother moved the court to order the mother to pay child support pursuant to Rule 32, Ala. R. Jud. Admin. On September 12, 2008, the mother filed a second petition for custody of the child and moved the court to consolidate a hearing on her petition with the hearing on the grandmother’s request for child support.
“On September 29, 2008, the mother moved for an emergency hearing on her custody petition, asserting that the grandmother’s ‘bizarre and delusional’ behavior had put the child at risk of serious injury. The mother alleged, among other things, that the grandmother had participated with K.C., the child’s maternal aunt, in distributing an ‘Amber Alert’ e-mail message, falsely reporting that the mother’s younger daughter, M.J., had been abused and neglected and was missing. The mother also alleged that the grandmother had falsely reported to DHR that the child had been sexually abused by the mother and D.C. Following a hearing on September 30, 2008, the juvenile court ordered DHR to report to the court its finding with respect to the sexual-abuse complaint. It also ruled that the mother’s overnight weekend visitation would continue pending further orders of the court. On October 1, 2008, the grandmother petitioned for custody of M.J., asserting that M.J. was dependent. On October 3, 2008, the mother left Dothan, rented a mobile home near D.C.’s home in Louisiana, and filed a custody petition in a Louisiana court, seeking legal custody of M.J.”

34 So.3d at 1282-1284 (footnote omitted).

On March 24, 2009, the juvenile court entered a judgment declaring the child dependent, awarding the grandmother custody of the child, and awarding the mother visitation. The juvenile court made the following findings of fact and conclusions of law in its judgment:

“[The mother] voluntarily relinquished custody of [the child] to [the grandmother] on August 3, 2004, in the State of Louisiana. [The child] was approximately eleven months old at this time. This transfer of custody was approved by the Louisiana court, which ordered that [the grandmother] would retain custody of [the child] for a period of three years. [The child] has since resided with [the grandmother] for over five years.
“The evidence at trial established that the primary reason for the transfer of [the child’s] custody from [the mother] to [the grandmother] was [the mother’s] drug use and lack of stability. Subsequent to relinquishing custody of [the child], [the mother left Louisiana and] traveled to various states and for approximately one year — most of 2006— [the mother’s] whereabouts were unknown. During the three years following the Louisiana order, [the mother] had little contact with [the child] and provided no support on her behalf.
“At trial, [the mother] attempted to prove that she had attained a stable lifestyle and that she is no longer using drugs, as evidenced by negative drug screens for the past two and one-half years. She testified that she moved to Dothan and worked for some time here as an electrician’s apprentice, earning $11.38 per hour at the nuclear plant. However, by the time of the hearing, she had moved to Louisiana to get better work and to be near her father. [The mother] presented testimony from a [Houston County Department of Human Resources] social worker who testified that she had no concerns with [the child’s] custody being returned to [the mother]. [The mother] also called as a witness Dr. Lynn Suggs, a licensed professional counselor, who testified as to [the mother’s] efforts to establish a relationship with [the child].
“[The grandmother] disputed and discounted [the mother’s] attempts to rehabilitate herself and testified that [the mother] had not successfully established a mother-daughter relationship with [the child]. [The grandmother] also presented the testimony of Dr. David Ghostley, a psychologist who had evaluated [the mother and the child]. Dr. Ghostley testified that the results of [the mother’s] MMPI [Minnesota Multiphasic Personality Inventory] were not valid due to an elevation on the ‘lie scale,’ a built-in mechanism within the MMPI used to determine whether persons taking that inventory are providing truthful responses. Dr. Ghostley also testified that it would not be in [the child’s] best interests to be removed from the custody of [the grandmother] at this time. [The grandmother] also questioned the credibility of the testimony presented by Dr. Suggs and attempted to show by cross-examination of Dr. Suggs that [the mother] and Dr. Suggs had developed a personal relationship, as demonstrated in part by the fact that Dr. Suggs and her husband had traveled to Alaska, at [the mother’s] expense, when Dr. Suggs first met [the mother] to assist her in this case.
“During the course of the trial, [the child’s] father also testified. Due to his extremely limited contact with [the child] and his failure to show interest in maintaining a relationship with [the child], the court finds that he is not a suitable person to have custody of [the child] and that there is no reason to believe that he is able or willing to support or nurture [the child] or provide for her welfare at this time.
“... [The child’s] case presents serious and difficult issues. On one hand, [the mother] has made efforts at rehabilitation and has demonstrated an interest in parenting [the child]. On the other hand, the court cannot turn a blind eye to the tragic facts and circumstances— for which [the mother] is responsible— which have created the difficulties involving [the child’s] custody. Ultimately, the issue this court must address is whether the relatively recent emergence of [the mother] as an interested parent is sufficient to prevent a finding of dependency. Upon consideration of the evidence and testimony in this case, the court decides this issue adversely to [the mother] and does find by clear and convincing evidence that [the child] is a dependent child.”

The mother first argues that the juvenile court lacked subject-matter jurisdiction over the case, because, the mother argues, the grandmother’s petition was a petition seeking custody, not a petition alleging dependency, and, as such, it was insufficient to invoke the jurisdiction of the juvenile court. We agree. “We review de novo whether the trial court had subject-matter jurisdiction.” Solomon v. Liberty Nat'l Life Ins. Co., 953 So.2d 1211, 1218 (Ala.2006). Alabama Code 1975, former § 12-15-30(a), provided that “[t]he juvenile court shall exercise exclusive original jurisdiction of proceedings in which a child is alleged to be delinquent, dependent or in need of supervision.” Alabama Code 1975, former § 12-15-1(10), defined a dependent child as a child:

“a. Who, for any reason is destitute, homeless, or dependent on the public for support; or
“b. Who is without a parent or guardian able to provide for the child’s support, training, or education; or
“c. Whose custody is the subject of controversy; or
“d. Whose home, by reason of neglect, cruelty, or depravity on the part of the parent, parents, guardian, or other person in whose care the child may be, is an unfit and improper place for the child; or
“e. Whose parent, parents, guardian, or other custodian neglects or refuses, when able to do so or when such service is offered without charge, to provide or allow medical, surgical, or other care necessary for the child’s health or well-being; or
“f. Who is in a condition or surroundings or is under improper or insufficient guardianship or control as to endanger the morals, health, or general welfare of the child; or
“g. Who has no proper parental care or guardianship; or
“h. Whose parent, parents, guardian, or custodian fails, refuses, or neglects to send the child to school in accordance with the terms of the compulsory school attendance laws of this state; or
“i. Who has been abandoned by the child’s parents, guardian, or other custodian; or
“j. Who is physically, mentally, or emotionally abused by the child’s parents, guardian, or other custodian or who is without proper parental care and control necessary for the child’s well-being because of the faults or habits of the child’s parents, guardian, or other custodian or their neglect or refusal, when able to do so, to provide them; or
“k. Whose parents, guardian, or other custodian are unable to discharge their responsibilities to and for the child; or
“l. Who has been placed for care or adoption in violation of the law; or
“m. Who for any other cause is in need of the care and protection of the state; and
“n. In any of the foregoing, is in need of care or supervision.”

In order for a child to be declared dependent, the juvenile court must find that one of the alternative bases listed in subsections a. through m. of former § 12-15-1(10) exists and that the condition in subsection n. that the child “is in need of care or supervision” has been met. J.W. v. N.K.M., 999 So.2d 526, 532 (Ala.Civ.App.2008).

The grandmother’s petition was submitted along with a preprinted form supplied by the juvenile court. The grandmother checked a box on the preprinted form indicating that the child was dependent. In her petition, titled as a “petition for custody,” the grandmother alleged that “the minor child has resided in [the grandmother’s home] since March of 2004, and [that the grandmother] has had legal custody of [the child] since August 3, 2004. Said custody was granted in the 21st Judicial District Court of the Parish of Livingston, State of Louisiana.” The grandmother also alleged that the Louisiana custody order would expire on August 1, 2007, that the grandmother believed that the mother would attempt to regain custody of the child at that time, and that the mother was unfit to have custody of the child. The grandmother further alleged in her petition that, “[d]ue to the mother’s unstable history and her complete lack of contact and support for the [child,] the [grandmother] believes it would be in the child’s best interest to remain in the custody of the [grandmother].” The grandmother then requested that the juvenile court award the grandmother temporary and permanent legal custody of the child.

In J.W. v. N.K.M., 999 So.2d 526 (Ala.Civ.App.2008), and T.T.T. v. R.H., 999 So.2d 544 (Ala.Civ.App.2008), this court considered whether a juvenile court has subject-matter jurisdiction over a dependency petition when a mother has left a child in the care of relatives and has little subsequent contact with the child. In both J.W. and T.T.T., this court held that the juvenile court had subject-matter jurisdiction over the petition. This case, however, can be distinguished from both of those cases.

In J.W., the child’s great-aunt filed a dependency petition, alleging that the child’s mother had left the child in the care of relatives for most of the child’s life and that the child had lived with the great-aunt for the past year. J.W., 999 So.2d at 527. The great-aunt alleged in an amended complaint that the mother had abandoned the child. Id. In holding that the juvenile court had subject-matter jurisdiction oyer the great-aunt’s petition, we noted that in that case there had been no transfer of legal custody of the child pursuant to a court order to the great-aunt or another relative; the great-aunt had only physical custody of the child. Id. at 535. We went on to conclude that the great-aunt’s allegations that the mother had simply left the child in the care of relatives, that the mother had visited the child infrequently, and that the mother had failed to provide financial support for the child were sufficient to invoke the dependancy jurisdiction of the juvenile court because the allegations, if proven to be true, would support a finding that the child was without a parent or guardian able to provide support for the child. Id.

In T.T.T., the mother of the child had been awarded sole custody of the child when the mother and the father divorced. T.T.T., 999 So.2d at 546. The mother subsequently died. Id. The maternal grandparents filed a dependency petition in the Baldwin Juvenile Court, alleging that the mother had left the child in the care of the maternal grandparents for several years and that the child “was dependent and in need of care and supervision because the child had no parent or guardian able to provide for her support.” Id. As in J.W., the maternal grandparents in T.T.T. did not have legal custody of the child pursuant to a court order; the maternal grandparents had only physical custody of the child. Id. Thus, the child did not have a legal guardian or custodian. This court held that the maternal grandparents’ allegations were sufficient to invoke the dependency jurisdiction of the juvenile court because the allegations of the maternal grandparents, if proven to be true, would show that the child was dependent. Id. at 548.

In both J.W. and T.T.T., the petitioning party was not the legal custodian of the child, even though the petitioning party in each case had physical custody of the child. In this case, unlike the petitioners in J.W. and T.T.T., the grandmother has had more than just physical custody of the child. The grandmother, pursuant to a court order, had legal custody of the child from 2004 through the time the grandmother filed her petition. This fact negates any implication that might be gleaned from the other allegations in the grandmother’s petition that the child is in need of additional care or supervision. See Ala.Code 1975, former § 12-15-52(c)(l) (providing that a petition for dependency must set forth with specificity “[t]he facts which bring the child within the jurisdiction of the court, the facts constituting the dependency, delinquency or need of supervision and that the child is in need of supervision, treatment, rehabilitation, care or the protection of the state, as the case may be”).

Additionally, although the grandmother’s petition contains allegations concerning the mother that, if proven to be true, would show that the mother was unfit or incapable or caring for the child, the grandmother’s allegation that the child has, at all times, been in the legal custody of the grandmother, pursuant to a court order, would preclude a finding by the juvenile court that the child is “without a parent or guardian able to provide for the child’s support, training, or education.” Former § 12 — 15—l(10)(b). There are also no allegations in the grandmother’s petition that would support a finding of dependency based on any of the other grounds listed in former § 12-15-1(10), and the evidence at trial did not establish that the child has been without proper care and supervision during the time the grandmother has had legal custody of the child or that the child is in need of care and supervision beyond that already being provided by the grandmother.

This case is, in essence, a custody dispute between the grandmother, who currently has custody of the child and who wishes to retain custody of the child, and the mother, who wishes to gain custody of the child. As such, the circuit court was the proper court in which to file the petition. The circuit court could have then determined which party should have custody of the child under Ex parte Terry, 494 So.2d 628 (Ala.1986).

Because of the grandmother’s status as the legal custodian of the child, the facts alleged in the grandmother’s petition could not support a finding that the child was dependent, and, thus, the allegations in the grandmother’s petition were insufficient to invoke the subject-matter jurisdiction of the juvenile court. Therefore, we dismiss the mother’s appeal with instructions for the juvenile court to vacate its judgment. Riley v. Pate, 3 So.3d 885, 838 (Ala.2008).

APPEAL DISMISSED WITH INSTRUCTIONS.

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

BRYAN and MOORE, JJ., concur in the result, -without writings.

      . The juvenile court determined that M.J. was not dependent and that M.J. was in the custody of his father, who was providing proper care for M.J. No issue with respect to the alleged custody or dependency of M.J. is presented in this appeal.

      . By Act No. 2008-277, Ala. Acts 2008, the Alabama Legislature, among other things, amended and renumbered the statutes governing juvenile proceedings, previously codified at Ala.Code 1975, § 12-15-1 et seq., and enacted the Alabama Juvenile Justice Act ("AJJA”), codified at Ala.Code 1975, § 12-15-101 et seq. The effective date of the AJJA is January 1, 2009. Because the grandmother's petition was filed before the effective date of the AJJA, the AJJA does not apply to this case.

      . See supra note 2.

      . Because we determine that the juvenile court did not have subject-matter jurisdiction over the grandmother’s petition, we pretermit discussion of the remaining issues in the mother's appeal.