author: THOMAS, Judge.

text:
    Greg COLBERT and Beth Colbert v. FIRST NATIONAL BANK OF ATMORE d/b/a First National Bank and Trust.
    2090842.
    Court of Civil Appeals of Alabama.
    Feb. 11, 2011.
    Certiorari Denied Aug. 5, 2011 Aabama Supreme Court 1100611.

      Patrick J. Ballard of Ballard Law Office, Birmingham, for appellants.
    Jeffery L. Luther and D. Trice Stabler of Luther, Crowe & Rainey, P.C., Mobile, for appellee.
   THOMAS, Judge.

Greg Colbert and Beth Colbert appeal from a judgment as a matter of law (“JML”) entered by the Escambia Circuit Court in favor of the First National Bank of Atmore d/b/a First National Bank and Trust (“the Bank”). We affirm.

Facts and Procedural Histoi"y

The Colberts own a two-story building in downtown Atmore. The Bank owned a one-story building located to the east of the Colberts’ building; one wall of the Bank’s building abutted one of the outer walls of the Colberts’ building. The Bank’s building already existed when the Colberts’ building was constructed. In late April or early May 2005, the Bank informed the Colberts that it intended to demolish its building. The Bank offered to purchase the Colberts’ building; however, the parties could not agree on a purchase price. After the purchase negotiations ended, the Bank continued with its demolition plans.

Before demolishing its building, the Bank hired a surveying company to determine the boundary lines of its property. The surveying company determined that the boundary line between the Bank’s property and the Colberts’ property ran between the Colberts’ building and the Bank’s building. The Colberts also hired a surveying company to survey the boundary of their property. The survey company hired by the Colberts also determined that the property line between the Colberts’ property and the Bank’s property ran between the two buildings.

The Bank hired Gulf Construction, LLC, to demolish its building. Gulf initially demolished all of the Bank’s building except for the wall that abutted the Colberts’ building. In October 2005, Gulf began demolishing the abutting wall by hand, using small jackhammers. After the first day of demolition of the abutting wall, the Col-berts expressed concern to the Bank over the condition of the wall of their building that was being revealed by the demolition of the wall of the Bank’s building. The wall of the Colberts’ building had bricks that had been laid unevenly and some of the joints lacked mortar. The Bank decided to continue to demolish its wall.

On October 30, 2005, as the demolition work continued, Gulf uncovered a portion of the Colberts’ wall where some of the bricks were missing, resulting in a hole in the Colberts’ wall. Gulf stopped its demolition efforts and notified the Colberts and the Bank of the condition of the Colberts’ wall. No further demolition was done on the Bank’s wall.

On April 14, 2007, the Colberts filed a complaint in the trial court asserting claims of fraud, negligence, wantonness, “willfulness,” and trespass against the Bank and fictitiously named parties. In their complaint, the Colberts alleged that the Bank had damaged their property so that rainwater had begun entering the building through the wall and that they had suffered disruptions to their lives and had suffered mental anguish. The Col-berts requested that the trial court award them compensatory damages, punitive damages, interest, costs, and an attorney fee. The Bank answered the Colberts’ complaint, denying all the Colberts’ material allegations.

The Bank filed a motion for summary judgment on all the Colberts’ claims. The trial court denied the Bank’s motion for a summary judgment, and the case proceeded to a jury trial. At the close.of the Colberts’ case, the Bank moved the trial court for a JML. After hearing extensive argument by counsel for both parties, the trial court entered a JML in favor of the Bank on all the Colberts’ claims. The Colberts appealed to the Alabama Supreme Court. Our supreme court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

Standard of Review

“When reviewing a ruling on a motion for a JML, this Court uses the same standard the trial court used initially in deciding whether to grant or deny the motion for a JML. Palm Harbor Homes, Inc. v. Crawford, 689 So.2d 3 (Ala.1997). Regarding questions of fact, the ultimate question is whether the nonmovant has presented sufficient evidence to allow the case to be submitted to the jury for a factual resolution. Carter v. Henderson, 598 So.2d 1350 (Ala.1992). The nonmovant must have presented substantial evidence in order to withstand a motion for a JML. See § 12-21-12, Ala.Code 1975; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). A reviewing court must determine whether the party who bears the burden of proof has produced substantial evidence creating a factual dispute requiring resolution by the jury. Carter, 598 So.2d at 1353. In reviewing a ruling on a motion for a JML, this Court views the evidence in the light most favorable to the nonmov-ant and entertains such reasonable inferences as the jury would have been free to draw. Id. Regarding a question of law, however, this Court indulges no presumption of correctness as to the trial court’s ruling. Ricwil, Inc. v. S.L. Pappas & Co., 599 So.2d 1126 (Ala.1992).”

Waddell & Reed, Inc. v. United Investors Life Ins. Co., 875 So.2d 1143, 1152 (Ala.2003).

Analysis

I. Direct and indirect trespass

The Colberts argue on appeal that the trial court erred when it entered a JML on their trespass claims. We will first address the Colberts’ argument that they presented substantial evidence in support of their direct-trespass claim. “ ‘Trespass’ has been defined as ‘[a]ny entry on the land of another without express or implied authority.’ ” Central Parking Sys. of Alabama, Inc. v. Steen, 707 So.2d 226, 228 (Ala.1997)(quoting Foust v. Kinney, 202 Ala. 392, 393, 80 So. 474, 475 (1918)). The Colberts first argue that the Bank trespassed on their property by removing the Bank’s wall because, the Col-berts say, they presented substantial evidence indicating that part of the Bank’s wall was located on the Colberts’ property.

At trial, Sidney Orrell, a professional land surveyor, testified that he had been hired by the Bank to survey the boundary lines of the Bank’s property. Orrell testified that he had determined that the boundary line between the Bank’s property and the Colberts’ property ran down the face of the wall of the Colberts’ building, placing the Bank’s building solely on its property and the Colberts’ building solely on their property. According to Orrell, he reached his conclusion regarding the location of the boundary line after examining the old plats and deeds to the property and by then surveying the property, taking measurements and looking for preexisting boundary-line markers.

Orrell stated that he had placed a cap and nail at one corner of the property line between the two properties. According to Orrell, the cap provides a reference point for the boundary line between the two properties. Orrell testified with respect to the placement of the cap and nail:

“When you have two buildings that are joined together it’s impossible to strike a line between two points because two buildings — there was [no] air between these buildings. They were butted together so, you know, we put our points to the best possible way we can in line with the face of those buildings where they join together.”

When asked by the Bank’s attorney whether “regardless of where a photograph may reflect that that [cap and nail] is located the bottom line is that the property line, according to your map, shows that it divides those two buildings and runs down the face of [the Colberts’] wall,” Or-rell responded that the Bank’s attorney was correct.

William Whittle, a professional land surveyor who had been hired by the Colberts, also testified at trial. Whittle stated that the Colberts had hired him to determine the location of the boundary line between the Colberts’ property and the Bank’s property. Whittle testified that he had determined that the property line between the Bank’s property and the Colberts’ property ran down the face of the Col-berts’ building. According to Whittle, he had determined the location of the property line based on the location of the existing buildings on the block and the location of an original, iron pin that he had found. According to Whittle, the location of a corner marker, such as the cap and nail that had been placed by Orrell, was a piece of information that could be used in determining the boundary line of a property; however, he said, it was not controlling.

The Colberts assert that the location of the cap and nail placed by Orrell shows that part of the Bank’s wall was located on the Colberts’ property. This assertion is not supported by the testimony of Orrell or Whittle. Orrell testified that he placed the corner marker as best as he could to represent the property line that he had calculated. Whittle testified that placement of corner markers such as the cap and nail at issue were only a piece of information used to determine a property line. Both surveyors testified that the property line between the Bank’s property and the Colberts’ property ran down the face of the Colberts’ building. Thus, the Colberts assertion regarding the location of the cap and nail does not represent substantial evidence indicating that the Bank’s wall was partially located on the Colberts’ property. Therefore, the Col-berts have not provided substantial evidence indicating that the Bank entered upon the Colberts’ property when the Bank demolished its wall.

The Colberts also claim that they presented substantial evidence in support of their claim of direct trespass because, the Colberts say, they presented evidence indicating that the Bank crossed onto the Col-berts’ property and created a hole in the wall of the Colberts’ building when the Bank demolished the abutting wall of its building. However, the evidence pointed to by the Colberts does not support that contention. Ms. Colbert did not testify that the Bank had created a hole in the Colberts’ wall. Instead, she testified that the Bank had “revealed a hole in the [Col-berts’] wall.” She also testified that the hole “had started out as a small place on the far end and [that they could] see it being revealed.” Ms. Colberts’ testimony that the hole had been revealed supports an inference that the hole in the wall preexisted the demolition of the Bank’s wall and that the hole became apparent once the Bank’s wall was removed, not that the Bank created the hole in the Colberts’ wall.

The Colberts also rely on the testimony of Myles Reed, a contractor and friend of the Colberts, to support their contention that they presented substantial evidence indicating that the Bank created a hole in the Colberts’ wall. The Colberts’ counsel presented a photograph of the wall to Reed and asked whether it appeared that the Colberts’ wall had been damaged. Reed stated:

“It appears that [the Bank] got a little carried away in this area right in here. If this plane is the same as this plane, which it appears to be, looks like they got into — you know, got into his wall from here, you know.”

On cross-examination, Reed admitted that he was basing his opinion solely on the photograph, that he had not personally inspected the alleged damage to the Col-berts’ wall, and that he was uncertain which portions of the wall in the photograph were the Colberts’ wall and which were the remaining parts of the Bank’s wall. Reed answered “no” when asked by the Bank’s counsel:

“Okay. You haven’t gone back out there to inspect it to verify that that is indeed the case, that those bricks are indeed— this area where we see missing bricks are bricks that were originally in the Colberts’ wall, have you?”

Reed’s testimony that the Bank had caused the hole in the Colberts’ wall was based solely on his viewing a photograph and apparently concluding that, because there was a hole in the wall, it must have been caused by the Bank. Reed’s testimony is mere speculation as to the cause of the hole in the Colberts’ wall. “‘[Evidence which affords nothing more than mere speculation, conjecture, or guess is wholly insufficient to warrant submission of the case to the jury.’ ” Turner v. Azalea Box Co., 508 So.2d 253, 254 (Ala.1987) (quoting Roberts v. Carroll, 377 So.2d 944, 946 (Ala.1979)). Therefore, Reed’s testimony does not provide substantial evidence in support of the Colberts’ claims.

Because the Colberts did not present substantial evidence to the trial court indicating that the Bank had entered their property by demolishing its wall or by damaging the Colberts’ wall, the trial court’s JML on the Colberts’ direct-trespass claim is due to be affirmed.

The Colberts next argue that the trial court erred when it entered a JML in favor of the Bank on the Colberts’ indirect-trespass claim. The Colberts assert that, when the Bank demolished its wall, it exposed the Colberts’ wall to rainwater and that that rainwater intruded through the Colberts’ wall, damaging their building. Thus, the Colberts assert, the Bank’s alteration of its property, such that it allowed rainwater to enter the Colberts’ property, constituted an indirect trespass by the Bank.

In support of their argument, the Colberts cite W.T. Ratliff Co. v. Henley, 405 So.2d 141 (Ala.1981). In Ratliff, the Alabama Supreme Court stated that in order to recover for indirect trespass a plaintiff must prove “ 1) an invasion affecting an interest in the exclusive possession of his property; 2) an intentional doing of the act which results in the invasion; 3) reasonable foreseeability that the act done could result in an invasion of plaintiffs possesso-ry interest; and 4) substantial damages to the res.’ Ratliff, 405 So.2d at 145 (quoting Borland v. Sanders Lead Co., 369 So.2d 523, 529 (Ala.1979)). The Ratliff court also stated that “ ‘ “it is not necessary that the foreign matter should be thrown directly and immediately upon the other’s land. It is enough that an act is done with knowledge that it will to a substantial certainty result in the entry of the foreign matter.” ’ ” Ratliff, 405 So.2d at 145 (quoting Rushing v. Hooper-McDonald, Inc., 293 Ala. 56, 59, 300 So.2d 94, 97 (1974), quoting in turn Restatement (Second) of Torts § 158, “Liability for Intentional Intrusions on Land” (1965)). Our supreme court held in Ratliff that a landowner was liable for trespass when that landowner had placed sand and gravel on its property such that that landowner was substantially certain that the sand and gravel would flow onto an adjoining landowner’s property.

The Colberts also cite Johnson v. Washington, 474 So.2d 651 (Ala.1985). The defendant landowner in Johnson had removed underbrush and trees from his property and had constructed a paved driveway. Johnson, 474 So.2d at 653. The changes to the defendant landowner’s property changed the natural flow of water on his property, causing it to be channeled onto the plaintiff landowner’s property. Id. Our supreme court held that the defendant landowner could be held liable for indirect trespass, noting that liability may lie when “an upper proprietor ... channels surface water onto the property of a lower proprietor, when it otherwise would have been scattered and diffused, and by so doing causes damage to the lower proprietor.” Id.

In this case, unlike in Ratliff, there is no evidence indicating that the Bank placed any material on its property with the knowledge that it would flow onto the Colberts’ property. This case is also unlike Johnson because there is no evidence indicating that the Bank collected or channeled water onto the Colberts’ property. The rainwater that the Colberts claim entered their property as a result of the Bank’s demolition of its wall had never entered onto the Bank’s property, and the Bank had not in any way changed the natural course of the rainwater or channeled the rainwater onto the Colberts’ property. Thus, we find no legal support for the Colberts’ indirect-trespass claim. Accordingly, the trial court’s JML on the Colberts’ indirect-trespass claim is due to be affirmed.

II. Negligence, wantonness, and “wilfulness” claims

The Colberts’ claims of negligence, wantonness, and “wilfulness” are all dependent on the Colberts’ presenting substantial evidence indicating that the Bank damaged the Colberts’ building. See Armstrong Bus. Servs., Inc. v. AmSouth Bank, 817 So.2d 665, 679 (Ala.2001) (“The elements of a negligence claim are a duty, a breach of that duty, causation, and damage.”); Alfa Mut. Ins. Co. v. Roush, 723 So.2d 1250, 1256 (Ala.1998) (“ Wantonness’ has been defined by this Court as the conscious doing of some act or the omission of some duty, while knowing of the existing conditions and being conscious that, from doing or omitting to do an act, injury will likely or probably result.”). The Colberts argue on appeal that the Bank damaged their building by exposing the exterior wall of the Colberts’ building, thereby allowing rainwater to penetrate the wall and that the Bank directly damaged the structure of the wall.

We have already concluded that the Col-berts did not present substantial evidence indicating that the Bank directly damaged the Colberts’ wall. Therefore, the Col-berts’ claim of direct damage to the structure of their wall cannot form the basis for their negligence, wantonness, or “wilfulness” claims.

We now turn to the Colberts’ argument that the Bank damaged the Colberts’ wall by removing the Bank’s wall, thereby allowing rainwater to contact the wall and, consequently, to enter the Colberts’ building. In Nabers v. Wise, 241 Ala. 612, 4 So.2d 149 (1941), the Alabama Supreme Court stated:

“When one adjoining lot owner builds on his own property, one wall flush with the line, but resting wholly on his own property, the adjoining owner acquires no interest nor easement in such wall. He cannot acquire such interest other than by grant, or by prescription raising a presumption of a grant. He cannot, as of right, use such wall as a common wall, or as lateral support for a building thereafter erected on his own lot. The owner of the wall may raze same at will. Bisquay v. Jeunelot, 10 Ala. 245, 44 Am.Dec. 483 [ (1846) ]; Moody v. McClelland, 39 Ala. 45, 84 Am.Dec. 770 [ (1863) ].”

241 Ala. at 616, 4 So.2d at 149. As we noted above, the evidence at trial showed that the Bank’s wall was located entirely on its own property. Thus, the Bank could demolish its wall at will. Id. The only duty the Bank owed the Colberts was to not damage the wall of the Colberts’ building when it removed its own wall. The Colberts’ argument appears to be that the Bank had a duty to protect the Col-berts from the preexisting condition of the Colberts’ own wall. We find no support for this proposition in the authorities cited by the Colberts. See Tucker v. Nichols, 431 So.2d 1263, 1265 (Ala.1983) (stating that in order to secure a reversal “the appellant has an affirmative duty of showing error upon the record”); see also Schiesz v. Schiesz, 941 So.2d 279, 289 (Ala.Civ.App.2006) (“It is not the function of this court to advocate a position on behalf of an appellant or to create a legal argument for the appellant.”). Therefore, the trial court’s JML on the Colberts’ claims of negligence, wantonness, and “wilfulness” is due to be affirmed.,

The trial court did not err when it entered a JML in favor of the Bank on all the Colberts’ claims; therefore, we affirm the trial court’s judgment.

AFFIRMED.

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

      . The Colberts later amended their complaint, substituting Gulf for one of the fictitiously named parties. Gulf later entered into a pro tanto settlement with the Colberts. Pursuant to the settlement, the trial court dismissed Gulf from the lawsuit.

      . The trial court also entered a JML in favor of the Bank on the Colberts’ fraud claim. The Colberts do not present any argument on appeal concerning their fraud claim; therefore, they have abandoned that claim. See Newson v. Protective Industrial Ins. Co., 890 So.2d 81, 86 (Ala.2003).

      . Because we determine that the Colberts did not present substantial evidence in support of their claims, we pretermit the Colberts’ remaining arguments on appeal. See Favorite Market Store v. Waldrop, 924 So.2d 719, 723 (Ala.Civ.App.2005).


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    Ex parte CITY OF BIRMINGHAM. (In re Sean F. Hudson v. City of Birmingham).
    2091117.
    Court of Civil Appeals of Alabama.
    Feb. 18, 2011.
    Rehearing Denied June 10, 2011.
    Certiorari Denied Aug. 5, 2011 Alabama Supreme Court 1101092.

      Jacinda D. Anderson, asst, city atty., Birmingham, for petitioner.
    John P. Graves, Birmingham, for respondent.
   MOORE, Judge.

The City of Birmingham seeks certiorari review of a judgment entered by a three-judge panel of the Jefferson Circuit Court reversing a decision of the Jefferson County Personnel Board terminating the employment of Sean F. Hudson. We reverse the decision of the three-judge panel.

Facts and Procedural History

Hudson was employed as a police officer by the City of Birmingham Police Department (“the BPD”) for approximately 12 years; he had been assigned to work at the Birmingham International Airport (“the airport”) for approximately 10 of those 12 years. Hudson’s duties at the airport required him to monitor a locked gate at “Checkpoint C” on the morning shift. According to Hudson, the Transportation Security Administration (“TSA”), a component of the federal Department of Homeland Security, had taken over security at the airport in 2008. According to Edward Downing, the assistant federal security director for screening at TSA, when passengers at the airport travel through a checkpoint, there is certain property that passengers may not take onto an airplane. At that point, according to Downing, passengers have a choice — they can take the item out of the airport, they can place certain items in their luggage that goes “into the belly of the plane,” or they can abandon the item. If the passengers abandon the item, it is deposited by a TSA agent into a bin that is used specifically for collection of voluntarily abandoned property (“VAP”).

TSA Directive No. 200.51, regarding “Disposition of Lost or Unclaimed Personal Property Found in TSA-Occupied Spaces,” states in a footnote that “[l]ost personal property is distinct from prohibited items voluntarily abandoned to the TSA at screener checkpoints, also known as voluntarily abandoned property (VAP).” TSA Directive No. 200.52, regarding “Care, Handling, and Disposition of Voluntarily Abandoned Property,” states that “VAP deposited in collection bins shall not be recovered by, and will not be returned to, passengers. Upon voluntary abandonment of the prohibited item, the item immediately becomes the property of the Federal Government.” Directive No. 200.52 further instructs that VAP is to be segregated by TSA according to different category types. The first category, VAP with an estimated resale value of less than $500, “may be retained for official mission use only, transferred to another federal agency without reimbursement, donated, or abandoned or destroyed. If donations are authorized, they always take priority over destruction. A donation in lieu of destruction is authorized to public bodies only.” (Emphasis in original.) Downing testified that “official mission use” would include TSA functions; in other words, TSA can use the items in the VAP bin that are valued at less than $500 at the airport. He stated that “donated” in the directive means given away to the State of Alabama.

Column C on Attachment A to Directive No. 200.52, entitled “Disposition Guidance Table for [VAP] Prohibited Items,” includes a list of certain items that should be destroyed; some of the items included in that column have an asterisk next to them, indicating that those are “additional items that may be donated to a public body in lieu of Abandonment and Destruction.” Included in those items denoted with an asterisk are knives and box cutters, among other items. Column D on Attachment A lists items that are to be donated, and it includes screwdrivers, among other items.

Downing stated that the VAP bin is locked and that only TSA employees have access to the key to the lock on the VAP bin. Hudson testified, however, that, at one time, he had authorization to go into the VAP bin to take out dangerous items. He stated that TSA had supplied the police precinct with a key when it took over in 2003. According to Hudson, that key was lost, so he began to open the VAP bin any way he could. Hudson testified that he would take things out of the VAP bin if he needed them for his official use and that he had given some items to others to use in construction and for other official uses at Checkpoint C, but that he had never kept any of those items or taken them home with him. Hudson stipulated that he had opened the VAP bin with a screwdriver. Hudson testified that he knew that the area was videotaped and that he was being recorded. He stated that other police officers assigned to work at the airport also regularly accessed the VAP bin to obtain items therein and that it was standard operating procedure at the airport for them to do so. According to Hudson, the VAP bin was labeled “throwaway bin,” and he considered its contents to be trash.

Captain William John Crane testified that, at some point, he was the commander of the east precinct of the BPD and that he had overseen officers that were assigned to the airport. Captain Crane testified that, in his opinion, it is not important for him to know what the rules and regulations of the airport are because he relies on the BPD rules, which require his officers to turn in property that comes within the control of a police officer. Sergeant Matthew Rostowski, who had supervised Hudson and other officers working at the airport, testified that he did not recall seeing anything in the manuals of rules and regulations at the airport regarding VAP. Sergeant Rostowski testified that he had had a conversation with Hudson and Captain Crane regarding what to do with items that were found at the airport and that, according to BPD’s rules and regulations, officers are supposed to take any found property, to fill out a property inventory, and to take the property to the property room at the BPD headquarters. Sergeant Rostowski stated, however, that working in the airport creates a different working condition because property is constantly being found and he, Captain Crane, and Hudson were wrestling with the problem of discerning whether items were properly categorized as property found by the police department that they were taking charge of or whether those items were simply articles left by a passenger that needed to go to the lost and found area at the airport. Sergeant Rostowski stated that it could be said that, because of that problem, he had deviated from the normal rules and regulations of the BPD.

Tabitha Kline, Edward Lewis Hannon, Ronald Edward Youngblood, Jr., and Manual Diaz, all police officers employed by the BPD, testified that they had been assigned to the airport and that they had not received any instruction as to what to do with VAP. Preston Weed, who is also an officer with the BPD, had also been assigned to the airport. Officer Weed testified that, when TSA first assumed authority at the airport, it was making policies as it went along and that TSA had allowed the officers to take knives that had been abandoned and that, at one point, it was the standard operating procedure of TSA to allow police officers to take what they wanted from the property that had been abandoned by passengers. Another BPD police officer, Darryl Trucks, testified that he had been assigned to the airport and that one of the TSA agents had told him that TSA agents simply throw away the items that go into the VAP bin and that TSA does not have any use for those items.

Downing testified that, on May 30, 2009, he learned that, on several occasions, Hudson had opened the VAP bin with a screwdriver and had removed items. On June 2, 2009, Downing reported to the BPD that he had videotaped footage of Hudson forcing entry into the VAP bin. Sergeant David Grayson, who is assigned to the Internal Affairs Division of the BPD, testified that he initiated an investigation in response to Downing’s complaint. Sergeant Grayson testified that he had spoken with two airport maintenance workers who had received property from Hudson that had been taken from the VAP bin for them to use in construction or other repair work at the airport. Sergeant Grayson also interviewed a number of BPD officers who had been assigned to the airport. According to Sergeant Grayson, he determined from those interviews that, when TSA took over security at the airport, there may have been a transition period when there was not a clear understanding of how property was handled but that, once TSA took full control, the officers that he had interviewed had not been given any indication that they were allowed to remove property from the VAP bin. Sergeant Grayson stated that he determined that Hudson had broken into the VAP bin without a key, that Hudson did not have a right to use the items in the VAP bin, and that Hudson’s actions amounted to theft. Sergeant Grayson stated that, upon completing his investigation, he turned the matter over to BPD Police Chief A.C. Roper.

Hudson was given notice that possible personnel action, which could result in his suspension, demotion, or dismissal, was being contemplated against him and that a determination hearing was scheduled for July 7, 2009. Hudson was informed that he was charged with “entering” the locked VAP bin with a screwdriver, removing property therefrom, and giving property from the VAP bin to airport maintenance workers. Specifically, Hudson was charged with violating the Personnel Board of Jefferson County Rules and Regulations, including Rule 12.2(e), “Conduct unbecoming a Classified Employee”; Rule 12.2(g), “Incompetency or inefficiency”; Rule’ 12.2Q), “Neglect of duty”; Rule 12.2(J), “Violation of any rule or regulation of the Appointing Authority, or failure to comply with instructions made and given by a superior officer or supervisor”; Rule 12.2(m), “Violation of any of the provisions ... of these Rules”; and Rule 12.2(p), “Any'other legitimate and nondiscriminatory reason that constitutes good cause for disciplinary action, is reasonably specific, is consistent with ... these Rules and is not motivated by any non-work-related preference or animus for or against any person.” Hudson was also charged with violating additional BPD Rules and Regulations, including Section II of Procedure Number 109-3, which provides: “Members will direct or coordinate their efforts in carrying out the functions of the Department in such a manner as will tend to establish and maintain the highest standard of efficiency”; Section VI, Subsection A-8, of Procedure Number 110-2, regarding “Neglect or inattention to duty”; Procedure Number A-36, regarding “Any other act or omission contrary to good order and discipline or constituting a violation of any of the Rules and Regulations of the Department, or of any Department order”; and Section I of Procedure Number 116-41, regarding conversion of impounded property, which provides: “Members and/or employees of the Birmingham Police Department shall not, under any circumstances, manufacture, or destroy, or convert to his own use any evidence or other material found in connection with an investigation or any property taken or received for safekeeping.”

The determination hearing was held on July 7, 2009. Chief Roper and a number of deputy chiefs were present at the hearing. According to Chief Roper, the deputy chiefs sit through the determination hearing and discuss the case and give recommendations, but the ultimate decision is his. Chief Roper testified that he decided that Hudson’s employment should be terminated because the investigation revealed that Hudson had stolen property from the VAP bin and the BPD could not have its employees stealing. According to Chief Roper, Hudson did not have the right or authority to break open the locked VAP bin. Chief Roper testified, however, with regard to the alleged violation of BPD Procedure Number 116-41, that the items deposited into the VAP bin are not evidence, other material found in connection with an investigation, or property taken or received for safekeeping.

A number of the deputy chiefs who were present at the determination hearing testified at a subsequent hearing before a hearing officer that termination was appropriate because Hudson had stolen items. Although none of the deputy chiefs worked at the airport, they spoke to Hudson’s violations of the BPD’s rules without reference to the regulations of the airport or TSA. They each testified that the BPD’s rules do not differentiate between lost property and VAP.

The charges against Hudson were sustained, and Hudson was dismissed from his position as a police officer with the BPD, effective at the close of business on August 7, 2009. On August 10, 2009, Hudson appealed the BPD’s decision. A hearing was held on February 26, 2010, and, on March 15, 2010, the hearing officer filed his findings of fact and recommendation, which stated, in pertinent part:

“Respondent, Sean Hudson, a long term Police Officer for the City of Birmingham, was assigned to the Birmingham Airport.
“On June 2, 2009, Edwin Downing, Assistant Federal Security Director of Screening for the Transportation Security Administration (here[in]after ‘TSA’) filed a complaint that Hudson and another Birmingham Police Officer opened a locked property cabinet that was under TSA control and removed property without permission.
“Downing was called as a witness and testified that when one of his officers made him aware that some change had been removed from the locked cabinet, he reviewed videotapes of the TSA checkpoint at Terminal C and observed Hudson and another officer forcing their way into the TSA cabinet.
“Hudson stipulated that he had indeed entered the locked cabinet. Hudson testified that he thought it was okay to force his way into the cabinet as a form of ‘dumpster diving.’ Hudson testified that he gave away items recovered from this area to airport workers.
“However, regardless of motivation, Chief Roper testified [that] having police officers break into another’s property without authorization violated the City of Birmingham’s rules of deportment for Police Officers.
“Hudson contends that after 2001 and the establishment of the TSA, there was a lack of procedures and/or training regarding the disposal of ‘voluntary abandoned property.’ While that may have been true in 2001 and/or 2002, by 2009— some seven years later — Security Checkpoint C as testified to by Mr. Downing was firmly under TSA control. Hudson had no authority to take it upon himself to re-distribute the property, abandoned or otherwise, which had been turned over to the federal officials.
“Prior to terminating Mr. Hudson, Chief Roper testified that he reviewed the matter with Deputy Chiefs Fisher, Hinton, Lampkin and Tubbs (each of whom testified in support of the termination) and that Sergeant David Gray-son conducted an investigation as to the procedures for YAP property at the airport. Deputy Chief Tubbs testified that officers breaking into property without authority, ‘strikes at the integrity of the department.’ The other Deputy Chiefs testified to the same.
“Sergeant Grayson interviewed other officers assigned to the Birmingham airport who confirmed that it had been many years since Birmingham Police had any authority for ‘voluntary abandoned property1 given to TSA personnel.
“CONCLUSIONS
“The Birmingham Police Department established that Hudson’s conduct was without authority and violated standards expected for their officers. Even though Officer Hudson argued at the hearing that termination was too severe a penalty and there was a lack of training, the Police Department has to be allowed to make personnel decisions to uphold the department standards.
“RECOMMENDATION
“After viewing the entire record, I find that termination as implemented by the Police Department should be sustained.”

The Personnel Board of Jefferson County (“the Board”) entered an order on April 13, 2010, adopting the hearing officer’s findings of fact and recommendation, thereby affirming the BPD’s decision to terminate Hudson’s employment. Hudson filed a notice of appeal from the Board’s order to the Jefferson Circuit Court on April 21, 2010. On June 25, 2010, a hearing was set before a panel of three judges on August 13, 2010. See Act No. 248, § 22, Ala. Acts 1945, as amended by Act No. 684, Ala. Acts 1977 (stating that an appeal from the Board’s order lies in the circuit court and that the presiding judge of the circuit court shall assign the case to a panel of three judges for review). The three-judge panel entered an order on August 18, 2010, which stated, in pertinent part:

“The three (3) judge panel assigned to this case hereby unanimously orders, after review of the record and oral arguments, that Police Officer Sean F. Hudson be restored to his position as a police officer with the City of Birmingham with full back pay and benefits.
“The panel has determined that the termination of the plaintiff, Sean F. Hudson, was arbitrary and capricious. The panel heard testimony that no misappropriation for personal use was involved. The panel is convinced that, based upon the record and testimony, appropriate policies and procedures were not in place following the transition from the City of Birmingham to the Transportation Security Authority of the Department of Homeland Security.”

The City of Birmingham petitioned this court for a writ of certiorari on August 26, 2010.

Discussion

The City of Birmingham asserts that the three-judge panel erred by overturning the Board’s decision because, it argues, the Board’s decision was based on fixed standards and should be affirmed.

“When conducting certiorari review of a decision of a circuit court panel under § 22 of the Board’s enabling act, this court has stated the standard of review as follows:
“ ‘ “Under the appropriate standard of review for cases before this court on certiorari, this court is limited to a review of whether the circuit court properly applied the law and whether the decision is supported by any legal evidence.” Ex parte Jackson, 733 So.2d [456,] 457 [ (Ala.Civ.App.1999) ]. Our supreme court has also held that in addition to the foregoing, the trial court must review the record to ensure that there had been no violation of a party’s fundamental rights. Evans v. City of Huntsville, [580 So.2d 1323 (Ala.1991) ]. The scope of appellate review of administrative actions is narrow; therefore, “[t]he determination of the weight and credibility of the evidence presented is solely within the province of the Board.” Ex parte Personnel Bd. of Jefferson County, 440 So.2d [1106,] 1109 [ (Ala.Civ.App.1983) ].’
“Ex parte Dixon, 841 So.2d 1273, 1278 (Ala.Civ.App.2002). See also Ex parte Jackson, 733 So.2d 456, 457-58 (Ala.Civ.App.1999); Ex parte Cooper Green Hosp., 519 So.2d 1352, 1353 (Ala.Civ.App.1987); and Ex parte Smith, 394 So.2d 45, 48 (Ala.Civ.App.1981). Additionally, this court has stated:
“ ‘The Personnel Board acts as the trier of facts and has the duty to reach a determination regarding conflicting testimony. City of Mobile v. Mills, 500 So.2d 20 (Ala.Civ.App.1986). When the Board utilizes a hearing officer, his finding of facts is presumed to be correct. Coleman v. Alabama Alcoholic Beverage Control Board, 465 So.2d 1158 (Ala.Civ.App.1985).’
“Ex parte Cooper Green Hosp., 519 So.2d at 1353.”

Ex parte City of Birmingham, 7 So.3d 363, 367-68 (Ala.Civ.App.2008).

After reviewing the record before us, we agree with the City of Birmingham that the Board’s decision was supported by substantial evidence and that the three-judge panel erred by failing to affirm the Board’s decision. The testimony presented to the hearing officer indicated that, although there had been some confusion regarding the handling of VAP at the onset of TSA’s authority at the airport, the rules and regulations of TSA were clear that items in the VAP bin belonged to the federal government and were to be handled by TSA employees. Although Hudson presented some evidence indicating that it was standard operating procedure at the airport to access the VAP bin and that he had had authority and a key to access the bin, it was clear that Hudson no longer possessed a key to the locked bin and that he had accessed the bin by prying it open. Although it is arguable based on the evidence presented that Hudson could not be properly dismissed for violating the BPD’s rule prohibiting conversion of property for personal use, Hudson was actually dismissed for violating several rules of both the BPD and the Board, including rules prohibiting acts “contrary to good order and discipline.” We note that it is not unreasonable to conclude that prying open a locked bin and removing items therein that do not belong to the person accessing the bin is contrary to good order. As such, we conclude that the Board’s decision is supported by substantial evidence and properly applied the law, and, thus, it must be upheld. We therefore reverse the decision of the three-judge panel and remand this cause with instructions that the three-judge panel enter a judgment affirming the Board’s decision.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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


author: THOMPSON, Presiding Judge.

text:
    W.R. v. C.R.
    2090979.
    Court of Civil Appeals of Alabama.
    March 25, 2011.

      Virginia Wiggs Haas and Alison Baxter Herlihy, Mobile, for appellant.
    Donald M. Briskman of Briskman & Binion, P.C., Mobile, for appellee.
   THOMPSON, Presiding Judge.

W.R. (“the father”) appeals from a judgment of the Mobile Circuit Court divorcing him from C.R. (“the mother”). For the reasons stated herein, we affirm.

The parties married in 1998. One child was born of the marriage. In June 2008, the parties adopted four children, three girls and a boy, who were siblings and all of whom were minors at the time of the trial. Pursuant to the Alabama Subsidized Adoption Act, § 26-10-20 et seq., Ala.Code 1975, as part of the adoption of those children, the parties began receiving a monthly adoption subsidy payment of $2,437.50 from the State.

After they were married, the parties lived in a house that the father owned by virtue of a judgment divorcing him from his previous wife. In 2000, the parties sold that house and purchased another house (“the Mobile property”). The parties made a significant down payment on the Mobile property from the proceeds of the sale of their previous house, and they obtained a mortgage loan to finance the remainder of the purchase price of that property. Subsequently, the mother was in an automobile accident, and the parties applied $25,000 of the settlement proceeds the mother received because of that accident to a reduction of the principal of the mortgage loan on the Mobile property. The parties made extra payments on the mortgage loan so that, by 2007, the mortgage loan was paid off.

In October 2007, the parties purchased and moved into another house (“the marital residence”), financing that purchase with an equity line of credit secured by the Mobile property. The parties planned to pay off the line of credit with the proceeds from the sale of the Mobile property. At the time of trial, the line of credit had a balance of approximately $160,000.

In December 2008, the parties separated. The mother and the children remained in the marital residence, and the father moved back to the Mobile property. On January 29, 2009, the mother filed an action for legal separation from the father. On the same date the mother filed the action, the trial court entered an order awarding pendente lite custody of the children to the mother with weekly visitation for the father if he attended weekly therapy sessions.

On February 4, 2009, the mother filed a motion to restrict the father’s visitation with the children. She stated that the children’s therapist had filed a report with the Department of Human Resources alleging that the father had abused the children, that the father had learned about that report and had questioned the children extensively, and that the children were frightened to be around the father. The mother subsequently amended her complaint to seek a divorce rather than a legal separation.

On February 20,2009, the mother filed a petition for protection from abuse on behalf of herself and the children in which she alleged that the father had injured her and had acted abusively toward some of the children. The father filed a motion to dismiss the petition or to transfer the action to the circuit judge who was presiding over the mother’s divorce action on the basis that the mother’s divorce action concerned the subject matter of her petition for protection from abuse. The court granted the father’s motion and transferred the mother’s petition to the domestic-relations division of the Mobile Circuit Court, where the mother’s divorce action was pending.

On March 12, 2009, the father filed a motion for contempt against the mother in which he asserted that the mother had not allowed him to exercise visitation with the children in violation of the court’s previous order permitting him to exercise weekly visitation with the children. In a separate motion requesting custody of the children, the father asserted that the mother was “mentally, emotionally, and physically cruel to the children.” He supported this latter motion with his own recitation of examples of the mother’s parenting, as well as with an affidavit of the mother’s parents in which they stated, among other things, that the mother had been verbally and physically abusive toward the children. The father also filed an answer to the mother’s complaint and a counterclaim for a divorce in which he sought, among other things, custody of the children.

On April 9, 2009, after a hearing, the trial court entered an order providing that the father would be allowed to exercise supervised visitation with the children. The father subsequently filed a motion for contempt against the mother in which he asserted that the mother had denied him visitation with the children in violation of the trial court’s April 9, 2009, order. On September 4, 2009, after a hearing on the parties’ pending motions, the trial court entered an order awarding the father visitation with the children on alternating weekends.

The trial court held a trial of the action on December 15, 2009. The mother testified that the parties had separated because the father, after the mother had warned him not to abuse the children again, had “given” one of their sons a black eye. She stated that the parties separated on the day of that incident. The mother testified that the father had been physically abusive toward her. The father admitted that he had slapped the mother on one occasion, but he also testified that she had been physically abusive toward him.

The mother opined that the marital residence was worth $140,000. She stated that it was not in good repair, indicating that one wall had had sheetrock torn out of it, that water would leak into the downstairs area causing mold, that beams were missing from the ceiling of the living room, and that many of the appliances in the house did not work or did not work properly. She estimated that the cost to repair the marital residence exceeded $20,000. The father testified that the marital residence was in “average” condition when the parties purchased it and that it required only a “couple thousand dollars” in repairs. He opined that the marital residence was worth $160,000. The father submitted an exhibit indicating that his parents had loaned $17,000 to the parties to remodel the marital residence. The mother, however, testified that she was not aware of any such loan from the father’s parents.

The mother testified that the Mobile property was worth $200,000. The parties had offered that property for sale at slightly more than that amount. The father opined that the Mobile property was worth $160,000.

During part of the marriage, the mother had worked as a special-education teacher, earning approximately $28,000 annually. She had her teaching certificate at the time of trial, but she was no longer teaching. Instead, she was pursuing her master’s degree in social work as a full-time student. She also worked part time for a family center earning $14.50 per hour and averaging 20 hours of work per week.

The father worked at an automotive-parts company selling automobile parts. The ownership of that company was disputed at trial. The father and the children’s paternal grandfather testified that the paternal grandfather owned the company, and they denied that the father had an ownership interest in it. The mother, however, testified that the father had told her that he owned the business with his father, and a mortgage executed by the father and his parents in 2005 related to the company indicated that all three owned stock in the company. The father, along with his parents, owned the property on which the company was located, although the father testified that he did not realize that he had an ownership interest in that property until a few months before trial.

The father stated that he was paid $500 per week from his job at the automotive-parts company. The mother stated that the father was paid an additional amount in cash each week, but the father and the paternal grandfather denied that the father received any payments from the company beyond his weekly payroll check. In addition to a weekly salary, the company provided the father with a truck and medical insurance. The mother testified that, at some point during the marriage, the father had supplemented his income by obtaining automobiles that had been auctioned, repairing them, and reselling them for a profit. The father testified that he had not done this in the previous six or seven years.

The mother testified that the monthly adoption subsidy of $2,437.50 that she received was for the adopted children’s special needs. The amount of the subsidy for each of the three adopted daughters was approximately $450, while the amount of the subsidy for the adopted son was $1,070. The mother stated that the adopted son has Asperger’s syndrome, reactive attachment disorder, attention deficit/hyperactivity disorder, Tourette’s syndrome, and post-traumatic stress disorder. She stated that two of the adopted daughters have reactive attachment disorder and that one also has attention deficit disorder. The mother testified that she used the monthly adoption subsidy payment to pay for specialized babysitting, which cost $800 per month; for therapy for one of the daughters, which cost $600 per month; for private-school tuition for one of the daughters, which cost $291 per month; and for therapy for the adopted son, which cost $150 per month.

The mother submitted a document indicating that her monthly budget was approximately $3,600. It does not appear that she included her monthly food bill on that list, but it was undisputed that she received $600 worth of food stamps every month. The father submitted a document indicating that, during the pendency of the action, he had had monthly expenses of $2,442.27. That amount included, among other things, various expenses associated with the marital residence that the trial court ordered him to pay pending resolution of the action. The father stated that his expenses had exceeded his income by $400 to $500 each month and that he had been borrowing money from the paternal grandfather to cover the shortfall. The father testified that he could not afford to be solely responsible for the line of credit secured by the Mobile property.

The mother testified that she had two credit cards, one of which had a balance of $8,800 and the other of which had a balance of $1,100. She testified that the former credit card had a balance of $4,120.12 about the time the action was filed. The mother stated that she had borrowed $400 from a friend to support the children and her. The mother testified she had incurred $43,500 in student loans during the marriage, approximately half of which she had incurred before the action was filed. She stated that she had used a substantial amount of her student loans to support herself and the children.

The mother testified that she had begun a romantic relationship with a man whom she had met five months before the trial. The mother also admitted that, some time within the eight-month period before the trial, she had gone to New York for a few days to stay with a different male friend.

The father, when asked whether he had been faithful to the mother, responded, “Most of the time.” He then stated that he had never committed adultery. However, he acknowledged that, when he was asked during discovery whether he had had sexual relations with anyone other than the mother since the parties had married, he refused to answer, citing his constitutional right not to incriminate himself.

Kimberly Carter, a social worker with the Mobile County Department of Human Resources, handled the process by which the parties had adopted four of their children. She stated that the adoption subsidy was for the benefit and support of the adopted children. She testified that the adopted son, more so than the three adopted daughters, had special needs. Carter did state that some of the subsidy was based on the fact that the four adop-tees were siblings and would have been hard to place together.

During the trial, the parties reached an agreement that they would share joint legal custody of the children, with the mother having primary physical custody of the children and the father having visitation.

On February 22, 2010, the trial court entered a final judgment divorcing the parties. Pursuant to the parties’ agreement at trial, the trial court awarded the parties joint legal custody of the children, awarded the mother primary physical custody of the children, and awarded the father visitation rights. The trial court ordered the father to pay $817 in monthly child support to the mother, an amount derived by application of the child-support guidelines contained in Rule 32, Ala. R. Jud. Admin. It awarded the mother the marital residence and the father the Mobile property, with each party to be responsible for any mortgage debt, taxes, and insurance relative to the property each was awarded. The judgment provided that each party was to be responsible for any credit-card and student-loan indebtedness in his or her name. The judgment awarded the mother the automobile she drove, it awarded the father any interest the parties had in the automotive-parts company’s truck he regularly drove, and it divided the parties’ other personal property. The trial court awarded the mother’s attorney a judgment against the father for $1,000 for attorney’s fees. The trial court reserved the issue of alimony. The father filed a timely appeal.

Our review of a divorce judgment entered after an ore tenus proceeding is well settled.

“A divorce judgment that is based on evidence presented ore tenus is afforded a presumption of correctness. Brown v. Brown, 719 So.2d 228 (Ala.Civ.App.1998). This presumption of correctness is based upon the trial court’s unique position to observe the parties and witnesses firsthand and to evaluate their demeanor and credibility. Brown, supra; Hall v. Mazzone, 486 So.2d 408 (Ala.1986). A judgment of the trial court based on its findings of facts will be reversed only where it is so unsupported by the evidence as to be plainly and palpably wrong. Brown, supra. However, there is no presumption of correctness in the trial court’s application of law to the facts. Gaston v. Ames, 514 So.2d 877 (Ala.1987).”

Robinson v. Robinson, 795 So.2d 729, 732-33 (Ala.Civ.App.2001). In addition, “[i]t is well-settled that where a trial court does not make specific factual findings, the appellate court must assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous.” Baggett v. Baggett, 855 So.2d 556, 559-60 (Ala.Civ.App.2003).

The father contends the trial court erred in its division of the parties’ real property. Specifically, he argues that, in awarding the mother the marital residence on which the parties owed no debt, the trial court effectively awarded the mother $160,000 in equity. He argues that the trial court, in awarding him the Mobile property, effectively awarded him between $0 and $40,000 in equity because the Mobile property was encumbered by a $160,000 mortgage. This division of the parties’ real property, he asserts, was erroneous because a portion of the equity in the real property had come from the sale of property he had owned before the marriage; the mother’s future earning potential was greater than his; and the mother, after the parties had separated, had wrongfully denied visitation to him for a period and had caused the children to make false abuse allegations against him.

In Baggett v. Baggett, 855 So.2d at 559, this court wrote:

“On appeal the division of property and the award of alimony are interrelated, and the entire judgment must be considered in determining whether the trial court abused its discretion as to either issue. See O’Neal v. O’Neal, 678 So.2d 161 (Ala.Civ.App.1996). A property division does not have to be equal in order to be equitable based on the particular facts of each case; a determination of what is equitable rests within the sound discretion of the trial court. See Golden v. Golden, 681 So.2d 605 (Ala.Civ.App.1996).
“When dividing marital property and determining a party’s need for alimony, a trial court should consider several factors, including ‘ “the length of the marriage, the age and health of the parties, the future employment prospects of the parties, the source, value, and type of property owned, and the standard of living to which the parties have become accustomed during the marriage.” ’ Ex parte Elliott, 782 So.2d 308 (Ala.2000) (quoting Nowell v. Nowell, 474 So.2d 1128, 1129 (Ala.Civ.App.1985)) (footnote omitted). In addition, the trial court may also consider the conduct of the parties with regard to the breakdown of the marriage, even where the parties are divorced on the basis of incompatibility, or where, as here, the trial court failed to specify the grounds upon which it based its divorce judgment. Ex parte Drummond, 785 So.2d 358 (Ala.2000); Myrick v. Myrick, 714 So.2d 311 (Ala.Civ.App.1998).”

Our consideration of the factors set forth in Baggett, as well as our recognition of the broad discretion a trial court possesses in dividing marital assets, leads us to conclude that the trial court’s division of the parties’ property in the present case did not constitute error.

We note that the mother opined, and the court could have concluded, that the marital residence was worth $140,000, not $160,000 as the father contends, and that the marital residence required more than $20,000 in repairs. Furthermore, the father, in arguing that the property division was inequitable, fails to consider any marital property other than the two pieces of real property the parties owned. In addition to that real property, the trial court also divided a substantial amount of personal property between the parties. For example, the trial court awarded the father, among many other things, a pop-up camper, a bass boat, a second boat, two refrigerators, and a hot tub. The father’s contention simply fails to take into consideration the entire award of marital property the trial court made to each party.

The trial court also ordered that each party be responsible for any student-loan and credit-card debt he or she had accrued. Thus, the mother is solely responsible for the repayment of more than $40,000 in student loans, half of which she had incurred before the present action was filed and much of which she stated she had used for her support and the support of the children, as well as the repayment of more than $8,000 in credit-card indebtedness, approximately half of which had accrued before the present action was filed.

As to the parties’ earning abilities, the father focuses on the fact that the mother had almost completed the requirements to obtain a master’s degree in social work, while he had not attained that level of education. He also points out that the mother earned more money than he did during the time she worked as a teacher. The trial court, in considering the parties’ earning capacities, could have concluded that the father had an ownership interest in his father’s company and, as a result, that his future earning potential was not limited to the salary he presently receives. It likewise could have concluded that he received additional income from his job in the form of weekly cash payments. Finally, the trial court could have concluded, based on the conflicting evidence presented at trial, that the father’s alleged abuse of the children and the mother was the cause of the breakdown of the marriage; fault in the breakdown of the marriage is a factor the trial court may consider in fashioning a property division. Baggett, supra.

As previously stated, the division of a marital estate is not required to be equal; instead, it is required to be equitable. Baggett, supra. For the foregoing reasons, we cannot conclude, based on the arguments the father presents, that the trial court’s division of the parties’ marital estate was so inequitable as to constitute an abuse of discretion requiring reversal.

The father next contends that the trial court erred when it awarded the mother child support in an amount determined by application of the Rule 32 child-support guidelines without crediting against his child-support obligation the adoption subsidy the State provided for the parties’ adopted children. He argues that because both parties entered into the agreement by which the State pays a subsidy for the adoption of the children, the parties should split the subsidy and that his half of the subsidy should be credited against his monthly child-support obligation with regard to the four adopted children. He asserts that, to the extent his half of the adoption subsidy exceeds the amount called for in the child-support guidelines, he should not be required to pay child support for the four adopted children. He argues that adoption subsidy payments are akin to, and should be treated in the same manner as, Social Security payments received by a child because of a parent’s disability.

The purpose of the Alabama Subsidized Adoption Act, § 26-10-20 et seq., Ala.Code 1975 (“the Act”), “is to supplement the Alabama adoption statutes by making possible through public financial subsidy the most appropriate adoption of each child certified by the State Department of Human Resources as requiring a subsidy to assure adoption.” § 26-10-21, Ala.Code 1975. The Act delegates to the Department of Human Resources the task of developing regulations for the implementation of the Act. According to those regulations, to be certified for eligibility for an adoption subsidy, among other things, the “State Department of Human Resources must determine that the child is a special needs child and is in special circumstances which make it unlikely for him to be adopted” because of one or more of several reasons, including, among others, physical or mental disability, emotional disturbance, or membership in a sibling group of three or more children when the intention is to have the children adopted as a group. Ala. Admin. Code (Dep’t of Human Res.), r. 660-5-22-.06(2)(a)3. A family adopting a child who qualifies for an adoption subsidy must enter into an agreement with the Department of Human Resources setting out the terms and conditions of the subsidy prior to the issuance of the final decree of adoption. Ala. Admin. Code (Dep’t of Human Res.), r. 660-5-22-.06(3)(a).

The issue of how adoption subsidies should be treated with regard to an award of child support is one of first impression in this jurisdiction. However, our caselaw provides some guidance as to the proper resolution of the issue. In Lightel v. Myers, 791 So.2d 955 (Ala.Civ.App.2000), the trial court entered a judgment requiring the father to pay postminority support for two of his adult children who were mentally retarded. The father appealed and argued, in part, that his obligation to provide for the children’s reasonable living expenses should be offset by the children’s receipt of Supplemental Security Income benefits. This court concluded that the father was entitled to no such offset.

The court noted that prior Alabama cases had determined that, when a child receives Social Security disability benefits because of a parent’s disability, those benefits should constitute an offset to the disabled parent’s child-support obligation because the benefits were intended to replace the disabled parent’s income. Lighted 791 So.2d at 958-59 (discussing Binns v. Maddox, 57 Ala.App. 230, 327 So.2d 726 (1976), and Self v. Self, 685 So.2d 732 (Ala.Civ.App.1996)). Finding that those cases were distinguishable because of the purpose of the benefits at issue in those eases, this court wrote that a child’s receipt of Supplemental Security Income benefits would not constitute an offset against the parents’ support obligations because those benefits were intended to supplement, not to replace, income:

“In Alabama, a parent’s child-support obligation may be offset by payments by a third-party source where those payments constitute a substitute income source.... However, SSI [Supplemental Security Income] benefits are a supplement to income, not a substitute for it. Therefore, we conclude that the trial court correctly refused to offset the father’s obligation to provide for the children’s reasonable living expenses by the amount of SSI benefits the children receive.”

Id. at 960.

Based on the reasoning of Lightel and the cases on which it relied, the question whether the adoption subsidy in the present case should offset the father’s child-support obligation is resolved by determining whether the subsidy constitutes a substitute for an income source or whether it is intended as a supplement to income. Although the appellate courts of this state have not addressed that issue, courts in other jurisdictions have concluded that the purpose of an adoption subsidy is to serve as a supplement to income, not as a replacement for a parent’s income, and that those payments therefore do not offset or otherwise serve as a credit against a parent’s child-support obligation.

Hamblen v. Hamblen, 203 Ariz. 342, 54 P.3d 371 (Ct.App.2002), involved a divorce action in which the father asserted, on appeal, that half of the adoption subsidy the parties received because of their adoption of five children should have been credited against his child-support obligation. Rejecting the father’s contention, the appellate court wrote:

“In A.E. v. J.I.E., 179 Misc.2d 663, 686 N.Y.S.2d 613 (1999), the Supreme Court of New York considered this issue in a context similar to the Hamblens’ case. A married couple adopted a special-needs child and received a subsidy. When they later divorced, the mother sought to have the subsidy credited against her child-support obligation. The court ruled to the contrary: The subsidy was intended for the care of the child and therefore a resource for the child, not income for the parent. Id. at 614-15. As a result, the subsidy did not reduce the mother’s financial obligation.
“Our own and the foregoing reasoning persuades us that the subsidy is intended as direct assistance to an adopted child with special needs. Despite the payment of the subsidy to the parents, it is for the benefit of the child. Indeed, it would be inappropriate to adjust a child’s entitlement to financial support because the government has elected to subsidize the increased financial commitment that a special-needs child imposes on the parents. See A.E., 686 N.Y.S.2d at 616. The subsidy is income rightly attributed to the child, not a credit against a parent’s child-support obligation.
“[The father] refers us to two cases, Pasternak v. Pasternak, 310 N.J.Super. 483, 708 A.2d 1235 (Ct.Ch.Div.1997), and Ward v. Ward, 7 Neb.App. 821, 585 N.W.2d 551 (1998), in which the courts held that a Social Security death benefit could be used to reduce the amount of child support. These cases, however, are readily distinguishable. The benefits received by the children in both cases were intended to replace the wages of a deceased parent. As a substitute for parental income, those benefits reasonably would be included in the child-support calculation. The adoption subsidy, however, is for the benefit of the child and not a replacement for lost parental income. See A.E., 686 N.Y.S.2d at 615.
"... [T]he subsidy is but an addition to a parent’s obligation of financial support. If this subsidy were credited against the parent’s child-support obligation it would in effect, eliminate the supplementary effect of the subsidy. And, once the supplementary effect of the subsidy is taken, the effect of its incentive is undermined, leaving the custodial parent of the subsidized child with reduced if any support and greater difficulty in meeting the child’s particular needs. The prospect of this scenario could as well deter a prospective parent from adopting a special-needs child.
“ ‘A parent’s child support obligation is paramount to all other financial obligations, and that parent has a legal duty to support his or her biological and adopted children.’ Little v. Little, 193 Ariz. 518, 521 ¶6, 975 P.2d 108, 111 (1999). If we were to accept [the fa-therj’s position that he is entitled to a financial credit to the extent of the subsidies for his children, we would absolve him of his rightful duty to support his children and indeed place them in a worse position than children without special needs.”

Hamblen, 203 Ariz. at 345-46, 54 P.3d at 374-75 (footnote omitted; emphasis added).

In In re Marriage of Bolding-Roberts, 113 P.3d 1265 (Colo.App.2005), a noncustodial parent, on appeal from a judgment modifying his child-support obligation, argued that the obligation should have been reduced because of an adoption subsidy paid to the custodial parent. The appellate court disagreed, writing:

“A child support order is calculated to serve the best interests of children and to mitigate the potential harm to them caused by the dissolution of marriage. In re Marriage of Bohn, 8 P.3d 539 (Colo.App.2000). Had the parties not separated, the child would have enjoyed the benefit of both parents’ incomes, as well as the subsidy. Thus, the underlying intent of the child support statute is best served by declining to offset a noncustodial parent’s support obligation by the amount of an adoption subsidy or to consider the subsidy as a factor that may diminish the child’s basic needs....
“Nor are we persuaded that In re Marriage of Quintana, 30 P.3d 870 (Colo.App.2001), requires a contrary result. In Quintana, a division of this court concluded that a trial court did not abuse its discretion in adjusting [a] father’s child support obligation pursuant to [Colo.Rev.Stat.] § 14-10-115(13)(b) based upon social security disability payments received by a mother on behalf of her children.
“Unlike the social security payments at issue in Quintana, which were intended as a substitute or replacement for lost income of a disabled parent, the adoption subsidy at issue here is intended as a supplement to allow the parents to address the special needs of the adopted child. Given the different purposes underlying these two types of payments, we conclude that there is a reasonable basis for treating them differently. ...”

Bolding-Roberts, 118 P.3d at 1268 (emphasis added). See also In re Marriage of Dunkle, 194 P.3d 462, 466 (Colo.App.2008) (“[S]ocial security disability benefits received on behalf of the children are designed as payments to replace the parent’s decreased earning potential, whereas- an adoption subsidy or foster care payment is paid for the benefit of the child and not as a replacement for lost parental income.”); Gambill v. Gambill, 137 P.3d 685, 690 (Okla.Civ.App.2006) (“We find persuasive the decisions finding that an adoption subsidy is income attributable to the child. The adoption subsidy is meant to supplement adoptive parents’ income for the benefit of the special needs child. The subsidy is in no sense attributable to either parent. It is paid for the benefit of the children and is not a substitute for a parent’s income.”); In re Hennessey-Martin, 151 N.H. 207, 211-12, 855 A.2d 409, 413 (2004) (“Forcing a custodial parent to accept the adoption assistance payment as a substitute for the non-custodial parent’s child support would negate the supplementary effect of the adoption subsidy because it would transform the adoption subsidy into the exclusive means of support and disregard the increased costs associated with the care of ‘special needs’ children. Similarly, allowing the petitioner to credit the adoption subsidy against her child support payment would be against the interests of the adopted children because it would diminish the resources deemed necessary for the care and incorporation of these ‘special needs’ children.”).

We agree with the reasoning contained in the foregoing cases, and we conclude that the adoption subsidy at issue in the present case does not constitute a replacement of or substitute for an income source. Instead, as the above cases hold, the adoption subsidy is supplemental to the adoptive parents’ income, and, as such, the subsidy cannot serve as a credit against the father’s child-support obligation. See Lightel, 791 So.2d at 960.

The father also argues that, even if the adoption subsidy cannot be credited against his child-support obligation, the trial court should have taken the adoption subsidy into account and deviated downward from the amount of child support called for in the Rule 32 child-support guidelines. He points out that Rule 32 permits a trial court to deviate from the child-support guidelines when the child for whom support is required receives separate, unearned income. See Rule 32(A)(1)(d), Ala. R. Jud. Admin. He also asserts that the trial court should have deviated downward from the amount of child support called for by the guidelines because that amount constitutes approximately half of his net salary and paying that amount would leave him with insufficient financial resources on which to live.

“A trial court has the discretion to deviate from the child support guidelines in situations where it finds the application of the guidelines would be manifestly unjust or inequitable.” State ex rel. Golden v. Golden, 710 So.2d 924, 926 (Ala.Civ.App.1998). In the present case, we fail to find any abuse of discretion by the trial court in fixing the father’s child-support obligation at the amount called for in the child-support guidelines.

There was evidence that the cost of services for the children based on their spe-dal needs, including therapy, private-school tuition, and specialized babysitting, exceeded $1,800 monthly, or approximately three quarters of the amount of the adoption subsidy. In addition to the father’s salary, we note that there was evidence from which the trial court could have concluded that the father had an ownership interest in the company for which he worked and that he received weekly cash payments from the company in addition to his reported salary. More importantly, we find that the trial court could have concluded from the evidence that the mother’s and children’s monthly expenses, coupled with those expenses related to the marital residence for which the mother would be responsible following the divorce, exceeded the sum of the mother’s income and the adoption subsidy. Thus, the trial court could have found that the mother and the father were in similar financial situations such that a deviation from the child-support obligation set forth in the Rule 32 guidelines was not warranted. Based on all of these considerations, we conclude that the father has failed to demonstrate error.

Finally, the father contends that the trial court erred when it awarded the mother’s attorney a judgment against him for $1,000 for a portion of the mother’s attorney’s fees. The determination of whether to award an attorney’s fee in a divorce action is committed to the sound discretion of the trial court. Kovakas v. Kovakas, 12 So.3d 693, 700 (Ala.Civ.App.2008). “In determining whether to award an attorney fee in a divorce action, the trial court should consider, among other things, the conduct of the parties, the financial circumstances of the parties, and the outcome of the litigation.” Id. Based on our review of the record, we conclude that the trial court did not exceed its discretion in ordering the father to pay $1,000 toward the mother’s attorney’s fee.

As to the conduct of the parties, the father correctly points out that much of the pretrial litigation between the parties revolved around the mother’s refusal to allow the father to visit the children in violation of court orders. However, offsetting the mother’s asserted misconduct is the evidence of physical abuse by the father against the mother and the children during the marriage that allegedly led to the breakdown of the marriage. We recognize that the assertions of physical abuse were disputed at trial to some extent; however, the evidence was sufficient to support a finding by the trial court that the parties’ conduct relative to the marriage warranted an award of an attorney’s fee to the mother.

The father argues that the parties’ financial circumstances did not warrant the award of an attorney’s fee given that the mother was awarded most of the equity in the parties’ real property and that the mother’s earning capacity exceeded his. Our review of the record indicates that there was evidence indicating that the financial circumstances of the parties were similar with regard to their ability to pay their monthly expenses, however, and, as previously discussed, we do not believe that the trial court was required to weigh heavily the mother’s assertedly greater earning capacity than the father’s given the evidence indicating that the father was a part owner in the company for which he worked and the fact that the mother, in pursuing a career in social work, would be the sole custodial parent of five children. We also note that the amount of the attorney-fee award, $1,000, is not exorbitant.

Considering the record as a whole and the level of discretion afforded the trial court with regard to the award of an attorney’s fee in this case, we conclude that the trial court did not exceed its discretion when it ordered the father to pay $1,000 of the mother’s attorney’s fees. The father’s contrary assertion is without merit.

Based on the foregoing, we conclude that the father has failed to demonstrate a basis on which to hold the trial court in error. As a result, we affirm the trial court’s judgment.

AFFIRMED.

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

      . As explained in more detail later in this opinion, the Alabama Subsidized Adoption Act provides for the payment of a subsidy to make possible the adoption of children who would otherwise not be likely to be adopted. §§ 26-10-22 and 26-10-25, Ala.Code 1975.

      . The therapist’s report resulted in an investigation by the Department of Human Resources of whether the father had sexually abused two of the children and had physically abused one of the children. After multiple interviews with the children and others, the protective-services worker who had conducted the investigation concluded that there was insufficient evidence to support the allegations of abuse. The worker opined that the children had been influenced by the therapist or the mother to say that they had been abused. The worker also believed that the timing of the allegations, occurring during the pendency of the divorce action, was suspicious.

      . The father does not argue on appeal that, and we do not address the question whether, the adoption subsidy should be counted as income to the mother in calculating the parties’ child-support obligations. Except as stated below, the father's argument with regard to the adoption subsidy is limited to his contention that half of the adoption subsidy should be credited against his child-support obligation relative to the adopted children.