author: BRYAN, Judge.

text:
    Joe MURPHY v. Louise MOTHERWAY.
    2090037.
    Court of Civil Appeals of Alabama.
    July 23, 2010.
    Certiorari Denied Jan. 14, 2011 Alabama Supreme Court 1091532.

      M. Scott Harwell of Harwell Law Firm, LLC, Birmingham, for appellant.
    Anthony B. Johnson and Stephen D. Boyd of Johnson Law Firm, LLC, Centre-ville, for appellee.
   BRYAN, Judge.

Louise Motherway (“Louise”) is the proponent of a will executed by her father, M.C. Murphy (“M.C.”), on March 5, 2002 (“the 2002 will”). M.C.’s other child, Joe Murphy (“Joe”), contested the 2002 will in the Jefferson Circuit Court and requested a jury trial. At trial, Louise orally moved for a judgment as a matter of law (“JML”) at the close of Joe’s case-in-chief. The trial court granted that motion and later entered both a judgment in favor of Louise and an amended judgment in favor of Louise by executing separate written documents. From the amended judgment in favor of Louise, Joe appeals. We affirm.

Facts

The following facts are undisputed. M.C. was born in 1911. Louise and Joe were born of M.C.’s first marriage and are his only children. Louise was born in 1933, and Joe in 1937. M.C. and his first wife divorced in 1954. Following a second marriage that produced no children and ended in divorce, M.C. married Maxine Krout, who had no children, in 1958. No children were born of M.C.’s marriage to Maxine. M.C. remained married to Maxine until she died on December 23, 2001, at the age of 90.

During their marriage, M.C. farmed a parcel of real property (“the farm”) that his father, Monroe Murphy, had deeded to him; the farm contained approximately 245 acres. There is a site located approximately in the northwest quadrant of the farm that the parties refer to as Monroe Murphy’s home site. There is another site located approximately in the southwest quadrant of the farm that the parties refer to as Louise and Joe’s birth site. In addition, there are two lakes located approximately in the southeast quadrant of the farm. In approximately 1972, M.C. and Maxine acquired a parcel of land in Brent and built a home on it (“the Brent home”).

Maxine, who had worked for a bank, paid all of her and M.C.’s bills and handled all their bank accounts before she died. If M.C. purchased an item at a store with a check, he signed a blank check and handed it to the cashier for him or her to complete.

In 1973, M.C. executed a will that left all of his property to Louise and Joe in equal shares if Maxine predeceased him. In 1990, Louise bought a three-acre portion of the farm that included Monroe Murphy’s home site. During a family gathering the week before Christmas 1990, M.C. asked Louise what part of the farm she would like to have. When M.C. asked the question, Maxine was in the room, but Joe was not. Louise responded that she would like to have Louise and Joe’s birth site and the two lakes. M.C. and Maxine then called Joe into the room. M.C. told Joe he was going to divide the farm between Louise and Joe; that Louise had requested Monroe Murphy’s home site, Louise and Joe’s birth site, and the two lakes; and that Joe would receive the rest of the farm. Joe testified that he was surprised by M.C.’s proposal to divide the farm between Louise and him and that he expressed his gratitude.

Joe testified that, after that conversation, he went to the courthouse to gather information about the farm. He further testified that, without knowing that Louise had already bought a three-acre portion of the farm containing Monroe Murphy’s home site, he called M.C. on December 27, 1990, and suggested a different division of the farm than that proposed by M.C. According to Joe, M.C. was “testy” in response to Joe’s proposing an alternative method of dividing the farm and said that “he did not have to give the property away, that he could sell it.”

Joe testified that he still did not know that Louise had purchased a three-acre portion of the farm containing Monroe Murphy’s home site when he sent M.C. and Maxine a letter on December 28, 1990, suggesting that, for purposes of M.C.’s giving the farm to Louise and Joe, the farm should be divided into a 122-acre parcel containing Louise and Joe’s birth site and a 123-acre parcel containing Monroe Murphy’s home site and the two lakes. The letter further suggested that Louise be given her choice of those two parcels or that she and Joe draw lots to determine which of those two parcels each of them would receive.

Joe testified that M.C. did not respond to his December 28, 1990, letter and that he assumed that M.C. was angry at him. Louise and her two sons, Mike and Mark Motherway, all testified that M.C. had told them that Joe’s December 28, 1990, letter made him angry.

The undisputed evidence established that, in 1991, M.C. and Maxine went to attorney Mike Murphy, a distant relative of M.C., to have new wills prepared. Mike Murphy prepared new wills for them, and M.C. executed his on July 3, 1991 (“the 1991 will”). The 1991 will provided that, if Maxine predeceased M.C., Joe would receive a 58-acre parcel of real property and that Louise would receive all the rest of M.C.’s property.

The undisputed evidence also established that, in 1996, M.C. and Maxine executed new wills (“the 1996 wills”). Each of the 1996 wills created a spousal trust and a family trust. Maxine’s 1996 will named her nieces and nephews as her residuary beneficiaries, while M.C.’s 1996 will named Louise and Joe as his residuary beneficiaries and provided that Louise would receive the Brent home and that all the rest of his property would be divided equally between Louise and Joe.

It is also undisputed that, in 1997, M.C. and Maxine executed a deed conveying all their jointly owned property, including the Brent home and the farm, to Louise and Joe subject to a life estate retained by M.C. and Louise. For reasons undisclosed by the record, however, M.C. and Maxine did not tell either Louise or Joe about the deed conveying M.C. and Maxine’s jointly owned property to them at that time.

Louise testified that, after Maxine died, M.C. asked her to pay his bills and help him with his financial affairs. The evidence was undisputed that M.C. had difficulty reading; however, the evidence regarding the cause of that difficulty was inconclusive. Louise testified that M.C. could read without difficulty until he began to suffer from macular degeneration late in life. One of Louise’s sons suggested that the paucity of M.C.’s formal education was a cause of his difficulty in reading. Louise testified that M.C. left school after the sixth or seventh grade, while one of Louise’s sons testified that M.C. left school after the third or fourth grade.

Attorney Mike Murphy testified that M.C. and Louise came to his office on January 2, 2002, a little over a week after Maxine died. Mike Murphy testified that he explained to M.C. the spousal trust and family trust created by Maxine’s 1996 will and that M.C., whose 1996 will also provided for the creation of a spousal trust and a family trust, stated that he did not want a spousal trust and family trust in his will and that he wanted a simple will instead. Mike Murphy testified that he met with M.C. on at least two other occasions to discuss the terms of a new will, and Louise did not accompany M.C. on at least one of those visits. Mike Murphy testified that, in his meetings with M.C., M.C. told him what he wanted done with his property and that M.C. did not act any differently when Louise was present than he did when Louise was absent. Mike Murphy further testified that, on February 12, 2002, he sent M.C. a draft of a new will. That draft provided that Louise would receive one-half of M.C.’s property and that her children, Mark and Mike Motherway, would receive the other half. Mike Murphy testified that M.C. subsequently requested that the draft of the will be changed to provide that Louise would receive all of his property if she survived him and that, if she did not survive him, her children would receive all of his property. Mike Murphy testified that he made that change, and, with that change, the draft became the 2002 will. Mike Murphy testified that M.C. then made an appointment to execute the 2002 will on March 5, 2002, and that Louise accompanied M.C. to Mike Murphy’s office where M.C. executed the 2002 will. Mike Murphy further testified that, at M.C.’s express request, both the initial draft of the will that Mike Murphy had sent M.C. on February 12, 2001, and the 2002 will stated that M.C. had already made provision for Joe by deeding him a one-half interest in certain real property.

Mike Murphy also testified that he had not had any dealings with Louise before he drafted the 2002 will and that he had drafted the 1991 will for M.C. Mike Murphy testified that, in his dealings with M.C., he did not observe any signs that Louise was imposing her will on M.C. Mike Murphy witnessed M.C.’s execution of the 2002 will, and he testified that, in his opinion, M.C. executed the 2002 will freely and voluntarily and that the 2002 will expressed M.C.’s wishes.

Mike Murphy testified that, in June 2002, M.C. had him prepare a correction deed correcting the 1997 deed executed by M.C. and Maxine. The correction deed indicated that the conveyance of the Brent home jointly to Louise and Joe was a mistake and conveyed the Brent home to Louise alone. Mike Murphy testified that he advised M.C. that it would be better to ask Joe to execute a quitclaim deed divesting him of any interest in the Brent home; however, M.C. indicated that he did not want to ask Joe to sign a quitclaim deed.

Bernice Stacy (“Bernice”), Maxine’s 91-year-old sister, testified that a dispute had arisen between her and M.C. regarding the disposition of some of Maxine’s property after her death. Bernice testified that Maxine had told her that her name was on three of Maxine’s bank accounts and one of her certificates of deposit and that M.C. would give her the proceeds of those bank accounts and that certificate of deposit upon Maxine’s death. Bernice testified that, after Maxine’s death, M.C. told Bernice to come to the bank and he would give her the proceeds of the certificate of deposit. Bernice testified that, when she arrived at the bank, M.C., Louise, and two bank employees were present and that M.C. and Louise were whispering to one another. Bernice testified that one of the bank employees had Bernice sign the certificate of deposit with a piece of paper covering up the amount of the certificate of deposit. Bernice testified that she was then given some money but that she later learned that she had been given only one-half of the proceeds of the certificate of deposit. Bernice testified that she did not receive any of the proceeds of the bank accounts that Maxine had told her she would receive.

Documentary evidence indicated that one-half of the proceeds of the certificate of deposit with Bernice’s name on it and the proceeds of the three bank accounts with Bernice’s name on them were deposited in accounts that had M.C.’s and Louise’s names on them and that the disposition of those accounts was governed by contracts providing that, upon the death of one of the owners, the account would become the sole property of the survivor. Louise testified that M.C. asked her to accompany him to the bank for his meeting with Bernice regarding the certificate of deposit that had Bernice’s name on it and that she did so because he requested it; however, she testified that M.C. drove them there, that M.C. did not ask for her advice regarding what to do with the certificate of deposit, and that she did not give him any advice. She testified that M.C. took the certificate of deposit out of the safety deposit box and gave it to a bank employee. Louise also testified that M.C. instructed her to set up bank accounts that were in her and M.C.’s names and that he instructed her to make the deposits to those accounts.

Bernice also testified that, while Maxine was alive, she had had some of their mother’s furniture in the Brent home and that when Bernice went to get that furniture following Maxine’s death, M.C. told her that she could not come into the house. Bernice testified that Louise was not present on that occasion.

In addition, Bernice testified that, approximately 11 months after Maxine’s death, she employed an attorney and sued M.C. to recover property of Maxine’s that Bernice believed she was due. Bernice testified that her action was mediated and that Louise accompanied M.C. to the mediation. Bernice further testified that, during the mediation, Louise did most of the talking on behalf of M.C., that Louise made a number of demands on behalf of M.C., that Bernice acquiesced to those demands, and that Bernice and M.C. agreed upon the terms of a settlement of Bernice’s claims. However, according to Bernice, M.C. subsequently refused to implement the terms of the settlement, and her action is still pending against M.C.’s estate. Finally, Bernice testified that M.C. was a strong-willed and intelligent person who had a strong temper.

A dispute also arose between M.C. and Maxine’s family regarding the funding of the spousal and marital trusts created by Maxine’s 1996 will. M.C. asserted that Maxine’s 1996 will required that the spousal trust be funded before the family trust, while Maxine’s family asserted that her will required that the family trust be funded before the spousal trust. That dispute led to litigation that resulted in a 2007 decision of the Alabama Supreme Court holding that the will required that the family trust be funded before the spousal trust.

Joe Crocker was M.C.’s best friend. He testified that M.C. told him that Joe was not happy with the way M.C. had proposed to divide the farm, so M.C. had deeded the farm to both Louise and Joe so that they could settle how it should be divided. Crocker testified that it would not surprise him that M.C. had favored Louise in his will because M.C. was pleased that Louise and Maxine had become “buddies.” He also testified that M.C. was somewhat afraid of Joe, that M.C. was a strong-willed person who could not be pushed around, that M.C. wanted to see Louise often after Maxine died, and that Crocker never saw any evidence indicating that Louise was imposing her will on M.C.

Crocker’s daughter, Karen Berklew, was also close to M.C. She testified that, although M.C. was grieving over Maxine’s death, he never showed any signs of incompetence after Maxine’s death. Berk-lew testified that M.C. told her that he was grateful to Louise for taking care of him after Maxine’s death. She further testified that she saw no signs that Louise was imposing her will on M.C. and that, after M.C. moved into Louise’s house toward the end of his life, Louise never tried to restrict anyone’s access to M.C. Indeed, Berklew testified that, whenever she visited M.C., Louise would leave the room and give them privacy. She also testified that M.C. made his own decisions and had a strong will.

Joe testified that he had resumed a normal relationship with M.C. within a few years after he had suggested an alternative method of dividing the farm in 1990 and that he and his father were on good terms from that point until his father’s death.

Procedural History

After M.C.’s death, Louise offered the 2002 will for probate, and the Probate Court of Jefferson County admitted it to probate. Thereafter, on July 2, 2007, Joe filed a will-contest action in the Jefferson Circuit Court, alleging that Louise had procured M.C.’s execution of the 2002 will by exercising undue influence. Louise answered Joe’s complaint with a general denial. Subsequently, Joe amended his complaint to add a claim alleging that Louise, by exercising undue influence, had convinced M.C. to make her a joint owner, with right of survivorship, of checking accounts, certificates of deposit, and investment accounts that had previously been in M.C.’s name only, in the names of both M.C. and Maxine, or in the names of M.C., Maxine, and Bernice. Louise answered Joe’s amended complaint with a general denial. After Louise unsuccessfully moved for a summary judgment, the action proceeded to trial before a jury, which, as noted above, resulted in the trial court’s entering a JML in favor of Louise.

In pertinent part, the trial court’s judgment, as amended, stated:

“This matter came on to be heard May 18, 2009 for a trial by jury. This case involved a will contest, whereby the contestant, Joe Murphy ..., claimed undue influence by the proponent, Louise Motherway....
“At the close of [Joe’s] case-in-chief, [Louise] moved for a Judgment as a Matter of Law, which this Court granted.
“In a will contest based upon undue influence, the contestant must offer substantial evidence showing:
“1. That a confidential relationship existed between a favored beneficiary and the testator;
“2. That the influence of the beneficiary was dominant and controlling in that relationship; [and]
“3. That there was undue activity on the part of the dominant party in procuring the execution of the will.
“It is undisputed that a confidential relationship exist[ed] between [Louise] and [M.C.]. [Louise] was the daughter and the caregiver of [M.C.] and assisted [M.C.] in many of his affairs.
“The Court found from listening to all of the witnesses and reviewing evidence it had before it that [Joe] failed to meet his burden of proof. There was a lack of substantial evidence that [Louise] exercised undue influence over [M.C.]. There was no evidence presented that [Louise] forced or coerced [M.C.] to do anything against his will. There was no evidence presented that [Louise] excised dominance over [M.C.] or that [M.C.] became subservient or subordinate to the will of [Louise], the Proponent.
“Attorney Michael Murphy, a witness for [Joe], testified that he prepared [the 2002 will] and that there were occasions when [M.C.] came unaccompanied by [Louise] to discuss his affairs. There was no direct testimony that [Louise] unduly influenced [M.C.] in any way in preparing his will. There was no evidence that [M.C.’s] will was subordinate to that of [Louise], the Proponent.
“Witnesses [called by Joe, and Joe himself, testified] that [M.C.] was a strong-willed man and that he did not suffer from a diminished mental capacity. Karen Crocker Berklew- testified that [M.C.] was of very sound mind to make his own decisions about things and that he had a strong will to back it up. Another witness for [Joe], Joe Crocker, testified that he saw [M.C.] often and that he never questioned his mental competency. He further testified that [M.C.’s] mind was sharp for his age. Mr. Crocker, in response to a question from [Joe’s] attorney [asking] whether he had ever observed [Louise] pushing [M.C.] around or dominating him in any way responded, ‘You couldn’t push him around.’ When asked if [M.C.] was a strong-willed person, the witnesses] response was, ‘yes.’ [Joe] himself did not testify that in any instance [M.C.’s] will was subordinate to that of [Louise].
“Therefore it is ORDERED, ADJUDGED and DECREED that Judgment as a Matter of Law is GRANTED for [Louise].”

(Capitalization in original.)

Joe timely filed a Rule 59, Ala. R. Civ. P., motion, which the trial court denied. Joe then timely appealed to the supreme court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

Analysis
“ ‘ “When reviewing a ruling on a motion for a JML [judgment as a matter of law], this Court uses the same standard the trial court used initially in deciding whether to grant or deny the motion for a JML. 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. The nonmovant must have presented substantial evidence in order to withstand a motion for a JML. 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. In reviewing a ruling on a motion for a JML, this
Court views the evidence in the light most favorable to the nonmovant and entertains such reasonable inferences as the jury would have been free to draw. Regarding a question of law, however, this Court indulges no presumption of correctness as to the trial court’s ruling.” ’
“City of Birmingham v. Brown, 969 So.2d 910, 915 (Ala.2007) (quoting Waddell & Reed, Inc. v. United Investors Life Ins. Co., 875 So.2d 1143, 1152 (Ala.2003)).
“ ‘JML in favor of a movant who does not assert the claim or affirmative defense but who only opposes it, and who therefore does not bear the burden of proof, is appropriate in either of two alternative cases. One is that the claim or affirmative defense is invalid in legal theory. See Harkins & Co. v. Lewis, 535 So.2d 104 (Ala.1988). The other is that one or more contested essential elements of the claim or affirmative defenses is unsupported by substantial evidence. See Banks v. Harbin, 500 So.2d 1027 (Ala.1986), and McKerley [v. Etowah-DeKalb-Cherokee Mental Health Bd., Inc., 686 So.2d 1194 (Ala.Civ.App.1996) ]. If either alternative be true, JML is appropriate. See Harkins, supra, Banks, supra, and McKerley, supra. If, however, the nonmovant’s claim or affirmative defense is valid in legal theory and is supported by substantial evidence on every contested element, JML is inappropriate irrespective of the presence or weight of countervailing evidence. See Driver [v. National Sec. Fire & Cas. Co., 658 So.2d 390 (Ala.1995) ], and First Financial [Ins. Co. v. Tillery, 626 So.2d 1252 (Ala.1993) ].’
“Ex parte Helms, 873 So.2d 1139, 1143-44 (Ala.2003).”

Furrow v. Helton, 13 So.3d 350, 353 (Ala.2008).

In the case now before us, Joe argues that the trial court erred in granting Louise’s motion for a JML because, he says, he introduced substantial evidence establishing all three of the essential elements of a claim of undue influence. In order to establish a prima facie case of undue influence a claimant must introduce substantial evidence establishing:

“ ‘(1) that a confidential relationship existed between a favored beneficiary and the testator; (2) that the influence of or for the beneficiary was dominant and controlling in that relationship; and (3) that there was undue activity on the part of the dominant party in procuring the execution of the will.’ ”

Furrow, 13 So.3d at 353-54 (quoting Clifton v. Clifton, 529 So.2d 980, 983 (Ala.1988)).

There is no dispute that Louise had a confidential relationship with M.C. and was a favored beneficiary under the 2002 will. However, Joe did not introduce substantial evidence indicating that Louise’s influence was dominant and controlling in her relationship with M.C. or that she engaged in undue activity in procuring the execution of the 2002 will, the execution of the 2002 correction deed conveying the Brent home to her alone, or M.C.’s placement of funds in accounts in his name and Louise’s name with a survivorship clause. Our supreme court “has consistently held that the fact that a person is a favored beneficiary and is in a confidential relationship with the testator does not alone raise a presumption that the will was executed by undue influence.” Hall v. Hall, 502 So.2d 712, 714 (Ala.1987). Every witness who knew M.C., including Joe, testified that M.C. was a strong-willed person. No witness testified that he or she saw any sign that Louise had imposed her will on M.C. Aside from the fact that the execution of the 2002 will, the execution of the 2002 correction deed, and the opening of the bank accounts in M.C.’s and Louise’s names with a right of survivorship favored Louise, there is no evidence whatsoever indicating that her influence was dominant in her relationship with M.C., and, as noted previously, the mere fact that the execution of the 2002 will, the execution of the 2002 correction deed, and the opening of the bank accounts in M.C.’s and Louise’s names with a right of survivorship favored Louise does not raise a presumption that they were procured by undue influence. See Hall v. Hall.

Moreover, there is no evidence indicating that Louise engaged in any undue activity to procure the execution of the '2002 will, the execution of the 2002 correction deed, or the opening of the bank accounts in M.C.’s and Louise’s names with a right of survivorship. M.C. had a prior relationship with Mike Murphy before Mike Murphy prepared the 2002 will and the 2002 correction deed — Mike Murphy had prepared the 1991 will. Louise, on the other hand, had no prior relationship with Mike Murphy. Although Louise accompanied M.C. on some of his visits to Mike Murphy’s office to discuss the 2002 will, she did not accompany him on all the visits. Mike Murphy testified that M.C. stated what terms he wanted in the 2002 will and that he saw no evidence indicating that Louise was imposing her will on M.C. Mike Murphy testified that M.C. had stated that he wanted the 2002 correction deed, that Mike Murphy had advised M.C. to ask Joe to quitclaim his interest in the Brent home instead of executing the correction deed, and that M.C. had not wanted to ask Joe to quitclaim his interest in the Brent home. There is no evidence indicating that Louise was involved in procuring the preparation or execution of the 2002 correction deed. There was evidence indicating that Louise was involved in the opening of the bank accounts in M.C.’s and Louise’s names with a right of survivor-ship; however, there was no evidence indicating that she was doing anything other than complying with the voluntary directions of M.C. In order to establish the undue-activity element of an undue-influence claim, there must be interference by the allegedly dominant party “‘and such interference must go beyond mere compliance with the voluntary directions of the testator.’ ” Furrow, 13 So.3d at 359 (quoting Hall, 502 So.2d at 714). Accordingly, we affirm the judgment of the trial court.

AFFIRMED.

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

      . Scholl v. Stacy, 981 So.2d 1116 (Ala.2007).


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    Natalie HILLBERT v. STATE of Alabama.
    2090500.
    Court of Civil Appeals of Alabama.
    Sept. 24, 2010.
    Rehearing Denied Jan. 14, 2011.

      Warren Rowe, Enterprise, for appellant.
    Troy King, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   MOORE, Judge.

Natalie Hillbert appeals from a judgment ordering the forfeiture of two cashier’s checks in the amount of $9,900 each and a money order in the amount of $200 (“the instruments”). We reverse and remand.

Procedural History

On July 27, 2009, Douglas Albert Vales-ka, district attorney of the 20th Judicial Circuit of Alabama, filed a forfeiture action on behalf of the State of Alabama against Natalie Hillbert, Carlos Cortez a/k/a Luis Hernandez-Arrelleno (“Cortez”), and the instruments. The State attached to the complaint copies of the instruments. On August 14, 2009, Hillbert answered the complaint. The State filed an amended complaint on August 21, 2009. After an ore tenus proceeding, the trial court entered a judgment on January 7, 2010, dismissing Cortez as a party and condemning the instruments to the State. On February 2, 2010, Hillbert moved for a new trial asserting that the evidence was not sufficient to support the forfeiture of the instruments; that motion was denied on February 3, 2010. Hillbert filed her notice of appeal on February 19, 2010.

Facts

Jackie Smith, a sergeant with the special-investigation division of the Houston County Sheriffs office, testified that Cortez was arrested on July 16, 2009, for giving false information regarding his identity; his bond was set at $20,000, cash only. Smith testified that he had asked the personnel at the sheriffs office to contact him if anyone attempted to post a cash bond for Cortez because, based on an ongoing investigation, it was his belief that “these individuals” had no legitimate source of income from which to post a cash bond and because he wanted to investigate the source of any cash bond that anyone attempted to post for Cortez. Smith testified that, on July 24, 2009, he received a call from the sheriffs office notifying him that Hillbert was attempting to post a cash bond for Cortez. Smith testified that he, along with Investigator Rick Clemmons and Investigator Phillip Small, proceeded to the Houston County Jail where he met Hillbert and took a statement from her. Smith testified that he had recorded that statement without Hillbert’s knowledge.

The recorded statement was entered into evidence. Although some portions of the statement are not easily heard, Hill-bert can be heard in the recording stating that she had gotten the money for the bond from “Brenda,” that she did not know Brenda’s last name, and that she did not know where Brenda had gotten the money. Smith testified that Hillbert also told him that the money had come from Brenda Stafford.

Thomas Neil Thompson, a special agent for the Federal Drug Enforcement Agency, testified that Cortez has a long history of drug involvement and that he had also been deported. Thompson specifically testified that he had arrested Cortez approximately five years earlier on federal drug charges after Cortez was caught with approximately 220 pounds of marijuana. Thompson testified that, as a result of those charges, Cortez had been sentenced to approximately 30 months incarceration and had been deported to Mexico, his country of citizenship. Thompson testified, however, that Cortez had been arrested again in 2009 on drug charges.

Thompson testified that Stafford is Cortez’s girlfriend or his common-law wife. He further testified that Stafford had been a target of a long, ongoing investigation by the Drug Enforcement Agency and that he had participated in controlled drug buys from Stafford, the most recent of which had occurred on July 31, 2008. He testified that, to his knowledge, Stafford does not appear to have any visible means of support.

Rick Clemmons, an investigator for the Houston County Sheriffs office who is assigned to the vice/narcotics unit and to the United States Marshal Service, testified that Christopher Kelly Keys was in the same vehicle as Hillbert when Hillbert arrived at the jail to attempt to post a bond for Cortez. Clemmons testified that he had discovered methamphetamine on Keys’s person that same day. Clemmons also testified that Cortez has drug-related charges pending in Geneva County. He further testified that Hillbert had told him that Stafford had given her the $20,000.

Hillbert’s father, Michael Martin, testified that Hillbert had brought him some cash and had asked him to use the cash to obtain a cashier’s check in the amount of $20,000. He testified that there were “bands” around much of the cash and that it was in a paper bag. Martin testified that, when he went to the bank to obtain the cashier’s check, he realized that he had only $19,900. He also testified that an employee at the bank had informed him that any transaction over $10,000 had to be reported. Martin testified that he had returned the cash to Hillbert. Martin further testified that his mother, Martha Martin (“Martha”), had earned quite a bit of money and had given Hillbert a considerable sum of money over the years.

Hillbert testified that her grandmother, Martha, had given her between $200 and $500 every day for about six months. She testified that she assumed the money had come from her grandmother’s business. Hillbert testified that she had agreed to loan Stafford the money to post a bond for Cortez and that she had used the money her grandmother had given her to obtain the instruments. She testified that Keys had obtained one of the cashier’s checks for her; she did not, however, specify who had obtained the other cashier’s check or the money order. Hillbert testified that she had known Stafford for several years and she felt that Stafford would pay her back. She further testified that she had never been charged with a crime and that she earns approximately $200 a week cleaning houses.

Discussion

On appeal, Hillbert argues that the State did not provide sufficient evidence to support the forfeiture of the instruments. She further specifically argues that the fact that an “officer of the law” believes that the funds used to purchase the instruments were derived from proceeds obtained from a violation of the State’s laws concerning controlled substances is not sufficient evidence to support the forfeiture.

“‘On appellate review of a ruling from a forfeiture proceeding at which the evidence was presented ore tenus, the trial court’s findings of fact are presumed to be correct and the judgment will be reversed only if it is contrary to the great weight of the evidence. Holloway v. State ex rel. Whetstone, 772 So.2d 475, 477 (Ala.Civ.App.2000). In other words, a trial court’s judgment based on ore tenus evidence will not be reversed absent a showing that it amounts to an abuse of discretion. Hillegass v. State, 795 So.2d 749, 753 (Ala.Civ.App.2001).
“ ‘In King v. State, 938 So.2d 967 (Ala.Civ.App.2006), this court discussed the State’s burden when it seeks to have property condemned pursuant to the civil-forfeiture statute.
“ ““ “ ‘Under § 20-2-93 [Ala.Code 1975,] the State must establish a prima facie case for the seizure, condemnation, and forfeiture of the property. The standard of proof is reasonable satisfaction. The statute is penal in nature and, as such, should be strictly construed.’ ” ’ Ex parte McConathy, 911 So.2d 677, 681 (Ala.2005) (quoting Holloway v. State ex rel. Whetstone, 772 So.2d [475] at 476 [(Ala.Civ.App.2000)], quoting in turn State v. Smith, 578 So.2d 1374, 1376 (Ala.Civ.App.1991)).”
‘King, 938 So.2d at 970.’
“Atkins v. State, 16 So.3d 792, 795 (Ala.Civ.App.2009).
“Section 20-2-93(a)(4), Ala.Code 1975, provides for the forfeiture of
“ ‘[a]ll moneys, negotiable instruments, securities, or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance in violation of any law of this state; all proceeds traceable to such an exchange; and all moneys, negotiable instruments, and securities used or intended to be used to facilitate any violation of any law of this state concerning controlled substances.’ ”

Williams v. State, 46 So.3d 3, 4-5 (Ala.Civ.App.2010).

In the present case, the trial court did not make any specific findings. Thus, we must “assume that [the trial court] made those findings necessary to support [its] judgment.” Casey v. Manning, 571 So.2d 1024, 1025 (Ala.1990). At the trial, there was conflicting evidence presented as to whether the funds used to purchase the instruments originated from Stafford or Hillbert. We conclude, however, that the trial court could not have resolved the conflict in favor of the funds having originated from Hillbert because, assuming the funds originated from Hillbert, there was no evidence presented to indicate that Hillbert had furnished the funds or intended to furnish the funds “in exchange for a controlled substance in violation of any law of this state,” that the funds were “traceable to such an exchange,” or that the funds were “used or intended to be used to facilitate any violation of any law of this state concerning controlled substances.” Ala.Code 1975, § 20-2-93(a)(4). Additionally, there was no evidence indicating that Hillbert had any history with illegal drug usage or sales, and there was no evidence indicating that Hillbert did not have a legitimate source of income. In fact, Hillbert testified that she earned money cleaning houses and that her grandmother regularly gave her money. Thus, a finding that the funds used to purchase the instruments originated with Hillbert would not support the trial court’s judgment condemning the instruments.

The only finding that would support the trial court’s judgment is a finding that the funds used to purchase the instruments originated from Stafford. In Harris v. State, 821 So.2d 177 (Ala.2001), our supreme court affirmed a trial court’s judgment condemning certain currency. 821 So.2d at 185. The trial court had based its judgment, in part, on the fact that the owner of the currency was known to be involved in narcotics sales and was unemployed and that it was thus improbable that the owner of the currency had been able to save that amount of money. 821 So.2d at 183. Similarly, in the present case, the State presented evidence indicating that Stafford was a known drug dealer who had no legitimate source of income. Thus, assuming that the funds used to purchase the instruments originated with Stafford, the trial court could have concluded that the State had proved to “[a] reasonable satisfaction” that the funds were “traceable to ... an exchange [for a controlled substance].” See Williams, supra; and § 20-2-93(a)(4).

We note, however, that Stafford was not a party to the forfeiture action. “[T]he issue of the failure to join an indispensable party may ... be raised by an appellate court ex mero motu.” J.K.L.B. Farms, LLC v. Phillips, 975 So.2d 1001, 1005 (Ala.Civ.App.2007). “ ‘The absence of a necessary and indispensable party necessitates the dismissal of the cause without prejudice or a reversal with directions to allow the cause to stand over for amendment.’” Allbritton v. Dawkins, 19 So.3d 241, 244 (Ala.Civ.App.2009) (quoting J.C. Jacobs Banking Co. v. Campbell, 406 So.2d 834, 850-51 (Ala.1981)). Because the trial court implicitly found that the instruments belonged to Stafford, Stafford was the real party in interest and an indispensable party to this case. See, e.g. Hodge v. State, 643 So.2d 982, 983-84 (Ala.Civ.App.1993) (holding that the owner of a vehicle subject to forfeiture proceedings was the real party in interest and an indispensable party to the forfeiture action). See also Hildreth v. State, 51 So.3d 344, 353 (Ala.Civ.App.2010) (Moore, J. dissenting). Thus, we must reverse the trial court’s judgment and remand the cause for the trial court to dismiss the case or “ ‘to allow the cause to stand over for amendment.’ ” Allbritton, 19 So.3d at 244.

REVERSED AND ' REMANDED WITH INSTRUCTIONS.

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

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


author: THOMAS, Judge. THOMAS, Judge,

text:
    Phyllis JOHNSON v. Rodney JOHNSON.
    2090699.
    Court of Civil Appeals of Alabama.
    Jan. 7, 2011.

      Amber Yerkey James of James Family Law Center, LLC, Huntsville, for appellant.
    Sherman B. Powell, Jr., Decatur, for appellee.
   THOMAS, Judge.

Phyllis Johnson (“the mother”) and Rodney Johnson (“the father”) were married in 1999. The parties have two children, a son who was born in 2002 and a daughter who was born in 2005. In approximately September 2008, the parties separated, and, in March 2009, the mother sued the father, seeking a divorce and custody of the parties’ children. The father counterclaimed for a divorce and also sought custody of the children. Pursuant to the parties’ out-of-court agreement, the mother had pendente lite custody of the daughter and the father had pendente lite custody of the son. This agreement was later set out in the trial court’s pendente lite order in October 2009. In March 2010, the trial court entered a judgment that, among other things, awarded the parties joint legal custody of the children, awarded the mother physical custody of the daughter, and awarded the father physical custody of the son. The mother appeals.

The evidence at trial was sparse. Both parties are employed. The mother works for Ilpea Industries. Her hours are 5:00 a.m. to 3:00 p.m. four days a week; she does not typically work on Fridays. The mother testified that her father, the children’s maternal grandfather, would meet her at her house on Mondays, Tuesdays, and Thursdays and that he would take the daughter to his home to get ready for preschool. The mother said that she would take the daughter to the father’s mother on Wednesdays and when she worked on Fridays.

The father works for his father at a used-automobile dealership. His hours are 9:00 a.m. to 5:00 p.m. He said that he would pick up the son from school and that the son would stay at the automobile dealership with him until 5:00. According to the father, the office at the automobile dealership included a play area for the son, complete with toys, a kitchen area, and a place for the son to nap if he became tired.

The mother contended that she had been the primary caregiver for both children during the marriage even though she had also worked outside the home. She said that the father would come home from work and then go and play video games with his friends. The mother indicated that the father’s family interfered “a lot” and that the father made her feel like he sided with his family over her. She also complained that the father did not do his fair share of the work around the home, noting that she worked outside the home, took care of the children, cleaned the home, and did yard work. The father denied spending considerable time away from the home to play video games and said that he had spent his time with his family most evenings after work. The father said that both he and the mother had provided care for both children during the marriage, depending largely on their work schedules.

After the parties separated, each parent cared for the child in his or her custody. Neither party testified that they had found fault with the other parent’s caregiving in general. However, the father did testify that the mother had once punished the son by spanking him and locking him in a dark room. This action by the mother, said the father, caused the son not to want to visit the mother for a time.

The mother admitted that she had spanked the son for misbehaving on the occasion at issue and that, because it was the son’s bedtime, she had sent him to his room, where she had turned off the light. She denied that she locked him in the dark room, stating instead that the door had no doorknob or lock and that the door was cracked open. The mother further explained that she sometimes used time-outs and sometimes spanked the children with her hand on their bottoms as methods of discipline but that time-outs were a more effective discipline method for the daughter than for the son. The record does not contain any testimony regarding the father’s discipline methods.

The record indicates that the mother had had difficulty with her living arrangements during the pendente lite period. She first lived with the father’s mother. She then rented a house that required fairly substantial improvements, which she had had made to the house. That house flooded in early December 2009, and the mother was temporarily living with a coworker at the time of trial in January 2010. However, the mother said that she would be moving back into her house soon. The father lived with his father after the foreclosure of the mortgage on the marital residence, which occurred sometime after the parties’ separation. The father currently has his own residence on land owned by his grandparents.

As noted above, the parties had agreed to a split-custody arrangement pendente lite. The mother testified that she had allowed the son to live with the father pendente lite because the son was enrolled in a school near the former marital residence and she was living farther away from that school after the separation. The daughter, said the mother, was enrolled in preschool at the time of trial, but she had not been enrolled in school at the time the parties separated.

The trial court did not specify its reason for separating the siblings in its judgment. However, the trial court did question the father at trial concerning how long the children had been living separately. The father told him that the children had been living apart for approximately two years.

On appeal, the mother argues that the trial court’s custody judgment should be reversed. She relies on the principle that a trial court should not enter a custody award that serves to separate siblings absent a compelling reason to do so and that such a custody award will be affirmed only if the separation is in the best interest of the children. See Dunn v. Dunn, 972 So.2d 810, 814-15 (Ala.Civ.App.2007). As we explained in Dunn,

‘[a]s a general rule, this court does not favor a custody determination where siblings are separated. Jensen v. Short, 494 So.2d 90 (Ala.Civ.App.1986). If, however, after receiving ore tenus evidence, the trial court determines there is a compelling reason for the separation, then we are required to review its decision with a strong presumption of correctness. Kennedy v. Kennedy, 517 So.2d 621 (Ala.Civ.App.1987). The trial court is also guided by the interpersonal relationship between each child and parent, and the interpersonal relationship between the children. Cole v. Cole, 442 So.2d 120 (Ala.Civ.App.1983).
“ ‘It is also well established that in an initial custody determination, the parties stand on equal footing, without a favorable presumption for either party. Santmier v. Santmier, 494 So.2d 95 (Ala.Civ.App.1986). We have also held that the relationship of the child to each parent is one of the factors that should be considered. Murph v. Murph, 570 So.2d 692 (Ala.Civ.App.1990). The paramount consideration of the court in a child custody case, however, is the child’s best interest. Jensen, 494 So.2d 90.’
“Phomsavanh v. Phomsavanh, 666 So.2d 537, 539 (Ala.Civ.App.1995).”

972 So.2d at 814-15. Other factors relevant to a determination of the best interest of the children in a custody case are “the sex, age, and health of the [children]; the [children’s] emotional, social, moral, and material needs; and the parties’ ages, character, stability, health and home environment.” Mardis v. Mardis, 660 So.2d 597, 599 (Ala.Civ.App.1995).

The mother argues that no compelling reason for separating the children exists in this case and that the evidence does not establish a basis for determining that the separation of these siblings is in their best interest. The record contains no evidence concerning the interpersonal relationship between the children, and it reveals very little about the relationships between the parents and each child. The only indication of a stressed relationship between the mother and the son is the testimony that,for a time, the son did not wish to visit with the mother after the incident in which the mother allegedly punished him by locking him in a dark room. The record suggests that the parents had agreed pen-dente lite that the son’s best interest would be furthered by keeping him in the school in which he was enrolled, and the trial court may well have considered the fact that the son had attended that school for at least three years by the time of trial when it decided to place the son in the custody of the father.

However, based on the lack of evidence concerning the relationship between the children or between the children and the parents, we cannot discern any reason for the separation of these two siblings, who are only three years apart in age. See Pettis v. Pettis, 334 So.2d 913, 914 (Ala.Civ.App.1976) (reversing a child-custody award separating three-year-old and five-year-old siblings, noting “the further consideration of the need of the children to be together” and stating that “[a] separation of two such young children should, in the judgment of this court, be permitted only out of extreme necessity”). In short, because of the dearth of evidence relating to the factors relevant to the custody determination, we cannot conclude that the trial court’s judgment separating these siblings is in their best interest. The trial court’s custody judgment is therefore reversed.

REVERSED AND REMANDED.

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

THOMAS, J., concurs specially.

THOMAS, Judge,

concurring specially.

Although I authored Alverson v. Alverson, 28 So.3d 784 (Ala.Civ.App.2009), in which I applied the “compelling-reason” requirement to a custody judgment separating siblings, and although I issued a special writing concurring in the result in A.B. v. J.B., 40 So.3d 723, 735-36 (Ala.Civ.App.2009) (Thomas, J., concurring in part and concurring in the result), in which I maintained that Alabama law required evidence of a compelling reason to support a custody judgment separating siblings, a majority of this court has determined that “our caselaw more accurately holds that siblings may be separated if the trial court concludes, based on sufficient evidence in the record, that the separation will serve the best interests of the children at issue.” A.B., 40 So.3d at 729. Because I maintain that the compelling-reason requirement is “a guiding principle designed to assist the trial court in determining the best interest of the children whose custody it must decide,” 40 So.3d at 736 (Thomas, J., concurring in part and concurring in the result), as opposed to a separate burden upon the trial court to have an especially convincing reason for a judgment separating siblings, I will conform to the majority’s determination that no “compelling reason” is required in order to separate siblings from one another. However, I do believe that the requirement now imposed — that the record reflect evidence that a separation of the siblings is in their best interest — is simply another way of requiring that a judgment separating siblings be supported by actual evidence that a separation is warranted as opposed to being a convenient division of children among two divorcing parents based on the number of children or their age or gender.


author: THOMAS, Judge. MOORE, Judge,

text:
    Carl Allen GOETSCH v. Joyce P. GOETSCH.
    2090718.
    Court of Civil Appeals of Alabama.
    Jan. 7, 2011.

      Nancy S. Gaines and James M. Gaines of Gaines & Gaines, L.L.C., Magnolia Springs, for appellant.
    J. Brice Callaway, Huntsville, for appel-lee.
   THOMAS, Judge.

This is the fourth time these parties have been before this court on appeal from divorce or post divorce proceedings. Goetsch v. Goetsch, 990 So.2d 403 (Ala.Civ.App.2008) (“Goetsch III”); Goetsch v. Goetsch, 949 So.2d 155 (Ala.Civ.App.2006) (“Goetsch 77”); and Goetsch v. Goetsch (No. 2011202, May 30, 2003), 885 So.2d 858 (Ala.Civ.App.2003) (table) (“Goetsch I”). In this appeal, Carl Allen Goetsch (“the father”) appeals the trial court’s imposition of postminority educational support for the benefit of the parties’ oldest son, Chris, on the basis that Chris is the beneficiary of a trust that is available to provide funds to defray the costs of his college education.

The father and Joyce P. Goetsch (“the mother”) have had an acrimonious post divorce relationship. In an earlier opinion issued by this court, we outlined the history of this family and the issues surrounding the custody and visitation provisions relevant to the parties’ three children, Chris, Michael, and Courtney. Goetsch III, 990 So.2d at 406-11. Of the three children, Chris has maintained the most contact with his father, but even he describes their contact as minimal.

Chris began his undergraduate studies at Auburn University in August 2008. In December 2008, the mother filed an action seeking postminority educational support for Chris. The father answered the petition and asserted in his answer that an “abundant trust [had been] established for [Chris’s] education.”

After a trial over three days in June and August 2009, the trial court entered a judgment ordering the father to be responsible for 80% of Chris’s postminority educational expenses. The judgment states, in part, that

“[t]he Court has considered and expressly rejects the assertion of the [father] that he should avoid any responsibility for his son’s college education because of the trust that currently exists in favor of that child. The Court has examined the trust instrument and received testimony of the Trustee, by way of deposition, and determines that the trust explicitly indicates it should not be used to defray obligations of the parents. Further, the Court notes that educational expenses were not the primary purpose of said trust, as established, and that the trust funds would remain available for education after a bachelor’s degree, four years or age 23 and for all the other trust purposes.”

In addition, the judgment contains the typical restrictions on postminority-educational-support awards, including requiring Chris to maintain a “C” average, requiring that Chris be a full-time student, and providing that the father’s obligation expires upon Chris’s completion of an undergraduate degree or Chris’s reaching the age of 23 years. The judgment further states that it “relates back to the date that the parties’ child was accepted to college and each party is credited with any expense paid or advanced by either to date”; however, the judgment does not specify a dollar amount of previously incurred expenses that the father must pay. The father appeals.

Generally, the decision whether to award postminority educational support is within the discretion of the trial court after consideration of the factors set out in Ex parte Bayliss, 550 So.2d 986, 987 (Ala.1989). Gabel v. Lores, 608 So.2d 1365, 1366 (Ala.Civ.App.1992). When the evidence regarding those factors is in conflict, the trial court’s factual findings are presumed correct. Abernathy v. Sullivan, 676 So.2d 939, 941 (Ala.Civ.App.1996). However, the trial court’s legal conclusions and its application of the law to the facts are not clothed with such a presumption; review of those matters is de novo. Henderson v. Henderson, 978 So.2d 36, 39 (Ala.Civ.App.2007).

In May 2008, Chris graduated from high school. The father hosted a barbeque for Chris and four friends in either late May or early June 2008. Around that time, Chris and the father discussed generally Chris’s plans for college and the father explained to Chris that a trust set up by the father’s parents, Karl and Anne Goetsch (“the paternal grandparents”), was available to pay for Chris’s educational expenses. The father encouraged Chris to contact one of the trustees of Chris’s trust, Dr. Donald Rowell, the father’s brother-in-law. The other trustee of Chris’s trust is one of the father’s sisters, Elizabeth Ro-well.

Chris did correspond with Dr. Rowell on a few occasions regarding his college plans, which, at one point, included considering attending college in California. Dr. Rowell informed Chris that the trust would be able to fund his undergraduate education and possibly even fund at least part of a postgraduate degree. Chris then informed Dr. Rowell that the father was refusing to pay for Chris’s college education and that the mother was going to take the father to court to seek payment of what Chris termed a “parental obligation” to pay for that education.

Chris also requested that Dr. Rowell advance trust funds to pay for a new automobile that Chris had selected — a 2008 Infiniti G37 — which cost an estimated $43,000. Dr. Rowell denied Chris’s request, stating in his electronic-mail response to Chris that “your grandparents ... would be upset if the initial outlay from the trust intended for your education was used to purchase a $43,000 sports car.” Dr. Rowell did, however, advance trust funds to pay for a laptop computer for Chris. Dr. Rowell also said that he had agreed with Chris that the trust should not pay anything toward his first year’s college expenses until the trial court ruled on the pending petition seeking post-minority educational support.

The father makes several arguments on appeal, including that the trial court erred when it determined that the trust could not be used to fund Chris’s education because the trust was not intended to defray the obligations of the parents and because education was not the trust’s primary purpose and that the trial court erred because, under California law, the father was not obligated to pay postminority educational support for Chris. However, because we find it dispositive, we will first address the father’s argument that the trial court did not properly consider Chris’s trust as a financial resource available to Chris to defray the costs of his own college education. See Ex parte Bayliss, 550 So.2d at 987 (stating that a trial court considering whether to order a parent to pay postminority educational support “shall consider all relevant factors that shall appear reasonable and necessary, including primarily the financial resources of the parents and the child” (emphasis omitted; emphasis added)). The mother argues, however, that because Chris has no control over the funds of the trust and must rely on the trustees to disburse the funds as the trustees see fit, the trial court properly determined that the trust was not an available financial resource for Chris.

The trust instrument clearly indicates that the trust fund established for Chris by the paternal grandparents was intended to, among other things, provide funding for educational expenses. The evidence at trial included the deposition testimony of Dr. Rowell and correspondence between Chris and Dr. Rowell regarding the trust and Chris’s educational plans. Dr. Rowell testified that funding Chris’s education was a primary reason that the paternal grandparents established the trust. In addition, Dr. Rowell’s correspondence with Chris indicated that Dr. Rowell, as trustee, was willing to disburse trust funds to defray the costs of “tuition, fees, rent, food, telephone, and books.” Dr. Rowell indicated by electronic mail to Chris that “transportation, health-care allowance and personal expenses” would be the responsibility of Chris’s parents. Dr. Rowell further testified that the paternal grandparents had in mind the purpose of paying for a college education when they established the trust for Chris. Dr. Rowell testified that he had expected that the trust would fund Chris’s college education and that he stood ready to effectuate the educational purpose of the trust by authorizing payment of Chris’s college tuition and related expenses. Thus, although Chris may not have ultimate control over the trust funds, the evidence established that the trust has as one of its main purposes funding Chris’s college education and that one of the trustees had indicated a willingness to comply with any reasonable request from Chris that the trust do so.

As noted above, in determining whether and to what extent to require a parent to pay postminority educational support, a trial court must consider the financial resources of both the parents and the child. The term used by our supreme court in Ex parte Bayliss is “financial resources,” which indicates that a trial court may consider all potential sources of financial support. A trial court is not restricted to considering only a parent’s income when considering whether to award postminority educational support. See Thrasher v. Wilburn, 574 So.2d 839, 841 (Ala.Civ.App.1990). Instead, a trial court should consider whether the parent “has sufficient estate, earning capacity, or income to provide financial assistance without undue hardship.” Thrasher, 574 So.2d at 841. Thus, a trial court considering the financial resources of the child is not limited to only those funds that are earned by the child as income; in fact, trial courts have often considered a child’s grants or scholarship funds when determining whether to award postminority educational support and, if so, what percentage or amount of postminority educational support is appropriate. We agree with the father that the trial court erred in precluding from its consideration Chris’s trust. Therefore, Chris’s trust, which, based on the evidence, is available to pay for Chris’s college tuition and certain related expenses, should have been considered as Chris’s financial resource by the trial court.

In the above-quoted excerpt from the trial court’s judgment, the trial court determined that the trust could not be used to pay for Chris’s college education because the trust specifically stated that it was not intended to be used to defray any obligation the parents had to support Chris. The trust instrument does state that “no payments to the beneficiary shall be made so as to reduce, diminish, or discharge the legal liability of any person (including the trustors and the trustee) for the support of the beneficiary.” However, by determining first that the trust could not be used to defray Chris’s postminority educational expenses because Chris’s parents were obligated to do so, the trial court erred. Until the trial court applied the factors set out by Ex parte Bayliss and its progeny to determine whether the father should be required to pay postminority educational support, the father had no such obligation under the law.

Before it imposed any obligation for postminority educational support, the trial court was required to consider whether the trust was a financial resource available to Chris. Because it failed to consider Chris’s trust to be a financial resource available to Chris, we must reverse the judgment ordering the father to pay 80% of Chris’s postminority educational expenses. Accordingly, we remand this cause to the trial court for it to consider Chris’s trust as a financial resource available to Chris. Because we are reversing on this ground, we pretermit discussion of the father’s other arguments in favor of reversal.

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

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

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

MOORE, J., concurs in the result, with writing.

MOORE, Judge,

concurring in the result.

I agree that the judgment should be reversed and the case remanded to the trial court, but I do so for reasons different than those upon which the main opinion relies. As explained below, I believe that the trial court erred in construing the trust instrument and that that erroneous construction led the trial court to exclude the trust funds from its consideration as to whether Chris Goetsch had a financial need for postminority educational support from his parents. I also believe that this court should address the other issues raised by the father so that, on remand, the trial court can correctly and finally resolve this dispute.

In Ex parte Bayliss, 550 So.2d 986 (Ala.1989), our supreme court established that, under certain circumstances, parents may be ordered to pay educational expenses of a child even though the child has attained the age of majority and is otherwise emancipated. Under Bayliss, the primary factor to be considered is whether the child has a need for financial assistance in order to pursue his or her education. That need, of course, depends on the “financial resources of ... the child.” 550 So.2d at 987. Obviously, if a child has available financial resources by which the expenses of his or her education can be fully met, the child would have no need for Bayliss support from his or her parents. Likewise, if the child has the financial resources to pay a portion of his or her educational expenses, the child would be only partially dependent on his or her parents for support. It is only when a child has no financial resources to pay educational expenses that his or her parents may be ordered to carry that entire burden. Thus, in every Bayliss case, a trial court must initially determine the scope of the financial resources available to the child to fund his or her education before proceeding to any further considerations.

In this case, the evidence shows that the paternal grandparents of Chris established a trust for his benefit. Section 4.1 of the trust instrument provides, in pertinent part, that the “[n]et income or principal of the trust may be used when [Chris] is in need of funds to meet the reasonable expenses of[, among other things,] ... [education ... of [Chris].... ” In refusing to consider the trust funds as a financial resource available to Chris to pay his educational expenses, the trial court concluded that “educational expenses were not the primary purpose of said trust....”

I do not believe it matters whether the trust funds were intended primarily for Chris’s education. The fact remains that the settlors specifically expressed that the trustees could use the principal and income from the trust to pay Chris’s reasonable educational expenses. The only pertinent inquiry was whether the trust maintained funds available for that permissible use, regardless of the primacy of other permissible uses. In that regard, the evidence shows that the trust had accumulated $237,305.71 in assets by the time of the trial. The evidence also shows that the trustees, to whom § 4.1 of the trust instrument gave total discretion as 'to how the trust funds were to be used, had committed to Chris to pay from the trust funds the costs of tuition, fees, rent, food, a telephone, a laptop computer, Internet access, and books while he pursued his undergraduate degree at Auburn University, having refused to pay only incidental costs, such as transportation and health insurance. Thus, it is undisputed that the trust has funds that the trustees have designated to be used to pay the reasonable costs of Chris’s college education.

The trial court nevertheless concluded that those funds should not be considered a financial resource available to Chris because “the trust explicitly indicates it should not be used to defray obligations of the parents.” Presumably, the trial court was referring in its judgment to the proviso to § 4.1, which states

“that no payments to or for the benefit of [Chris] shall be made so as to reduce, diminish or discharge the legal liability of any person (including the trustors and the trustee) for the support of [Chris].”

The trial court evidently reasoned that, because a parent may have a legal liability to pay for the educational expenses of a child under Bayliss, the settlors intended that no trust funds would be used to relieve a parent of that liability.

However, the trust instrument specifically states that the trust is to be interpreted and administered in accordance with California law. Hence, the settlors must have intended by the proviso in § 4.1 only that the trust funds could not be used to defray the liability that any person would have to support Chris under California law. In referring to “legal liability ... for ... support,” the settlors were not referring to any obligation to pay postmi-nority support that a court could impose involuntarily upon a parent under Alabama law.

Unlike Alabama law, California law does not authorize a state court to impose a duty on parents to fund the postsecondary educational expenses of a child past the age of 18 unless the parents have voluntarily agreed to do so. See Cal. Fam.Code § 3901. The record contains no evidence indicating that the parents voluntarily agreed that the father would pay for Chris’s postsecondary educational expenses after he attained the age of 18. Hence, under California law, the father has no duty to pay any of those expenses and the payment of those expenses by the trust cannot possibly defray any of the father’s “legal liability” to support Chris. Contrary to the conclusion reached by the trial court, the terms of the trust do not prevent the trustees from paying any of the educational expenses the trustees have agreed to fund.

Because the terms of the instrument allow the trustees to pay the reasonable expenses for Chris’s education, and because the evidence is undisputed that funds have been designated for that purpose, the trial court should have considered those funds as a financial resource available to Chris when assessing his need for Bayliss support. By failing to do so, the trial court essentially determined that Chris would be totally dependent on his parents to fund his college education. That error resulted in an award of postmi-nority support that far exceeds Chris’s true financial need. For that error, the judgment is due to be reversed and the case remanded for the trial court to reconsider its award in light of the availability of the trust fund to pay many of the costs of Chris’s college education.

Because it is clear that the trustees will not agree to pay all the expenses within the scope of a Bayliss award, on remand the trial court will have to consider whether the father will have to pay any part of the remaining expenses. The father argues that he should not have to do so because the undisputed evidence showed that he and Chris have a strained relationship. In Bayliss, the supreme court held that the relationship between the parent and the child is a factor that a trial court should consider when considering an award of postminority support. 550 So.2d at 987. This court, however, “has repeatedly stated that the existence of a strained relationship between parent and child does not prevent the child from having the opportunity to obtain a college education.” Stinson v. Stinson, 729 So.2d 864, 869 (Ala.Civ.App.1998). “In no instance has this court reversed a trial court’s imposition of postminority educational support solely because the evidence at trial reflected that the relationship between parent and child was so broken as to be a complete impediment to the receipt of such support.” Dunigan v. Bruning, 64 So.3d 645, 651 (Ala.Civ.App.2010). Although a trial court may consider the poor relations between a parent and a child, it cannot, for that reason alone, prevent a child from receiving financial assistance in going to college. Newman v. Newman, 667 So.2d 1362, 1368 (Ala.Civ.App.1994). In its judgment, the trial court obviously determined that the relationship between Chris and the father would not diminish in any way the obligation of the father to pay Bayliss support. I find no basis for placing the trial court in error in that regard; however, on remand, I see no reason why the trial court may not again reassess that factor when deciding what contribution, if any, the father should have to pay for the educational expenses the trust will not cover.

I also agree with the main opinion that the trial court erred in ordering the father to pay Bayliss support retroactive to the date Chris began attending college. 66 So.3d at 792 n. 3. A court may award Bayliss support retroactive only to the date of the filing of the petition for such support. Ullrich v. Ullrich, 736 So.2d 639, 643 (Ala.Civ.App.1999). I further agree with the father that any retroactive award should specify the exact amount awarded and that that amount must be based on evidence in the record. See Stanford v. Stanford, 628 So.2d 701, 704 (Ala.Civ.App.1993). On remand, the trial court should determine exactly the amounts incurred by Chris for recoverable educational expenses since the date of the filing of the petition for Bayliss support. The trial' court must then specify what portion of those expenses not payable by the trust the father shall pay, if any.

      . Carl Allen Goetsch also appeared twice as a petitioner seeking a writ of mandamus in this court. Ex parte Goetsch (No. 2091013, September 8, 2010),- So.3d -- (Ala.Civ.App.2010) (table); Ex parte Goetsch (No. 2060259, February 6, 2007), 8 So.3d 1047 (Ala.Civ.App.2007) (table).

      . We reject the argument that California law would govern the determination of what duty the father might have to support Chris; because the duty to support one’s minor child is determined by the state of the parent’s domicile, the father’s potential duty to pay postminority educational support would also be determined under the law of the father’s domicile — Alabama. See Yarborough v. Yarborough, 290 U.S. 202, 211, 54 S.Ct. 181, 78 L.Ed. 269 (1933) ("The character and extent of the father's obligation, and the status of the minor, are determined ordinarily, not by the place of the minor’s residence, but by the law of the father's domicile.”); Ex parte Bayliss, 550 So.2d at 993 (stating that, ”[i]n expanding the exception to the general rule (that a divorced, noncustodial parent has no duty to support his child after that child reaches majority) to include the college education exception, we are merely refusing to limit the word ‘children’ to minor children”).

      . We note, however, that the father argues that the trial court could only make its judgment retroactive to the date of filing of the petition seeking postminority educational support and not to the date Chris began his college education, which predated the filing of the petition; he is correct. See, e.g., Preussel v. Preussel, 874 So.2d 1124 (Ala.Civ.App.2003).

      . The main opinion rejects the father's argument on this point because Alabama law, as the law of the parent's domicile, controls the determination of the extent of the duty of a parent to support a child. See 66 So.3d at 791 n. 2. The father is not seeking to avoid Alabama law. The father acknowledges that, under Alabama law, a trial court may impose upon him a duty to pay Chris's postminority educational support if Chris does not have the financial resources available to meet his educational expenses. The father is simply arguing that, in determining the availability of the trust funds to defray the costs of Chris's education, California law governs. Accepting the father's argument does not, in any manner, violate any law requiring the duty of support to be determined by the law of the domicile of the parent.


text:
    PC & ALL, INC., d/b/a Mac & More v. Gustavius MAXIE and Lakesha McNeil.
    2090776.
    Court of Civil Appeals of Alabama.
    Jan. 7, 2011.
    Robert Rash, Montgomery, for appellant.
    Belinda A. Weldon, Prattville, for appel-lees.
   BRYAN, Judge.

PC & All, Inc., d/b/a Mac & More (“PC”), the plaintiff below, appeals from a judgment in favor of Gustavius Maxie and Lakesha McNeil, the defendants below. We reverse and remand.

On September 25, 2009, PC sued Maxie and McNeil, alleging that Maxie and McNeil had breached a contract to purchase two computers from PC and that Maxie and McNeil had converted those computers. Together with its complaint, PC filed a motion for a temporary restraining order (“TRO”) and for a preliminary injunction compelling Maxie and McNeil to preserve the computers pending the adjudication of PC’s action.

On October 21, 2009, the trial court scheduled a hearing regarding PC’s motion for a TRO for November 17, 2009. Maxie and McNeil were served with process on October 26, 2009. On November 12, 2009, Maxie and McNeil’s attorney filed a notice of appearance and a pleading notifying the trial court that Maxie and McNeil’s attorney was scheduled to be trying a case in another court on the date scheduled for the hearing regarding PC’s motion for a TRO and moving the trial court to continue that hearing. On November 17, 2009, PC and its attorney appeared in open court for the hearing regarding PC’s motion for a TRO. When Maxie, McNeil, and their attorney failed to appear, the trial court entered a default judgment against Maxie and McNeil and granted PC leave to prove its right to relief within 15 days.

On November 25, 2009, Maxie and McNeil filed an answer and counterclaim. That pleading does not include a certificate of service, and PC contends that it was not served with that pleading. On November 30, 2009, Maxie and McNeil moved the trial court to set aside the default judgment and filed a demand for a jury trial. On December 1, 2009, the trial court made a notation on the case-action summary stating “[djefault set aside, case set for hearing 12-15-09 @ 9:00,” and the clerk of the trial court mailed copies of that notation to the parties’ attorneys. On December 15, 2009, the trial court entered an order stating that the case had been called, stating that the parties had been present with their attorneys, and ordering that, “[ujpon hearing the representation and testimony w/o record, judgment is entered in favor of [Maxie and McNeil].”

On January 13, 2010, PC moved the trial court to vacate that judgment on the ground, among others, that the trial court had not given PC adequate notice that the December 15, 2009, hearing would be a trial on the merits of the case. PC also moved the trial court to strike Maxie and McNeil’s answer on the grounds that Max-ie and McNeil had not served PC with their answer and had not included a certificate of service in their answer. In addition, PC moved the trial court to enter a default judgment against Maxie and McNeil on the ground that Maxie and McNeil had not properly answered or otherwise pleaded because, PC said, Maxie and McNeil had not served PC with their answer. Following a hearing, the trial court denied PC’s motions to vacate the judgment, to strike Maxie and McNeil’s answer, and to enter a default judgment against Maxie and McNeil. Thereafter, PC timely appealed to this court.

The issues raised by PC are questions of law, which we review de novo. See Davis v. Hanson Aggregates Southeast, Inc., 952 So.2d 330, 334 (Ala.2006). First, PC argues that the judgment of the trial court should be reversed because, PC says, the trial court did not give PC adequate notice that the December 15, 2009, hearing would be a trial on the merits. In pertinent part, Rule 40, Ala. R. Civ. P., provides:

“(a) Setting of Cases. The trial of actions shall be set by entry on a trial docket or by written order at least sixty (60) days before the date set for trial, subject to the following exceptions: (1) where, when the interests of justice require, the court continues the trial to a date that is less than sixty (60) days from a previously set trial date that, was set in compliance with this rule; (2) where a shorter period of time is available under the provisions of Rule 55[, Ala. R. Civ. P.] (‘Default’); (3) where a shorter period is available under the provisions of Rule 65 [, Ala. R. Civ. P.] (‘Injunctions’); (4) where a shorter period of time serves the ends of justice in domestic relations cases; (5) where a shorter period of time selves the ends of justice in a habeas corpus or other similar proceeding where the liberty interest of an individual is at issue; (6) where an action has been appealed to the circuit court for de novo review, in which event the time period between setting and trial date shall be at least thirty (30) days; and (7) where a shorter period of time is otherwise provided by law or these rules or agreed to by all parties.”

(Emphasis added.) In pertinent part, Rule 65(a)(2), Ala. R. Civ. P., provides that, “[bjefore or after the commencement of the hearing of an application for a preliminary injunction, the court may order the trial of the action on the merits to be advanced and consolidated with the hearing of the application.”

In Isler v. Isler, 870 So.2d 730 (Ala.Civ.App.2003), James Paul Isler (“the husband”) sued Halee Denise Isler (“the wife”) for a divorce on January 18, 2002. On February 5, 2002, the wife filed three motions: (1) a motion for a TRO, (2) a motion for a protective order, and (3) a motion for temporary custody of the parties’ child. On February 7, 2002, two days after the wife had filed her motions, the trial court made a notation on the case-action summary, stating “ ‘[t]his case is set for hearing on March 1, 2002 at 8:30 AM.’ ” 870 So.2d at 731. Between February 7, 2002, and March 1, 2002, the wife answered the husband’s complaint and asserted a counterclaim against the husband, and the husband answered the wife’s counterclaim. At the hearing on March 1, 2002, the trial court, over the wife’s objection, proceeded to conduct the trial on the merits of the action. Thereafter, the trial court entered a final judgment, and the wife appealed to this court. Although Rule 40(a)(4) authorizes a trial court to shorten the time for notice of the trial setting “where a shorter period of time serves the ends of justice in [a] domestic relations case[],” this court nonetheless reversed the judgment of the trial court. We explained:

“We conclude that the trial court abused its discretion in shortening the time for notice of the trial setting; under the particular facts of this ease, the notice shortening the time for trial did not sufficiently inform the wife that the trial court had shortened the time for trial and that it intended to conduct a trial on the merits on March 1, 2002.”

870 So.2d at 735.

Like the notice at issue in Isler, which merely stated that “ ‘[t]his case is set for hearing on March 1, 2002 at 8:30 AM,’ ” 870 So.2d at 731, the notice in the action now before us, which merely stated “[d]e-fault set aside, case set for hearing 12-15-09 @ 9:00,” did not sufficiently inform PC that the trial court had shortened the time for notice of a trial on the merits. Accordingly, we reverse the judgment of the trial court and remand the action to the trial court for further proceedings consistent with this opinion.

PC also argues that the trial court erred in denying its motion to strike Maxie and McNeil’s entire answer because, PC says, Maxie and McNeil failed to serve the answer on PC and failed to include a certificate of service as required by Rules 5(a) and (d), Ala. R. Civ. P. However, PC has cited no legal authority supporting the proposition that Maxie and McNeil’s failure to comply with Rules 5(a) and (d) justifies the striking of their answer. “We have unequivocally stated that it is not the function of this Court to do a party’s legal research or to make and address legal arguments for a party based on undelineated general propositions not supported by sufficient authority or argument. Spradlin v. Spradlin, 601 So.2d 76 (Ala.1992).” Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251 (Ala.1994). Therefore, we decline to consider this argument made by PC.

Finally, PC argues that the trial court erred in denying PC’s motion to strike Maxie and McNeil’s answer because, PC says, Maxie and McNeil’s answer named a nonparty as a plaintiff in the action. However, we decline to consider this argument because the record does not indicate that PC presented it to the trial court. See Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992) (“This Court cannot consider arguments raised for the first time on appeal; rather, our review is restricted to the evidence and arguments considered by the trial court.”).

REVERSED AND REMANDED.

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

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


author: THOMAS, Judge.

text:
    J.M.H. v. J.L.W. IV.
    2090951.
    Court of Civil Appeals of Alabama.
    Jan. 7, 2011.
    Christina L. Dixon, Huntsville, for appellant.
    Gabrielle N. Helix, Huntsville, for appel-lee.
   THOMAS, Judge.

J.M.H. (“the mother”) appeals from the Madison District Court’s judgment establishing her child-support obligation and the child-support obligation of J.L.W. IV (“the father”) concerning the parties’ minor child (“the child”). We reverse the trial court’s judgment.

Facts and Procedural History

The facts are undisputed. The child was born to the parties on July 14, 2008. The parties were involved in an intimate relationship until May or June 2009 and continued to reside together until September 2009, at which time the mother moved out of the father’s house.

On September 21, 2009, the father filed a “verified petition to establish paternity, child custody, child support, and request for pendente lite relief.” On October 9, 2009, the mother filed an answer and a counterclaim against the father. The trial court set the matter for a pendente lite hearing on December 15, 2009. On December 17, 2009, the trial court entered a pendente lite order adjudicating the father to be the legal father of the child and awarding the parties joint legal and physical custody of the child. The trial court reserved “issues involving payment of child support” for a final hearing.

On May 10, 2010, the trial court held a final hearing at which ore tenus evidence was presented. The parties each presented as evidence Child-Support-Obligation Income Statement/Affidavit forms (Form CS-41) indicating their monthly income. The mother’s Form CS^41 indicated that her monthly gross income totaled $858 in employment income and that she did not incur any monthly work-related child-care expenses or monthly health-insurance expenses on account of the child. The father’s Form CSAll indicated that his monthly gross income totaled $2,762.93 in employment income and that he incurred $541.67 per month in monthly work-related child-care expenses and $148.18 per month in health-insurance expenses on account of the child.

On May 25, 2010, the trial court entered a final judgment. The trial court awarded the parties joint legal and physical custody of the child. The trial court also held, in pertinent part:

“Child support has been calculated by applying Rule 32 of the Alabama Rules of Judicial Administration. After applying said calculations, a child support obligation for each of the parties was recommended. It is the Court’s intention that [the father] pay to [the mother] the amount recommended by applying Rule 32 calculations during any periods of time that the minor child is in the physical custody of [the mother]. It is the Court’s intention that [the mother] pay to [the father] the amount recommended by applying Rule 32 calculations during any periods of time that the minor child is in the physical custody of [the father]. Accordingly, it is Ordered that [the father] shall pay to [the mother] the sum of $32.00 (Thirty-Two Dollars) per month, which represents the difference in calculations under Rule 32. In addition to the monthly child support payment, [the father] shall continue paying work-related daycare expenses.... Said child support payments shall be applied retroactively to the month of September, 2009, creating an arrearage obligation of [the father] to [the mother] in the total amount of $288.00.”

On June 8, 2010, the mother filed a post-judgment motion to alter, amend, or vacate the trial court’s judgment, arguing that the trial court had miscalculated the parties’ child-support obligations under Rule 32, Ala. R. Jud. Admin.; that motion was denied by operation of law. See Rule 59.1, Ala. R. Civ. P. The mother appealed.

Standard of Review

The trial court entered its judgment after receiving ore tenus testimony.

“ ‘ “ ‘[W]hen a trial court hears ore tenus testimony, its findings on disputed facts are presumed correct and its judgment based on those findings will not be reversed unless the judgment is palpably erroneous or manifestly unjust.”” Water Works & Sanitary Sewer Bd. v. Parks, 977 So.2d 440, 443 (Ala.2007) (quoting Fadalla v. Fadalla, 929 So.2d 429, 433 (Ala.2005), quoting in turn Philpot v. State, 843 So.2d 122, 125 (Ala.2002)). ‘ “The presumption of correctness, however, is rebuttable and may be overcome where there is insufficient evidence presented to the trial court to sustain its judgment.” ’ Wattman v. Rowell, 913 So.2d 1083, 1086 (Ala.2005) (quoting Dennis v. Dobbs, 474 So.2d 77, 79 (Ala.1985)). ‘Additionally, the ore tenus rule does not extend to cloak with a presumption of correctness a trial judge’s conclusions of law or the incorrect application of law to the facts.’ Wattman v. Rowell, 913 So.2d at 1086.”

Retail Developers of Alabama, LLC v. East Gadsden Golf Club, Inc., 985 So.2d 924, 929 (Ala.2007).

Discussion

The mother argues on appeal that the trial court erred in its calculation of the parties’ child-support obligations under Rule 32, noting that “the trial court did not include in the record a completed [Child— Support Guidelines form (Form CS-42) ].” The mother also argues that, based on the trial court’s miscalculation of the parties’ child-support obligations, the trial court miscalculated the amount of the father’s arrearage of child-support payments. We agree.

In Hayes v. Hayes, 949 So.2d 150, 154-55 (Ala.Civ.App.2006), this court stated:

“This court has held that if the record does not reflect compliance with Rule 32(E), Ala. R. Jud. Admin, (which requires the filing of ‘Child Support Obligation Income Statement/Affidavit’ forms (Forms CS-41) and a ‘Child Support Guidelines’ form (Form CS-42)), and if child support is made an issue on appeal, this court will remand (or reverse and remand) for compliance with the rule. See Martin v. Martin, 637 So.2d 901, 903 (Ala.Civ.App.1994). On the other hand, this court has affirmed child-support awards when, despite the absence of the required forms, we could discern from the appellate record what figures the trial court used in computing the child-support obligation. See, e.g., Dunn v. Dunn, 891 So.2d 891, 896 (Ala.Civ.App.2004); Rimpf v. Campbell, 853 So.2d 957, 959 (Ala.Civ.App.2002); and Dismukes v. Dorsey, 686 So.2d 298, 301 (Ala.Civ.App.1996). Nevertheless, without the child-support-guidelines forms, it is sometimes impossible for an appellate court to determine from the record whether the trial court correctly applied the guidelines in establishing or modifying a child-support obligation. See Horwitz v. Horwitz, 739 So.2d 1118, 1120 (Ala.Civ.App.1999).
“The record in this ease contains only one Form CS-41 prepared by the father; it reflects an amount between $1,200 and $1,400 in monthly income. However, the judgment expressly noted that the trial court had imputed a monthly income to the father of $4,417 and that the actual monthly income of the mother totaled $8,245. Calculating the father’s child-support obligation under Rule 82 based solely on his percentage share of the parties’ combined incomes (as reflected in the judgment) would result in a child-support obligation significantly greater than $625 per month. In fact, no application of the income figures specified by the trial court to the schedule of basic child-support obligations in the child-support guidelines supports the $625 monthly child-support award, and the trial court did not expressly state that it had deviated from the guidelines or state any reasons why a deviation from the guidelines would be necessary. See Appendix to Rule 32, Ala. R. Jud. Admin.; see also Mosley v. Mosley, 770 So.2d 638, 640 (Ala.Civ.App.2000).
“Accordingly, we must reverse the judgment modifying the child-support award and remand the cause for the trial court to properly determine the father’s prospective child-support obligation in compliance with Rule 32, Ala. R. Jud. Admin. The trial court may, in its discretion, compute the obligation according to the guidelines or expressly state the reasons why a deviation from the guidelines is necessary in this case. See also Harmon v. Harmon, 928 So.2d 295 (Ala.Civ.App.2005).”

In the present case, after calculating the parties’ respective child-support obligations under Rule 32, the trial court ordered the father to pay $32 per month in child support. In contravention of Rule 32(E), Ala. R. Jud. Admin., the record does not include a copy of a Child-Support Guidelines form (Form CS^2). As a result, as in Hayes, we are not able to determine how the trial court arrived at its conclusion that the parties’ respective child-support obligations resulted in the father’s being obligated to pay $32 per month in child support. The trial court’s judgment indicates that the court adhered to Rule 32 in arriving at its conclusion. However, comparing the information from the parties’ respective Form CS-41s and the trial court’s determination that the father pay $32 per month in child support with the child-support guidelines contained in the Appendix to Rule 32, we are unable to determine how the trial court arrived at its conclusion that the father should pay $32 per month in child support.

The father argues in his appellate brief before this court that the trial court deviated from the child-support guidelines set forth in the Appendix to Rule 32 in arriving at its conclusion that the father should pay $32 per month in child support. However, in order for a trial court to deviate from the child-support guidelines set forth in the Appendix to Rule 32, it is required to make an express determination that application of the guidelines would be manifestly unjust or inequitable and to state its reasons for deviating from the guidelines. See Rule 32(A)(ii), Ala. R. Jud. Admin.; see also Sexton v. Sexton, 42 So.3d 1280, 1283 n. 4 (Ala.Civ.App.2010) (holding that a trial court “may deviate from the child-support guidelines if it determines that a deviation is appropriate and it states its reasons for the deviation in accordance with Rule 32(A)(ii), Ala. R. Jud. Admin.”). The trial court in the present case made no such finding — in fact, the trial court stated in its judgment that the parties’ child-support obligations were “calculated by applying Rule 32 of the Alabama Rules of Judicial Administration” — and, thus, we must conclude that it did not deviate from the child-support guidelines.

Conclusion

Based on the foregoing, we reverse the trial court’s judgment as to the amount of the parties’ child-support obligations and, consequently, as to the amount of the father’s arrearage of child-support payments, and we remand the cause to the trial court to properly determine the amount of the parties’ child-support obligations in compliance with Rule 32 and to properly determine the amount of the father’s arrearage, if any, of child-support payments. The trial court may, in its discretion, compute the parties’ child-support obligations according to the child-support guidelines set forth in the Appendix to Rule 32 or expressly state the reasons why a deviation from the guidelines is necessary in this case.

The mother’s motion for an award of attorney fees on appeal is denied.

REVERSED AND REMANDED.

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

      . The mother styled her postjudgment motion as a “Motion to alter, amend or vacate final order pursuant to Rule 60(b)[, Ala. R. Civ. P.]” However, the motion was filed within 30 days of the entry of the trial court's final judgment and was, in both form and substance, a Rule 59(e), Ala. R. Civ. P., motion and is considered as such by this court. See

        Morrison v. Phillips, 992 So.2d 743, 744 (Ala.Civ.App.2008) (A motion purportedly filed pursuant to Rule 60(b), Ala. R. Civ. P., that fails to "allege any ground justifying relief under Rule 60(b), Ala. R. Civ. P.,” is, "in both form and substance, a Rule 59(e), Ala. R. Civ. P., motion.”).