author: PER CURIAM.

text:
    Connie HUGHES, as personal representative of the estate of Charles J. Hughes, deceased v. The MITCHELL COMPANY, INC. The Mitchell Company, Inc. v. Connie Hughes, as personal representative of the estate of Charles J. Hughes, deceased.
    1060109 and 1060201.
    Supreme Court of Alabama.
    April 9, 2010.

      Irvin Grodsky, Mobile, for appellant/cross-appellee Connie Hughes, as personal representative of the estate of Charles J. Hughes, deceased.
    Donald J. Stewart and Ian D. Rosenthal of Cabaniss, Johnston, Gardner, Dumas & O’Neal, LLP, Mobile, for appellee/cross-appellant The Mitchell Company, Inc.
   PER CURIAM.

On December 17, 2003, Connie Hughes, as personal representative of the estate of Charles J. Hughes, deceased (“Hughes”), sued The Mitchell Company, Inc., in the Mobile Circuit Court seeking recovery of past-due monthly installments on a promissory note. Both parties filed motions for a summary judgment as to all claims. The trial court entered a summary judgment in favor of Hughes in the amount of $1,677.01 plus interest and in favor of The Mitchell Company as to any additional amounts sought. Hughes appeals; The Mitchell Company cross-appeals. In case no. 1060109, we affirm the summary judgment in part, reverse it in part, and remand. In case no. 1060201, we affirm the summary judgment.

Facts and Procedural History

On or about January 25, 1996, Ken Christian and Julian Graddick purchased all the existing stock of Pleasure Island Realty, Inc. (“PIR”), a real-estate-sales, -leasing, and -management business, from Charles Hughes and Connie Hughes for a total purchase price of $650,000. As part of the consideration paid to the Hugheses, Christian and Graddick agreed to execute a written promissory note (hereinafter referred to as “the Hughes note”) in the amount of $233,000 and payable in monthly installments, with interest at 8% per an-num, of $1,948.91 for 20 years beginning on February 1, 1996 (hereinafter referred to as “the Hughes indebtedness”). The Hughes note was not produced in evidence. It has never been located, and Connie Hughes stated in her affidavit that she has never seen it. The Hugheses received the February and March 1996 payments on the Hughes indebtedness pursuant to the Hughes note.

On March 20, 1996, The Mitchell Company entered into a “purchase and sale agreement” with PIR, providing for the sale of certain property-management contracts held by PIR. The purchase and sale agreement specified a purchase price of $682,500, to be made up of a cash component, a $100,000 promissory note, and the assumption by The Mitchell Company of some of PIR’s preexisting indebtednesses. Specifically, the purchase and sale agreement provided that The Mitchell Company “shall assume and pay in accordance with its terms that certain promissory note in the original amount of $233,133.00, by [PIR], as maker, in favor of [Charles] Hughes, as payee,” a copy of which was referenced in the purchase and sale agreement as attached, although the note was not attached. The purchase and sale agreement also required The Mitchell Company to execute and deliver a promissory note payable to PIR in the amount of $100,000, with interest at 7% commencing March 31, 1996, to be paid in a payment of $25,000 with accrued interest on September 9, 1996, with the balance of $75,000 and accrued interest to be paid on March 31, 1997 (hereinafter referred to as “the purchase note”). The purchase and sale agreement included a purchase-price-adjustment clause:

“The Purchase Price shall be increased or decreased on and as of March 31, 1997 in accordance with this Paragraph 3(c) (the ‘Purchase Price Adjustment’) and the remaining principal balance of the Purchase Note on that date shall be increased or decreased to reflect the Purchase Price Adjustment. If, during the period commencing March 31, 1996 and ending March 31, 1997 (the ‘Adjustment Period’), gross rental commission income (but excluding housekeeping and maintenance fee income) actually received by [The Mitchell Company] from the Contracts and Future Contracts is less (or more) than $289,098.00, the Purchase Price shall be reduced (or increased) $2.36 for each $1.00 of shortfall (or overage) and the amount then due on the Purchase Note, including beginning principal and interest from March 31, 1996 on such new principal amount, shall be recalculated and paid. The Purchase Price Adjustment reduction or increase, if any, shall not be limited in amount. Any Purchase Price Adjustment decrease in excess of the amount of principal remaining unpaid under the Purchase Note shall be paid in cash by [PIR] to [The Mitchell Company] on or before April 15, 1997, and Ken Christian hereby personally guarantees the payment thereof.”

The Mitchell Company paid the purchase note off early on June 24, 1996, for a discounted payment of $50,000.

After March 31, 1997, The Mitchell Company calculated the purchase-price adjustment and determined that PIR and Christian, as guarantor, owed The Mitchell Company a purchase-price adjustment of $171,549.13. PIR and Christian refused to pay the purchase-price adjustment, and The Mitchell Company then sued PIR and Christian in the Baldwin Circuit Court. See Mitchell Co. v. Pleasure Island Realty, Inc., Baldwin Circuit Court, CV-97-1109. On April 7, 1998, the circuit court entered judgment against PIR and in favor of The Mitchell Company in the amount of $171,549.13. That judgment has not been satisfied. The Mitchell Company and Christian agreed to a settlement and to a release of The Mitchell Company’s claims against Christian personally for a payment of $20,000 made on December 20,1999.

On July 9, 1997, Charles Hughes filed a Chapter 11 bankruptcy petition in the United States Bankruptcy Court for the Southern District of Alabama. In the disclosure statement and schedules filed under oath in that proceeding, Charles Hughes represented to the bankruptcy court and to his creditors that he owned only an “Undivided ½ interest in note receivable, Mitchell Co., full balance $222,-277.00 — Debtor owns ½ int.” An order confirming Charles Hughes’s Chapter 11 bankruptcy plan was entered by the bankruptcy court on May 18, 1998, and the bankruptcy case was closed on July 22, 1998. Charles Hughes died on December 7,1999.

As of December 15, 1999, the unpaid balance on the judgment awarding the purchase-price adjustment, including accrued interest, was approximately $187,000, with ongoing interest accruing at the rate of 12%. In accordance with the Hughes note, The Mitchell Company had timely paid scheduled monthly payments on the Hughes indebtedness through December 1999. By letter of January 12, 2000, The Mitchell Company informed Connie Hughes that effective January 2000 it would no longer be servicing PIR’s obligation under the Hughes note. The Mitchell Company’s position was based on its belief that it had no further obligation under the purchase and sale agreement with PIR to make payments on the Hughes indebtedness because the unpaid balance owed by PIR on the judgment, after applying both the $20,000 settlement payment from Christian and the accrual of the statutory 12% rate of interest on unpaid judgment, more than offset the remaining installments due on the Hughes indebtedness as those installments fell due.

On July 10, 2000, Connie Hughes individually sued The Mitchell Company as a third-party beneficiary of The Mitchell Company’s contractual obligations to PIR under the purchase and sale agreement (that action will hereinafter be referred to as “Hughes /”). The Mitchell Company filed a motion to dismiss the action, asserting that Charles Hughes, who was deceased, was the sole payee of the Hughes indebtedness and, thus, that The Mitchell Company had no obligation to pay Connie Hughes individually. The circuit court held that the estate of Charles Hughes was an indispensable party and conditionally granted The Mitchell Company’s motion to dismiss, the condition being that Charles Hughes’s estate be added as a party within 30 days. The estate of Charles Hughes was added as a plaintiff, and both sides filed summary-judgment motions. The circuit court determined that

“Connie Hughes, as personal representative of the Estate of Charles Hughes, Sr. is entitled to summary judgment in her favor as a matter of law against [T]he Mitchell Company, Inc. for $60,416.21 principal, representing monthly payments through July 31, 2002, interest of $1912.66, representing interest on the principal portion of said monthly payments through July 31, 2002, and interest hereafter accruing,”

and that

“The Mitchell Company, Inc. is entitled to summary judgment as matter of law in its favor dismissing the claim of Connie W. Hughes, individually.”

The Mitchell Company appealed, and this Court affirmed, without an opinion, the circuit court’s judgment. Mitchell Co. v. Hughes (No. 1020023), 886 So.2d 904 (Ala.2003) (table).

Following the disposition of Hughes /, The Mitchell Company satisfied the judgment entered against it but failed to make any further payments that came due after July 31, 2002. On December 17, 2003, Hughes sued The Mitchell Company for recovery of the past-due monthly installments accruing from August 1, 2002, through December 17, 2003. Both parties filed summary-judgment motions. The circuit court entered a final judgment disposing of all claims, as follows:

“In considering de novo the arguments and authorities advanced by the parties in this case upon the facts presented, this Court concludes (a) that [The] Mitchell [Company’s] position that it is legally entitled to offset the unpaid balance of its judgment against [PIR], with interest accrued and accruing at the judgment rate of 12%, against installments on the Hughes indebtedness as they mature is well taken; (b) that, consistent with the Order and Judgment in [Hughes /], [The] Mitchell [Company’s] computation of the application of that offset is subject to adjustment based on a partial waiver of $77,625.00 of the offset amount as contended by [Hughes]; and (c) that under the principles of judicial estoppel [Hughes] is barred from claiming entitlement to more than half of the balance of the Hughes indebtedness.
“15. The parties are in agreement that the principal balance owed on the entire Hughes indebtedness after payment of the December, 1999 installment was $211,249.87, of which [Hughes] is judicially estopped to claim to have been owed more than $105,624.94 with interest at 8%. Half of the $93,498.39 total offset balance to which [The Mitchell Company] was entitled as of January 1, 2000 ($46,749.20), with subsequently accruing interest at the judgment rate would have been usable to offset [Hughes’s] half of the indebtedness ‘on the back end.’ The installments recovered by [Hughes] under the Order and Judgment in [Hughes I ] were 31 installments of $1948.91. After applying 31 monthly payments of $1948.91 each to the amortization of $105,624.93 at 8%, the remaining principal balance claimable by [Hughes] would be $62,918.46. After 31 months, the $46,749.20 offset judgment balance with accrued interest at ■ 12% would have amounted to $61,241.45 .... [Hughes] is judicially es-topped to claim that the payments made under the Order and Judgment in [.Hughes 7] did not satisfy its entire claim against [The Mitchell Company] for servicing of the Hughes indebtedness except to the extent of the $1,677.01 differential, with interest at 8% from July 31, 2002 until paid.
“16. [Hughes’s] motion for summary judgment is hereby granted to the extent of the entry of judgment against [The Mitchell Company] in favor of Connie W. Hughes as Personal Representative of the Estate of Charles Hughes, Sr. in the sum of $1677.01, plus interest at eight percent (8%) per annum from July 31, 2002 until paid. [Hughes’s] motion for summary judgment is otherwise denied.
“17. The [Mitchell Company’s] motion for summary judgment is hereby granted insofar as it seeks a determination that Connie W. Hughes as Personal Representative of the Estate of Charles Hughes, Sr. is judicially estopped to claim or collect from [The Mitchell Company] any further amount in excess of the sum of $1677.01, plus interest at eight percent (8%) per annum from July 31, 2002 until paid. [Hughes’s] motion for summary judgment is otherwise denied.”

Hughes appealed, and The Mitchell Company cross-appealed.

Standard of Review

This Court has previously stated the standard by which it reviews the circuit court’s disposition of a summary-judgment motion:

“ ‘In reviewing the disposition of a motion for summary judgment, we utilize the same standard as that of the trial court in determining whether the evidence before the court made out a genuine issue of material fact’ and whether the movant was entitled to a judgment as a matter of law. Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988); Rule 56(c), Ala. R. Civ. P. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Evidence is ‘substantial’ if it is of ‘such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).”

Ex parte General Motors Corp., 769 So.2d 903, 906 (Ala.1999). See also Brown v. St. Vincent’s Hosp., 899 So.2d 227, 233 (Ala.2004). “Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant.” Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So.2d 359, 362 (Ala.1993).

Discussion

Hughes argues that the circuit court erred by allowing The Mitchell Company to apply the unpaid balance of its judgment against PIR as an offset against the Hughes indebtedness. In entering a summary judgment in favor of The Mitchell Company, the circuit court held, in pertinent part:

“The Supreme Court of Alabama still follows the general law of contracts that when a third party beneficiary of a contract is entitled to maintain a direct action on a contract that right of action is subject to all limitations in the contract and ‘to supervening defenses arising by virtue of its terms.’ Restatement Contracts 2d, § 309(c) (2000 Supp.).
“ ‘It is a well-established principle of Alabama law that a contract made for the benefit of a third person may, at his election, be accepted and enforced by him. Michie v. Bradshaw, 227 Ala. 302, 149 So. 809 (1933). However, “[i]f he claims the benefits [of the contract], he also assumes the burdens.” Michie, 227 Ala. at 308, 149 So. at 814. See also, Ex parte Dyess, 709 So.2d 447 (Ala.1997) (nonsignatory plaintiff claiming the benefit of a contract as a third-party beneficiary is subject to arbitration agreement within that contract). “The law is clear that a third party beneficiary is bound by the terms and conditions of the contract that it attempts to invoke. ‘The beneficiary cannot accept the benefits and avoid the burdens of limitations of a contract.’ ” Interpool Ltd. v. Through Transport Mut. Ins. Ass’n Ltd., 635 F.Supp. 1503, 1505 (S.D.Fla.1985), quoting Trans Bay Engineers & Builders, Inc. v. Hills, 551 F.2d 370, 378 (D.C.Cir.1976). See Dunn Constr. Co. v. Sugar Beach Condominium Ass’n, Inc., 760 F.Supp. 1479 (S.D.Ala.1991); Lee v. Grandcor Medical Systems, Inc., 702 F.Supp. 252, 255 (D.Colo.1988) (“A third party beneficiary must accept a contract’s burdens along with its benefits”). It is thus clear that a third-party beneficiary cannot accept the benefit of a contract, while avoiding the burdens or limitations of that contract.’
“Georgia Power Co. v. Partin, 727 So.2d 2, 5 (Ala.1998). Consequently, any claim brought against [The Mitchell Company] by a holder of the Hughes indebtedness as a third party beneficiary of the contractual obligations of [The Mitchell Company] to [PIR] to pay the Hughes indebtedness is subject to the same rights, defenses, and offsets [The Mitchell Company] would have against [PIR] if it brought an action based on such obligations. While the conclusion might be different if the facts demonstrated a novation by agreement of the parties where the obligation to pay the Hughes indebtedness had been formally assumed by [The Mitchell Company] upon release of the existing obligors on such indebtedness, with the substitution in full of [The Mitchell Company] for such obligors, no such novation is demonstrated to have occurred under the facts here.”

Hughes alleges that the circuit court erred in applying general principles of contract law concerning third-party beneficiaries to this case. Hughes relies on Schneider Moving & Storage Co. v. Robbins, 466 U.S. 364, 104 S.Ct. 1844, 80 L.Ed.2d 366 (1984), and argues that “ ‘[w]here the language of the contract, or the circumstances under which it was executed, establish that the parties have provided that the right of the beneficiary is not to be affected by any defenses that the promisor might have against the promisee, the rule is inapplicable.’” (Hughes’s brief, at 44) (quoting Schneider, 466 U.S. at 371, 104 S.Ct. 1844).

In Schneider, the United States Supreme Court held, in pertinent part:

“[The promisors] argue that as third-party beneficiaries of the collective-bargaining agreements, the trustees are bound by the arbitration clauses provided therein to the same extent the [prom-isee] would be if it were seeking judicial enforcement of those agreements. [The promisors] rely on the general rule that the promisor may assert against the beneficiary any defense that he could assert against the promisee if the prom-isee were suing on the contract. See Restatement (Second) of Contracts § 309, Comment b (1981); S. Williston, Contracts § 395 (3d ed.1959); 4 A. Cor-bin, Contracts § 819 (1951). That rule, however, is merely a rule of construction useful in determining contractual intent. It should not be applied so inflexibly as to defeat the intention of the parties. Where the language of the contract, or the circumstances under which it was executed, establish that the parties have provided that the right of the beneficiary is not to be affected by any defenses that the promisor might have against the promisee, the rule is inapplicable. Restatement (Second) of Contracts § 309, Comment b (1981). See also 4 A. Corbin, Contracts §§ 818, 819 (1951).”

Schneider, 466 U.S. at 370-71, 104 S.Ct. 1844 (footnote omitted). The Schneider Court determined that if such an intention to protect the third-party beneficiary was found, then the general rule would not apply.

Hughes argues that the Schneider exception should apply because, she says, the following language from the purchase and sale agreement evidences The Mitchell Company and PIR’s intent to insulate the Hugheses from any defenses The Mitchell Company may have asserted against PIR by requiring that any purchase-price adjustment to which The Mitchell Company may have been entitled was to come from PIR and/or Christian:

“Any Purchase Price Adjustment decrease in excess of the amount of principal remaining unpaid under the Purchase Note shall be paid in cash by [PIR] to [The Mitchell Company] on or before April 15, 1997, and Ken Christian hereby personally guarantees the payment thereof.”

Hughes recognizes that the above-quoted language does not explicitly show an intention by The Mitchell Company and PIR to insulate the Hugheses from any defense The Mitchell Company may have asserted against PIR, but Hughes argues that the failure of the parties to specifically provide for the right of The Mitchell Company to recover any payment due under the purchase-price-adjustment clause from the amount it was to pay on the Hughes indebtedness is sufficient. Hughes does not cite any legal authority to support her contention.

Hughes has failed to point to any language in the purchase and sale agreement that evidences an intention of The Mitchell Company and PIR to insulate the Hughes-es, as third-party beneficiaries, from any defenses The Mitchell Company may have asserted against PIR. There is no language in the purchase and sale agreement that establishes the parties’ intention to insulate third-party beneficiaries from defenses available to The Mitchell Company against PIR.

In the same vein, Hughes also appears to argue that the structure of the purchase and sale agreement indicates an intention of the parties to insulate the Hugheses from any defense The Mitchell Company may have against PIR, thereby triggering the application of the Schneider exception. Hughes argues that “the determination of whether [The Mitchell Company] is entitled to recover an overpayment is based upon factors relating to the amount paid by [The Mitchell Company] to PIR and Christian, not the total amount paid by [The Mitchell Company]”; therefore, Hughes argues, “[t]he contractual factors considered in determining whether an overpayment has occurred assumes that the Hughes ... obligation [is] independent of whether an overpayment has occurred entitling [The Mitchell Company] to recover any amount from PIR (and/or Christian).” Hughes appears to argue that because the determination of the adjusted purchase price allegedly does not include a consideration of the entire purchase price of $682,500 (which included the Hughes indebtedness) but only what The Mitchell Company directly paid to PIR, then there is an inherent assumption that The Mitchell Company and PIR intended to insulate the Hugheses from any defense The Mitchell Company may have asserted against PIR.

Once again, other than mere allegations and assumptions, Hughes fails to point to any language in the purchase and sale agreement that evidences an intention of The Mitchell Company and PIR to insulate the Hugheses from any defenses The Mitchell Company may have asserted against PIR and, thus, fails to show that the Schneider exception should apply. Therefore, we affirm the circuit court’s judgment that any claim brought against The Mitchell Company by Hughes as a third-party beneficiary of the contract between The Mitchell Company and PIR is subject to the same defenses The Mitchell Company would have against PIR if it brought a claim based on such obligations.

Hughes next argues that even if this Court declines to apply the Schneider exception, The Mitchell Company’s offset defense is “barred in whole or in part by the doctrine of equitable estoppel.” (Hughes’s brief, at 52.)

“ ‘ “An estoppel ... has three important elements. The actor, who usually must have knowledge of the true facts, communicates something in a misleading way, either by words, conduct or silence. The other relies upon that communication. And the other would be harmed materially if the actor is later permitted to assert any claim inconsistent with his earlier conduct.” ’ ”

Pierce v. Hand, Arendall, Bedsole, Greaves & Johnston, 678 So.2d 765, 768 (Ala.1996) (quoting Mazer v. Jackson Ins. Agency, 340 So.2d 770, 773 (Ala.1976), quoting in turn Dobbs, Remedies § 2.3 (1973)). Hughes argues that The Mitchell Company had knowledge of the Hugheses’ interest in the subject matter of The Mitchell Company’s action against PIR in that shares of the stock of PIR were pledged as security for the Hughes indebtedness. Hughes argues that The Mitchell Company’s failure to notify the Hugheses of its action against PIR was misleading and that it caused harm to the Hugheses because it did not allow the Hugheses the ability to protect their “right to receive future payments from [the] Mitchell [Company] on the Hughes indebtedness.” (Hughes’s brief, at 54.)

Hughes points to no evidence in the record to show that she reasonably relied on The Mitchell Company’s failure to notify the Hugheses of its action against PIR and how that reasonable reliance caused Hughes material harm. Undisputedly, The Mitchell Company sent notice to the Hugheses that it had taken over the management of PIR and that it would be servicing the Hughes indebtedness. However, nothing in The Mitchell Company’s letter notifying the Hugheses of the change in management indicated that Christian and Graddick had been released from liability on the Hughes indebtedness, and Christian and Graddick remain personally liable to the Hugheses. The Mitchell Company’s ability to offset the Hughes indebtedness by the amount of its unpaid judgment against PIR does not affect Hughes’s right to recover the Hughes indebtedness and causes no material harm to Hughes. The circuit court properly granted The Mitchell Company the right to offset.

As cross-appellant, The Mitchell Company argues that the circuit court erred in finding that its prepayment to PIR of the purchase note resulted in a partial waiver of The Mitchell Company’s right of offset against the Hughes indebtedness. The circuit court held, in pertinent part, as follows:

“[Hughes’s] argument under its ‘partial waiver’ theory is that the contemplation of the Purchase and Sale Agreement was that at the time the Purchase Price Adjustment was to be calculated, a balance of $75,000 plus interest accruing at 7% from September 9, 1996 would then still be owed by [The Mitchell Company] under the Purchase Note, and that any Purchase Price Adjustment due [The Mitchell Company] would first be setoff against that unpaid balance before being asserted as a setoff against payments on the Hughes indebtedness. [Hughes] argues that when [The Mitchell Company] elected to prepay the Purchase Note at a discount price of $50,000 in June, 1996, before any payment on the Purchase Note came due, [The Mitchell Company] frustrated the purpose for which the Purchase Note was intended, which was to provide the primary vehicle for effecting a reduction in the purchase price. [The Mitchell Company] has at all times conceded that but for the right to offset against payment of the Hughes indebtedness in order to realize upon the Purchase Price Adjustment, it would have continued to pay the installments of the Hughes indebtedness as they fell due. The record also establishes that [The Mitchell Company] understood at the time it agreed to pay off the Purchase Note early at.a discount that it was in effect giving up security for effecting any Purchase Price Adjustment it might later be determined to be entitled to. As argued by [Hughes], waiver occurs when a party in possession of a right, whether arising out of law or a contract, with full knowledge of the material facts, performs acts which are inconsistent with the right or its intention to rely on that right. Dominex, Inc. v. Key, 456 So.2d 1047 (Ala.1984); Bassett v. Newton, 658 So.2d 398 (Ala.1995).”

The Mitchell Company argues that there is no evidence in the record supporting the circuit court’s finding that, by paying the remaining balance of the purchase note early, The Mitchell Company waived its right to offset the remaining balance of the purchase note. Contrary to The Mitchell Company’s claim, there is ample evidence showing that The Mitchell Company waived its right to offset.

“ ‘Waiver is defined as the voluntary surrender or relinquishment of some known right, benefit, or advantage. City of Montgomery v. Weldon, 280 Ala. 463, 195 So.2d 110 (1967). However, it is well established that a party’s intention to waive a right is to be ascertained from the external acts manifesting the waiver. Givens v. General Motors Acceptance Corp., 56 Ala.App. 561, 324 So.2d 277 (1975). This intention to waive a right may be found where one’s course of conduct indicates the same or is inconsistent with any other intention.’ ”

Stewart v. Bradley, 15 So.3d 533, 543 (Ala.Civ.App.2008) (quoting Waters v. Taylor, 527 So.2d 139, 141 (Ala.Civ.App.1988)).

It is clear from the face of the purchase and sale agreement and from the deposition testimony of Paul Wesch, general counsel for The Mitchell Company, that the balance remaining on the purchase note as of March 31, 1997, was to be recalculated, taking into account the purchase-price adjustment. The purchase and sale agreement states that “[a]ll remaining principal and interest on the Purchase Note shall be due on March 31, 1997 (subject to the Purchase Price Adjustment described below).” The purchase-price-adjustment clause states:

“The Purchase Price shall be increased or decreased on and as of March 31, 1997 in accordance with this Paragraph 3(c) (the ‘Purchase Price Adjustment’) and the remaining principal balance of the Purchase Note on that date shall be increased or decreased to reflect the Purchase Price Adjustment. If, during the period commencing March 31, 1996 and ending March 31, 1997 (the ‘Adjustment Period’), gross rental commission income (but excluding housekeeping and maintenance fee income) actually received by [The Mitchell Company] from the Contracts and Future Contracts is less (or more) than $289,098.00, the Purchase Price shall be reduced (or increased) $2.36 for each $1.00 of shortfall (or overage) and the amount then due on the Purchase Note, including beginning principal and interest from March 31, 1996 on such new principal amount, shall be recalculated and paid. The Purchase Price Adjustment reduction or increase, if any, shall not be limited in amount. Any Purchase Price Adjustment decrease in excess of the amount of principal remaining unpaid under the Purchase Note shall be paid in cash by [PIR] to [The Mitchell Company] on or before April 15, 1997, and Ken Christian hereby personally guarantees the payment thereof.”

As evidenced by the above-quoted language of the purchase and sale agreement, the balance due on the purchase note was to be recalculated, applying the purchase-price adjustment, which calculation was to occur on March 31, 1997. As evidence of The Mitchell Company’s knowledge of that fact, Wesch testified as follows:

“Well, the purchase price adjustment is referred to in this paragraph. And, in summary, it says you offset or decrease the price first against the purchase note, the hundred thousand dollar note that we were talking about.
“And then it says the purchase price adjustment reduction or increase shall not be limited in amount.”

The Mitchell Company entered into the purchase and sale agreement with the understanding that the balance due on the purchase note as of March 31, 1997, was to be used as an offset to a possible increase of the purchase price under the purchase-price-adjustment clause. With that knowledge, The Mitchell Company, when it paid the purchase note early, voluntarily relinquished the right to offset the balance of the purchase note against a possible increase in purchase price under the purchase-price-adjustment clause. Therefore, the circuit court did not err in finding that The Mitchell Company had partially waived its right to offset the PIR judgment.

Having determined that the circuit court properly held that The Mitchell Company has the right to apply the unpaid balance of its judgment against PIR, minus the portion it waived, as an offset against its obligation under the Hughes indebtedness, we now consider whether the circuit court properly determined that Hughes was barred by the doctrine of judicial estoppel from claiming more than a one-half interest in the Hughes indebtedness. The doctrine of judicial estoppel exists to “ ‘protect! ] the integrity of the judicial system, not the litigants.’ ” Ex parte First Alabama Bank, 883 So.2d 1236, 1243 (Ala.2003) (quoting Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282, 1286 (11th Cir.2002)). In First Alabama, this Court held:

“The United States Supreme Court in New Hampshire v. Maine, 532 U.S. 742, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001), recently observed that ‘ “[t]he circumstances under which judicial estoppel may appropriately be invoked are probably not reducible to any general formulation of principle” ’ and then identified several factors as informative in determining the applicability of the doctrine of judicial estoppel. 532 U.S. at 750-51, 121 S.Ct. 1808 (quoting Allen v. Zurich Ins. Co., 667 F.2d 1162, 1166 (4th Cir. 1982)). The Court held that for judicial estoppel to apply (1) ‘a party’s later position must be “clearly inconsistent” with its earlier position’; (2) the party must have been successful in the prior proceeding so that ‘judicial acceptance of an inconsistent position in a later proceeding would create “the perception that either the first or second court was misled” ’ (quoting Edwards v. Aetna Life Ins. Co., 690 F.2d 595, 599 (6th Cir.1982)); and (3) the party seeking to assert an inconsistent position must ‘derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.’ 532 U.S. at 750-51, 121 S.Ct. 1808.”

883 So.2d at 1244-45.

In the present case, the circuit court determined that Hughes was barred by the doctrine of judicial estoppel from claiming more than one-half of the Hughes indebtedness because Charles Hughes had successfully claimed a one-half interest in the Hughes indebtedness in his 1997 bankruptcy proceedings. The circuit court reasoned that allowing Hughes to claim a full interest in the Hughes indebtedness in the present case would be “clearly inconsistent” with the position Charles Hughes took in the 1997 bankruptcy proceeding, thereby creating “the perception that either the first or second court was misled.” The circuit court held that Hughes gained an unfair advantage from the inconsistent positions and, thus, is now barred by the doctrine of judicial estoppel from claiming more than a one-half interest. We disagree.

As observed above, there is no general formulation of principle dictating when the doctrine of judicial estoppel applies; such a decision is left to the court’s discretion, enlightened by several informative factors gleaned from precedent of this Court and the United States Supreme Court in the landmark case of New Hampshire v. Maine, 532 U.S. 742, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001). Given the specific circumstances of the present case, it is clear that Hughes has not asserted an inconsistent position in order to gain an unfair advantage; she is merely asserting a position consistent with the judgment in Hughes I. Instead, it appears that The Mitchell Company is the party attempting to gain an unfair advantage by asserting inconsistent positions. In Hughes I, The Mitchell Company successfully argued that Connie Hughes had no claim to the Hughes indebtedness, leaving Hughes entitled to the entirety of the Hughes indebtedness. Now, having successfully argued in Hughes I that Hughes was the sole payee on the Hughes indebtedness, The Mitchell Company reverses course and argues that, because of a bankruptcy proceeding that occurred before the circuit court decided Hughes I, Hughes is barred by the doctrine of judicial estoppel from claiming more than one-half of the Hughes indebtedness. Such positions are clearly inconsistent and asserted to gain an unfair advantage. Allowing the circuit court’s judgment to stand would create a windfall for The Mitchell Company amounting to half the past-due installments of the Hughes note.

Further, we hold that the doctrine of res judicata bars The Mitchell Company from arguing that Hughes is entitled to any interest less than the entire interest in the Hughes indebtedness.

In John Hancock Mutual Life Insurance Co. v. Large, 230 Ala. 621, 624, 162 So. 277, 279 (1935), this Court held:

“The general rule that suit can be brought to recover only demands already accrued is not to be questioned.
“In a suit upon past-due installments, due under one and the same contract, the general well-known rule at law is that present recovery is limited to past-due installments at the time of suit filed, but the judgment is pleadable as res adjudicata of the original obligation, and in suits for later installments defenses are limited to subsequent matters going to the continued existence of the obligation to pay the installments then in suit.”

In Hughes I, Connie Hughes argued, consistent with Charles Hughes’s position in his 1997 bankruptcy proceeding, that she held the Hughes indebtedness jointly with Charles Hughes. The Mitchell Company argued that Connie Hughes had no claim to the Hughes indebtedness and thus moved to have her dismissed from the case. The circuit court agreed with The Mitchell Company and ordered that the full amount of the past-due installments be paid to the estate of Charles Hughes alone. In the present action, consistent with the judgment in Hughes I, Hughes claims the entirety of the Hughes indebtedness.

Under John Hancock, the judgment in Hughes I is pleadable in the present action as res judicata of the original obligation. The Mitchell Company may raise only “subsequent matters” as a defense to paying its obligation. The 1997 bankruptcy proceeding is not a subsequent matter; thus, it may not be pleaded as a defense. The doctrine of res judicata bars The Mitchell Company from arguing that Hughes is not entitled to the entirety of the Hughes indebtedness. The circuit court’s judgment regarding this issue is reversed.

Conclusion

Based on the foregoing, this Court affirms in part and reverses in part the summary judgment entered in case no. 1060109, and we remand the case for proceedings consistent .with this opinion. As the circuit court held, The Mitchell Company is entitled to apply its unpaid judgment against PIR, minus the amount it waived, as an offset against the Hughes indebtedness. However, contrary to the circuit court’s holding, Hughes is not barred by the doctrine of judicial estoppel from claiming more than a one-half interest in the Hughes indebtedness. Instead, the doctrine of res judicata establishes that, consistent with the judgment in Hughes I, Hughes is entitled to claim the entirety of the Hughes indebtedness. Further, this Court affirms the summary judgment entered in case no. 1060201.

1060109 — AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

1060201 — AFFIRMED.

COBB, C.J., and LYONS, WOODALL, STUART, SMITH, BOLIN, PARKER, and SHAW, JJ., concur.

MURDOCK, J., concurs in the result.


source: Caselaw Access Project

author: BRYAN, Judge.

license: Public Domain

text:
    C.A.H. v. J.B.S.
    2080850.
    Court of Civil Appeals of Alabama.
    April 16, 2010.

      Barry D. Vaughn of Proctor & Vaughn, L.L.C., Sylacauga, for appellant.
    Robert L. Rumsey, Sylacauga, for appel-lee.
   BRYAN, Judge.

This appeal was taken by C.A.H. (“the mother”) from a custody-modification proceeding in the Talladega Juvenile Court (“the juvenile court”). The mother and J.B.S. (“the father”) never married, but they had two children: W.G.S., a boy born in August 2006 (“the son”), and S.B.S., a girl born in July 2007 (“the daughter”) (referred to collectively as “the children”).

On November 16, 2006, the mother, through the Alabama Department of Human Resources (“DHR”), filed a petition for child support for the son in the juvenile court. The father was adjudicated the father of the son on January 30, 2007. No child support was ordered at that time because the parties were apparently living together. On July 18, 2007, the father and the mother signed a paternity affidavit regarding the daughter. On or about September 21, 2007, the mother, again through DHR, filed a “petition to modify child support,” seeking support for the son and the daughter. On May 23, 2008, the juvenile court adjudicated the father to be the father of the daughter, and it ordered the father to pay $358 a month in child support for the children.

On or about July 25, 2008, the juvenile court entered an order that reflected an agreement of the parties regarding custody of the children. The parties were awarded joint legal custody of the children, and the mother was awarded primary physical custody, subject to the father’s visitation rights. The order included the language regarding notice of relocation required under the Alabama Parent-Child Relationship Protection Act, § 30-3-130 et seq., Ala.Code 1975 (“the Act”).

On July 16, 2008, the mother informed the father that she intended to relocate to North Carolina with the children. On August 11, 2008, the father filed an objection to the mother’s proposed relocation, a request for a temporary and a permanent injunction preventing the mother from relocating with the children to North Carolina, and a petition for modification of custody. He alleged that the proposed change in the principal residence of the children constituted a material change in circumstances and that the best interests of the children would be materially promoted if he was awarded custody of the children. The father also sought an award of child support. The mother answered the father’s petition, and she denied that she was planning to move to North Carolina with the children. The mother alleged that the father was in arrears on child-support payments and that the child-support order dated May 28, 2008, was due to be modified because the son had died.

The juvenile court held an ore tenus hearing on all the issues raised by the parties on November 20, 2008, and the juvenile court issued a judgment on February 27, 2009. The juvenile court modified custody of the daughter and awarded the father and the mother joint physical custody of the daughter in alternating, one-week intervals. The juvenile court ordered specific holiday visitation for both parties, it ordered the parties to equally share the cost of uncovered medical expenses for the daughter, and it ordered that neither party was required to pay child support. The mother appealed.

The daughter was approximately 16 months old at the time of the final hearing. According to the father, the mother told him at the daughter’s first birthday party in July 2008 that she was moving with the children to North Carolina. The father testified that he did not object at that time because he did not want to cause a scene. The father admitted that the mother had told him three or four weeks before the final hearing that she was not going to move to North Carolina.

The father stated that the mother does not take care of the daughter, and, as an example, he cited an occasion when the mother had sent the daughter to his home for visitation with holes in her pants. The father admitted that he was not current on his child-support obligation, but he testified that it was because he had paid approximately $2,900 for the son’s funeral expenses. He admitted that he had disregarded his court-ordered child-support obligation even though his daughter needed support. The father testified that he worked for a lawn-care company in the summer and that he worked as automobile salesman in the winter. However, the father’s income was not revealed.

The mother testified that she had informed the father of her intent to move to North Carolina in anticipation of her marriage to R.B., who was in the Army. R.B. was scheduled to be stationed in North Carolina for 10 months before being deployed overseas. The mother met R.B. on the Internet in October 2007, and he was stationed in South Korea at the time. The mother and R.B. met in person for the first time on August 2, 2008, when R.B. came to the mother’s home while he was on leave from the Army. The mother married R.B. on August 16, 2008, apparently one week after the son was buried. The mother’s testimony indicated that she decided not to move to North Carolina after the son died. The mother was unemployed, and she stated that R.B. had paid for the daughter’s care because the father had not paid child support since August 2008.

There was limited testimony regarding the death of the son. Apparently, the son had accidentally drowned in the mother’s neighbor’s pool. The facts and circumstances leading up to the son’s death are not in the record, but there was no indication that the mother was at fault. The attorneys for both parties referred to the son’s death as an “accident.” The mother stated that she also has a pool in her backyard and that, after the son died, she had placed a broom handle in a sliding glass door in her home so that the daughter could not get out of her home. She stated that she had not made any changes to the gates around her home. She stated that the pool in her backyard was not covered but that there was a fence around her pool with a gate that was always locked.

A former friend of the mother testified that the mother had told her that she stayed up late with R.B. when he first came to the mother’s home, which was the week that the son had died, and that the mother had told her that the son had used a marker on the walls of the mother’s home the day before he died, indicating that the son had not been supervised at the time. She stated that their friendship ended after the son died because the mother put her relationship with R.B. before her and the daughter.

The mother’s issues on appeal can be succinctly stated as follows: (1) whether the juvenile court erred in modifying custody of the daughter and (2) whether the juvenile court erred in eliminating child support.

Initially, we will briefly address whether the Act applied in this case. We note that nothing in the juvenile court’s judgment indicates that it relied on, or even considered, the Act when it modified custody of the daughter. Although the father’s petition to modify custody was based on his belief that the mother was moving to North Carolina with the children, the evidence indisputably showed that the mother was not moving to North Carolina with the daughter. The Act did not apply in this case because a proposed change of the principal residence of the daughter was not before the juvenile court. See generally § 30-3-162, Ala.Code 1975 (setting forth the applicability of the Act).

We will also briefly address the mother’s argument that the judgment must be reversed and the case remanded to the juvenile court based only on the fact that the juvenile court did not specifically state, in the record or in its final judgment, what custody-modification standard it had applied. In support of her argument, the mother cites this court’s opinion in M.B. v. S.B., 12 So.3d 1217, 1220 (Ala.Civ.App.2009), in which we reversed a custody-modification determination, and remanded the case, because the “judgment and the record on appeal [we]re silent with respect to which standard the juvenile court applied in modifying custody.” We find the present case distinguishable from M.B. In M.B., the parties did not agree about which custody-modification standard applied to their case, Id. At the final hearing in M.B., the mother’s counsel argued that a standard in line with Ex parte Terry, 494 So.2d 628, 632 (Ala.1986), applied, while the grandparents maintained that the custody-modification standard set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984), applied. Id. No resolution was reached regarding which custody-modification standard applied, and we reversed the judgment and remanded the case to the juvenile court because this court could not determine which standard the juvenile court had applied. We did not reverse the judgment and remand the case simply because the juvenile court had failed to make a specific recitation of the custody-modification standard it had applied in its final judgment. In the present case, the father used language from the McLendon standard in his petition to modify and there was never a dispute between the parties about whether the McLendon standard applied. Thus, we conclude that, in this instance, the juvenile court’s failure to state the custody-modification standard it used does not require us to reverse the judgment and remand the case.

Regarding the mother’s argument that the juvenile court’s judgment modifying custody of the daughter was unsupported by the evidence, we agree. The parties did not dispute that the custody-modification standard set forth in Ex parte McLendon applied because the mother had been awarded primary physical custody of the daughter in the July 25, 2008, order.

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

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

The father’s petition to modify custody was based on his belief that the mother was going to move to North Carolina with the children. However, the father argues that the juvenile court heard other evidence of a material change in circumstances sufficient to support its judgment, such as evidence indicating that the mother had put the needs of her husband, R.B., before the needs of the daughter and that the mother had placed the daughter in danger by failing to take additional safety precautions around her home after the son died. The father directs this court to evidence indicating that the mother married R.B. only two weeks after she had met him in person, that the mother had planned to move the children to North Carolina to live with R.B. at a time when she had never met him in person, and that the mother had not made any significant changes to the interior or the exterior of her home after the son accidentally drowned.

“On appellate review of custody matters, this court is limited when the evidence was presented ore tenus, and, in such circumstances, a trial court’s determination will not be disturbed ‘absent an abuse of discretion or where it is shown to be plainly and palpably wrong.’ Alexander v. Alexander, 625 So.2d 433, 434 (Ala.Civ.App.1993) (citing Benton v. Benton, [520 So.2d 534 (Ala.Civ.App. 1988) ]). As the Alabama Supreme Court highlighted in [Ex parte ] Patronas, [693 So.2d 473 (Ala.1997),] ‘ “[T]he trial court is in the better position to consider all of the evidence, as well as the many inferences that may be drawn from that evidence, and to decide the issue of custody.” ’ Patronas, 693 So.2d at 474 (quoting Ex parte Bryowsky, 676 So.2d 1322, 1326 (Ala.1996)). Thus, appellate review of a judgment modifying custody when the evidence was presented ore tenus is limited to determining whether there was sufficient evidence to support the trial court’s judgment. See Patronas, 693 So.2d at 475.
“ ‘However, even under the ore tenus rule, “[w]here the conclusion of the trial court is so opposed to the weight of the evidence that the variable factor of witness demeanor could not reasonably substantiate it, then the conclusion is clearly erroneous and must be reversed.’” B.J.N. v. P.D., 742 So.2d 1270, 1274 (Ala.Civ.App.1999) (quoting Jacoby v. Bell, 370 So.2d 278, 280 (Ala.1979)).”

Cheek v. Dyess, 1 So.3d 1025, 1029 (Ala.Civ.App.2007).

Even giving proper deference to the juvenile court’s judgment, we cannot conclude that the father met the heavy burden imposed by Ex parte McLendon.

‘A material change of circumstances occurs when important facts unknown at the time of the initial custody judgment arise that impact the welfare of the child. A custodial parent’s change of environment that endangers the child’s physical or emotional health, safety, or well-being constitutes a material change of circumstances.’ K.E.W. v. T.W.E., 990 So.2d 375, 380 (Ala.Civ.App.2007) (citation omitted).”

Cochran v. Cochran, 5 So.3d 1220, 1226 (Ala.2008).

There is no evidence in the record to support a finding that a material change in circumstances had occurred since the entry of the July 25, 2008, custody determination. The timing of the mother’s marriage to R.B. cannot be considered a material change in circumstances that impacted the welfare of the daughter, especially in light of evidence indicating that R.B. got along well with the daughter and that he had provided support for the daughter when the father had not. See Sherrod v. Sherrod, 361 So.2d 17, 19 (Ala.Civ.App.1978) (“The remarriage of one or both of the parties is not in and of itself such a material change of circumstances as to justify modification, but it is nevertheless a factor to be considered by the trial court.”).

There is also no evidence to support a conclusion that the welfare of the daughter was impacted by the mother’s unfulfilled desire to live with her husband in North Carolina. See Cochran v. Cochran, supra. Furthermore, although the mother had considered moving to North Carolina with the children, she later chose not do so. Also, although the accidental death of the son is concerning, there was no evidence presented by the father indicating that the actions of the mother brought about this tragedy. The mother’s testimony indicated that she had taken at least some measures to prevent a similar accident from occurring and that the mother had implemented other safety measures, such as placing a lock on the gate allowing entry to her pool.

Because a finding of a material change in circumstances is required in order to meet the custody-modification standard set forth in Ex parte McLendon, we must assume that the juvenile court did in fact determine that the mother’s environment had changed in such a way that it “ ‘endanger[ed] the child’s physical or emotional health, safety, or well-being.’” Cochran v. Cochran, 5 So.3d at 1226; see also Clements v. Clements, 990 So.2d 383, 390 (Ala.Civ.App.2007) (“[I]n the absence of specific findings of fact, an appellate court will assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous.”). However, this court cannot reconcile such a finding with the juvenile court’s award of joint physical custody of the daughter to the father and the mother. The juvenile court’s decision to award joint custody of the daughter to the parties indicates that the juvenile court believed that the mother had shown an ability to act in the best interests of the daughter. See § 30-3-150, Ala.Code 1975 (setting forth a state policy regarding joint custody “to assure that minor children have frequent and continuing contact with parents who have shown the ability to act in the best interest of their children ...(emphasis added)). The juvenile court’s award of joint physical custody to the mother leads this court to believe that there was no evidence indicating that the mother’s circumstances had changed in a way that impacted the best interests and welfare of the daughter.

Furthermore, even if the father had shown that a material change' in circumstances had occurred since the July 2008 custody determination, we . cannot find any evidence in the record to support a finding that the daughter’s best interests would be materially promoted by the change in custody. See Dean v. Dean, supra. The father presented no evidence regarding his home environment, who he lived with, where he lived, his work hours, his ability to financially provide for the daughter, or any other evidence to show why he, rather than the mother, should have custody. He also presented no evidence regarding the home environment of the mother or any other evidence that would otherwise support a finding that the daughter’s best interests would be materially promoted by an alternating joint-physical-custody arrangement. Thus, we conclude that the juvenile court’s implicit finding that the daughter’s best interests would be materially promoted by a change in custody was unsupported by the evidence. See Vick v. Vick, 688 So.2d 852, 856 (Ala.Civ.App.1997) (reversing a judgment modifying custody from the mother to the father based in part on the fact that the father had failed to present “more detailed evidence regarding the living situation available with the father and the present conditions of the mother’s home”).

Accordingly, we reverse the judgment of the juvenile court insofar as it modified custody of the daughter. Because we reverse the portion of the judgment modifying custody of the daughter, we also reverse the juvenile court’s judgment insofar as it modified child support. We remand this case to the juvenile court with instructions to enter an order consistent with this opinion and to address the mother’s request to modify the May 23, 2008, child-support order.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

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

      . The father's petition reflects that the petition was verified by the father on August 1, 2008.

      . The son died on August 7, 2008, shortly after his second birthday.

      . On March 6, 2009, the mother filed a notice of appeal to the Talladega Circuit Court ("the circuit court") for a trial de novo because, she alleged, the juvenile court could not certify the record as adequate and the parties would not agree to stipulate to the facts. That appeal was assigned case no. CV-09-079. However, a tape recording of the November 20, 2008, ore tenus proceeding in the juvenile court was subsequently discovered. The tape recording was transcribed, the record was certified as adequate pursuant to Rule 28(A)(1)(a), Ala. R. Juv. P., and the circuit court transferred the case to this court pursuant to Rule 28(D), Ala. R. Juv. P. This case was not submitted on briefs to this court until March 22, 2010.

      .Apparently, R.B.’s family also lives near the mother.

      . We pretermit discussion of the mother’s remaining issue on appeal.


author: PITTMAN, Judge.

text:
    Lamiaa LEE v. Kenneth L. LEE, Jr.
    2080905.
    Court of Civil Appeals of Alabama.
    April 16, 2010.

      Heather M. Bussey, Birmingham, for appellant.
    Thomas A. King, Gadsden, for appellee.
   PITTMAN, Judge.

This appeal concerns custody and visitation matters arising out of a divorce action. In November 2008, Kenneth L. Lee, Jr. (“the father”), filed an action in the Eto-wah Circuit Court seeking a judgment dissolving his marriage to Lamiaa Lee (“the mother”), a Moroccan native whom he had met, courted, and married while he was serving in the United States Navy in the Middle Eastern country of Bahrain and who had later become a naturalized citizen of the United States. The father alleged in his complaint that one child, a son who was then three years old, had been born of their marriage; he sought an exclusive award of the child’s custody because, he said, the mother planned to take the child outside the United States and to prevent the father from seeing the child again. The trial court awarded the father custody of the child pendente lite, with the mother having supervised visitation with the child, and set the remaining issues for a subsequent trial. The mother filed a motion to “transfer venue” of the action to a court in San Diego, California, based upon the parties’ presence in that city in response to command orders requiring the father to report for duty there; that motion was denied. In February 2009, after the trial court had confirmed the custody and visitation provisions of the previous pendente lite order, the mother filed an answer and a counterclaim seeking a divorce and averring that she and not the father should receive custody of the child.

After an ore tenus proceeding, at which the parties testified and submitted exhibits, the trial court entered a judgment on May 20, 2009, divorcing the parties and awarding the father sole custody of the child. The trial court made the following provisions for the mother’s visitation with the child:

“... [The mother] shall have supervised visitation with the [child] at all times agreed upon between the parties. The supervised visitation shall take place in a public area and the [mother] shall at no time leave alone with the parties’ minor son ... else it shall be considered as parental kidnapping. [The father] shall remain with the [child] at all times during said supervised visitations, but a short distance away.
“... If at any time the [father] is to be deployed, then [he] will designate a Custodian that is to keep the [child] and he/she shall be the primary Custodian of the [child]. [The mother] shall have supervised visitation in a public area at times mutually agreed upon between the Custodian and [the mother] and the [mother] shall at no time leave alone with the [child] else it shall be considered as parental kidnapping. The Custodian shall remain with the [child] at all times during said supervised visitations, but a short distance away. During and at all times that the [father] is deployed the Custodian will have total control of the [child] and is allowed to seek medical attention, obtain medical records, school records and any other documentation needed from any source regarding the [child].”

The mother, through new counsel, appealed from that judgment to this court.

The mother’s first contention is that the trial court erred in awarding custody of the child to the father. We note that an appellate court, in reviewing a trial court’s child-custody determination that was based upon evidence presented ore tenus, is to presume that the trial court’s decision is correct. Ex parte Fann, 810 So.2d 631, 633 (Ala.2001). An appellate court will not reverse the trial court’s judgment as to custody in such a case unless the evidence fails to support the trial court’s custody determination so that the appellate court must conclude that that determination is “‘plainly and palpably wrong.’ ” Ex parte Perkins, 646 So.2d 46, 47 (Ala.1994) (quoting Phillips v. Phillips, 622 So.2d 410, 412 (Ala.Civ.App.1993)). The correctness of an initial custody determination is dependent upon a trial court’s consideration of a number of factors, such as the sex and age of the child at issue; the child’s emotional, social, moral, material, and educational needs; the respective home environments offered by the parties; the characteristics of those seeking custody, including their ages, characters, relative stability, and mental and physical health; the ability of each parent to provide for the emotional, social, moral, material, and educational needs of the child; the interpersonal relationship between the child and each parent; and any other material concerns the evidence may disclose. See Vinson v. Vinson, 880 So.2d 469, 473-74 (Ala.Civ.App.2003); see also Ex parte Devine, 398 So.2d 686, 696-97 (Ala.1981) (rejecting the application of a presumption that the primary care of young children, in particular, should be placed with their mothers).

In this case, the mother argues that, based upon the child’s relatively young age, the child “needs the care and nurture of the mother,” notwithstanding the rejection of such a per se presumption in Ex parte Devine. We agree with the father that the age of the child is only one factor to be considered. Further, although the mother asserts that the father should not have custody because, she says, he does not know how to physically care for the child, the trial court heard evidence indicating that the father had cared for the child between 40 and 50 percent of the time and had toilet trained the child. Although the mother denied at that hearing the father’s estimate of the time he had cared for the child, she admitted that the father had provided for the child financially. The father testified at subsequent custody hearings that the United States Navy had assigned him to a training unit in San Diego and would likely keep him in that assignment because of the child’s custodial status. The father has secured a two-bedroom residence on a naval installation in the San Diego area that is adequate and that is conveniently close to the child’s day-care, medical, and dental providers. In contrast, the mother testified regarding her current work at “Club Med” resorts in such places as Florida and the Bahamas, and it can be inferred from her testimony that she is subject to frequent relocation; she indicated that she was “okay with” the child’s residing with the father in San Diego. The trial court could well have concluded from the evidence that the stability of the child’s life would be more fully enhanced if he stayed in the sole custody of the father at his assigned duty station in the San Diego area, or with the father’s extended family in the Gadsden area (who had agreed to care for the child if the father were to be deployed out of the United States), than if the child accompanied his mother to various resort areas.

The mother next assails two aspects of the trial court’s visitation award. The first concerns the requirement that the mother’s visitation be supervised. Although the mother cites the main opinion in Jackson v. Jackson, 999 So.2d 488 (Ala.Civ.App.2007), for the proposition that a trial court may not “select[] an overly broad restriction that does more than address a particular concern and thereby unduly infringe[ ] upon the parent-child relationship,” 999 So.2d at 494-95, we cannot conclude that requiring supervised visitation was not within the trial court’s discretion in this particular case. The father testified that the mother had often threatened to abduct the child and transport him to Bahrain or to her home country of Morocco, a country that, the father correctly notes was not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction of October 25, 1980, as of the date that this appeal was submitted. In particular, the father testified that, just over one week before the final hearing, the mother had stated, “ ‘If the Judge does not give me what I want, I’m taking him [i.e., the child] to Morocco.’” There was also evidence in the record tending to show that the mother’s father is a law-enforcement official in Morocco and that one of her sisters works for an airline serving the Middle East. The record further indicates that the mother had obtained both Moroccan and American passports for herself and that she would be able to obtain a replacement passport for the child by producing a copy, currently in her possession, of the child’s birth certificate. Although our cases are silent on the point, a number of cases in American jurisdictions recognize the propriety of requiring supervised visitation when the noncustodial parent is shown to pose a risk of abduction. E.g., Shady v. Shady, 858 N.E.2d 128, 143 (Ind.Ct.App.2006); Moon v. Moon, 277 Ga. 375, 377, 589 S.E.2d 76, 79-80 (2003); and Monette v. Hoff, 958 P.2d 434, 436 (Alaska 1998). We perceive no error here.

Although the trial court acted within its discretion in requiring the mother’s visitation with the child to be supervised, we reach a different conclusion as to a second aspect of the visitation award challenged by the mother: that her visitation is subject to the whim of the father. The trial court did not specify particular visitation times for the mother, stating instead that visitation times shall be “agreed upon between the parties” or, if the father is deployed, mutually agreed upon between (a) the custodian designated by the father and (b) the mother. The mother correctly cites K.L.R. v. L.C.R., 854 So.2d 124, 132-33 (Ala.Civ.App.2003), for the proposition that visitation provisions that merely allow the parties to arrange visitation are improper because they, in effect, allow the custodial parent to determine the noncustodial parent’s visitation schedule. Accord K.L.U. v. M.C., 809 So.2d 837, 840-41 (Ala.Civ.App.2001); Bryant v. Bryant, 739 So.2d 53, 56 (Ala.Civ.App.1999). Although we sympathize with the trial court’s attempt to accommodate the mother’s transient employment arrangements by encouraging the parties to amicably resolve visitation scheduling, that court cannot properly leave the fundamental issue of visitation subject to a veto by the father or his designee.

For the reasons stated herein, we reverse that aspect of the trial court’s judgment predicating the mother’s visitation with the child upon the agreement of the parties, and we remand the cause so that the trial court may enter a judgment setting forth a specific visitation schedule for the mother, subject to the conditions that the trial court, in its discretion, may set. In all other respects, the trial court’s judgment is affirmed.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

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

      . According to an Internet Web site maintained by the Hague Conference on Private International Law, Morocco apparently did accede to the Hague Convention as of March 9, 2010, and the provisions of the Convention will enter into force there on June 1, 2010. See "HCCH Status Table,” located at http:// www.hcch.net/index_en.php?act= conventions.status&cid=24 (as visited on April 16, 2010; a copy of the Web page containing that table is available in the case file of the clerk of the Alabama Court of Civil Appeals).


author: THOMPSON, Presiding Judge.

text:
    Howard WELLS v. Roger WELLS, as administrator of the estate of Sarah Frances Wells.
    2081156.
    Court of Civil Appeals of Alabama.
    April 16, 2010.

      Misty S. Ledbetter, Legal Services Alabama, Inc., Anniston, for appellant.
    Dani V. Bone, Gadsden; and Mari Morrison, Birmingham, for appellee.
   THOMPSON, Presiding Judge.

Howard Wells (“Howard”) appeals from the judgment of the Etowah Circuit Court in favor of his brother, Roger Wells (“Roger”), the administrator of the estate of Sarah Frances Wells; Sarah Frances Wells (“the mother”) was the parties’ mother. For the reasons set forth herein, we reverse the judgment.

The mother had lived in Gadsden in a house that she owned. The mother had five sons. Before the time pertinent to the present case, two of her sons had died. In 2007, the mother began living in an assisted-living facility. In the summer of 2007, she was admitted to the hospital where she remained until her death. In August 2007, the mother executed a deed conveying her house to Howard but reserving a life estate in the house for herself (“the August 2007 deed”). Because Howard feared that the August 2007 deed, even though it was recorded, was insufficient because it was witnessed by only one person, he had a second deed prepared for the mother, which she executed in September 2007 (“the September 2007 deed”).

The mother died on October 6, 2007, and Roger was appointed the administrator of her estate. On December 4, 2007, Roger, as the administrator of the mother’s estate, filed an action against Howard in which he sought a judgment voiding the August 2007 deed on the basis that the mother had not been mentally competent to execute that deed.

The trial court held a bench trial on May 13, 2009. The focus of the trial appears to have concerned the validity of the September 2007 deed rather than the August 2007 deed. At the trial, Sherry Wells (“Sherry”), Roger’s wife, testified that she and Roger had spent a substantial amount of time with the mother, despite the fact that they resided in Birmingham. Sherry testified that the mother had had problems with her memory. In particular, she stated, the mother often had asked the same question multiple times, forgetting the answer that had just been given her. Sherry testified that she and Roger had paid, the mother’s bills for her, had purchased groceries for her, and had prepared food for her so that the mother would not have to cook. Sherry testified that the mother would not have known what she was signing when she executed the deed conveying her house to Howard. Sherry testified that, in her opinion, the mother had not been competent to make business decisions and to handle her business affairs.

Roger testified that the mother had often repeated herself and had asked the same questions multiple times. He stated that she had not been capable of handling her business affairs, that he had had to handle her business affairs for her, and that he had paid her bills for her because she did not remember to do so. Roger testified that the mother had been admitted to the hospital in the summer of 2007 and that, at that time, she had been confused and had not known where she was. He stated that he did not believe that, in signing the deeds conveying her house to Howard, she had known what she was doing. He testified that, during the period when she signed the deeds, she would have signed anything that was placed in front of her.

Opal Hathcock, a former neighbor of the mother’s, testified that she had been a close friend of the mother’s for more than 40 years. Hathcock testified that the mother had told her on numerous occasions that it was the mother’s intent to give her house to Howard because Howard was handicapped and, unlike his brothers, was unable to obtain employment. On cross-examination by Roger, Hathcock testified that she had not talked to the mother after the mother was hospitalized in the summer of 2007.

Vivian Rogers, another former neighbor of the mother’s, testified that she had known the mother for 50 years and that the mother had told her on numerous occasions that it was her intent to leave her house to Howard. However, like Hath-cock, she had not spoken to the mother after the mother was hospitalized in the summer of 2007.

Bill Rogers, another former neighbor of the mother’s, testified that he had known the mother for 80 years and that she had told him that she wanted Howard to have her house. He stated, however, that he had not spoken with the mother after she became sick.

Gary Burns, the attorney who had drafted the deeds at issue in the case, testified that Howard had come to his office and had asked him to prepare a deed conveying the mother’s house to him. He stated that he had done so and that he had given the deed to Howard to take to the mother. After the mother signed the deed on August 8, 2007, Burns told Howard to have it recorded. When Howard attempted to do so, Howard was told by someone in the probate office that the deed could not be recorded because it contained the signature of only one witness. Howard had it recorded anyway. Burns testified that Howard later returned to him and requested that he prepare another deed because Howard feared that the first deed, containing the signature of only one witness, was not effective. Burns testified that, at that point, he called the mother and she told him that she wanted Howard to have her house because her other sons had houses but Howard did not. Burns testified that, during that conversation, the mother seemed competent. Although he had included a life estate for her in the first deed. Burns testified that the mother told him that, in preparing the second deed, there would be no need for him to include a life estate for her. After he prepared the deed, he sent his secretary, Linda Gat-tis, to the hospital with the deed for the mother to sign it and for Gattis to notarize it. He testified that, after Gattis returned with the deed, he asked her if the mother appeared competent, to which Gattis responded affirmatively.

Gattis testified at the trial. About her meeting with the mother when the mother signed the September 2007 deed, Gattis testified as follows:

“Q. So, you went to her hospital room to see her?
“A. Yes, I did.
“Q. And at the time that you went to have her sign this, did you go over the form with her and explain it to her?
“A. Yes, I did.
“Q. Did she seem like she was competent at the time that she signed it?
“A. Yes, she was.
“Q. Did she fully understand and agree that this is what she wanted to do?
“A. Yes, she did.
“Q. And have you done this in the past in your position as a legal secretary?
“A. Yes, I have.
“Q. And when [the mother] signed this, did you feel fully confident that she knew what she was doing when she signed and you notarized because of that?
“A. Right. Yes.”

In further testimony, Gattis stated that she had asked the mother whether she wanted to sign the deed, and the mother had responded that she did.

In addition to the testimony of the foregoing witnesses, Roger introduced into evidence the deposition of Dr. Hemant Sinha. In his deposition, Dr. Sinha, who specialized in internal medicine, testified that he had seen the mother when she had been admitted to the hospital in November 2006. He testified that, at that time, she had numerous medical problems, including uncontrolled diabetes, uncontrolled blood pressure, and dizziness. He testified that he had seen her again when she was admitted to the hospital in the summer of 2007.

Dr. Sinha testified that the mother had been diagnosed with chronic dementia. He stated that a person with chronic dementia cannot remember recent events and experiences forgetfulness. He testified that it could be a problem for a person with chronic dementia to handle his or her everyday affairs, such as paying bills, because that person may not remember which bills he or she had paid. Specifically with regard to the mother, Dr. Sinha testified that he had seen the mother only for the acute medical problems she had experienced at the hospital, and he “did not go into any detail about investigating” her dementia.

With regard to the mother’s dementia, Dr. Sinha’s deposition contained the following exchange:

“Q. Okay. And you may or may not be able to answer this question. But what we are here about is that allegedly [the mother] signed a deed of her property, her home, over to one of her sons. Okay. I guess my question would be: During that time, would [the mother] have the capacity to make a decision to sign her property over to somebody else? Would she know what she was doing at the time?
“A. When was that? What time was this?
“Q. That was in August of '07.
“A. Well, I mean, like you said, I can’t say for sure whether she had the mental capacity to do or not. But by that time she already, you know, had the problems with the memory. And she was already on that medicine. You know, once again, we’ll have to go back on the exact detail dictation of Dr. Jamil, you know, because they do, you know, detailed checkup like MMST and stuff like that. You know, they do a full mental exam to tell us exactly what on that particular day her mental status was, you know. But we did have some concerns, like I said, you know, starting from the November 2006 and, of course, we are talking now August 2007. So that certainly she already had that diagnosis, you know, of ongoing dementia by then.
“Q. Okay. So are you saying that if nothing else it would be a concern?
“A. Yes.
“Q. Okay. Would she — would you recommend — would you have recommended at that time that she be able to make a decision like that or handle her business that way?
“A. Well, you know, she was already on the medicine, you know. So the medicine sometimes helps. You know, if other factors that could cause dementia like a thyroid problem, B-12 — and I’m pretty sure we had already checked those things and Dr. Mu also had checked all those things. And I’m pretty sure they were okay. Dr. Mu is an expert on thyroid and the diabetes, you know. So he says that she had some, you know, peripheral neuropathy and the dementia. That is from his note of November of 2006. So that would be a concern, but I can’t say, you know, for sure whether she was yes or no able to do that, you know.”

When asked the difference between dementia and chronic dementia, Dr. Sinha testified that a person with chronic dementia has an “underlying baseline dementia which can go up and down based on different things.” When asked whether a person with chronic dementia should “be writing checks, paying their bills, [and] taking care of their daily affairs,” Dr. Sinha responded: ‘Well, they may make mistakes. I mean, it is their wish and will and right to do it, you know, if they want to do it. But now, of course, there are more chances of making mistakes.”

Roger also entered into evidence certain medical records of the mother. According to those records, the mother was admitted to the hospital in November 2006 complaining of dizziness, multiple recent falls, and uncontrolled diabetes. The record providing the history taken of the mother on admission stated: “Historical information is being provided by old records and by the [mother]’s daughter-in-law.... During the interview it is very evident that the [mother] is confused. She is unable to recall recent and long-term events.” Dr. Sinha, who examined the mother during her hospital admission, stated in his record of that examination that the mother was experiencing some confusion. He sought a consultation from another doctor regarding the mother’s confusion and possible dementia. In the mother’s discharge summary from her hospital stay, Dr. Sinha listed a diagnosis upon discharge of dementia with no behavioral disturbances. In that report, he wrote: “[The mother] was very confused on admission and Dr. Jamil was consulted to rule out dementia. After examination, he concluded that [the mother] was alert and oriented x 3 but had some cognitive deficits noted.” Dr. Sinha also noted that the mother “still has some confusion at times.... ” The medical records reflect that the mother was admitted to the hospital in June 2007 for surgery related to colon cancer. Records from that admission indicate that the mother had a continuing diagnosis of chronic dementia and had been prescribed medication for her dementia.

On May 18, 2009, the trial court entered a final judgment in Roger’s favor. In its judgment, the trial court wrote, in pertinent part:

“[The mother] had a diagnosed mental incapacity such that she would be unable to execute this deed. See Ala.Code [1975,] § 35-4-1.
“Medical testimony and medical records introduced in this case confirm her dementia was chronic, meaning a long-term, underlying, baseline dementia. See [Roger’s] Exhibit One, Dr. Sinha’s Deposition.
“[Howard’s] attorney pointed out that patients with chronic dementia may have better days and worse days, but since a baseline dementia is always present, such would seem to preclude any argument by [Howard] that the deed could have been executed during a ‘lucid interval.’
“Of course, a deed is not invalid for grantor’s want of mental capacity unless she did not have sufficient capacity to fairly understand the nature and consequences of her act. See Frederic v. Wilkins, 182 Ala. 348, 62 So. 518 (1913). However, Dr. Sinha’s testimony precludes the possibility that [the mother] retained sufficient residual functional capacity to handle even the most basic of everyday business affairs. See [Roger’s] Exhibit 1, at p. 14.
“Several witnesses that were long time neighbors and acquaintances of [the mother] testified that it had been her intent for several years to deed the land to [Howard], If that be the case, it is most unfortunate that the [mother] did not execute a deed before her Alzheimer’s dementia diagnosis (see [Roger’s] Exhibits 1 and 2) and while she retained sufficient legal capacity to execute this deed instrument.
“With the [mother] lacking same at the time she executed this deed, this subject deed is hereby declared void. It is therefore set aside, and held for naught. See Wilkinson v. Wilkinson, 129 Ala. 279, 30 So. 578 (1901).”

Howard filed a motion to alter, amend, or vacate the judgment or, in the alternative, for a new trial, which the trial court denied.

Howard filed a timely appeal to this court, which transferred the appeal to the supreme court for lack of appellate jurisdiction. The supreme court transferred the appeal back to this court pursuant to § 12-2-7(6), Ala.Code 1975.

The standard by which this court reviews a judgment entered following a bench trial is well settled:

“Because the trial court heard ore tenus evidence during the bench trial, the ore tenus standard of review applies. Our ore tenus standard of review is well settled. ‘ “When a judge in a nonjury case hears oral testimony, a judgment based on findings of fact based on that testimony will be presumed correct and will not be disturbed on appeal except for a plain and palpable error.” ’ Smith v. Muchia, 854 So.2d 85, 92 (Ala.2003) (quoting Allstate Ins. Co. v. Skelton, 675 So.2d 377, 379 (Ala.1996)).
“‘“The ore tenus rule is grounded upon the principle that when the trial court hears oral testimony it has an opportunity to evaluate the demeanor and credibility of witnesses.” Hall v. Mazzone, 486 So.2d 408, 410 (Ala.1986). The rule applies to “disputed issues of fact,” whether the dispute is based entirely upon oral testimony or upon a combination of oral testimony and documentary evidence. Born v. Clark, 662 So.2d 669, 672 (Ala.1995). The ore tenus standard of review, succinctly stated, is as follows:
“ ‘ “[W]here the evidence has been [presented] ore tenus, a presumption of correctness attends the trial court’s conclusion on issues of fact, and this Court will not disturb the trial court’s conclusion unless it is clearly erroneous and against the great weight of the evidence, but will affirm the judgment if, under any reasonable aspect, it is supported by credible evidence.” ’
“Reed v. Board of Trs. for Alabama State Univ., 778 So.2d 791, 795 (Ala.2000) (quoting Raidt v. Crane, 342 So.2d 358, 360 (Ala.1977)). However, ‘that presumption [of correctness] has no application when the trial court is shown to have improperly applied the law to the facts.’ Ex parte Board of Zoning Adjustment of Mobile, 636 So.2d 415, 417 (Ala.1994).”

Kennedy v. Boles Inv., Inc., [Ms. 1080607, March 12, 2010] — So.3d -, - (Ala.2010).

Like our standard of review, the law applicable to the resolution of questions related to the legal capacity to convey real property is well settled:

“The test for insanity as the ground for voiding a deed is whether the grant- or ““had sufficient capacity to understand in a reasonable manner the nature and effect of the act which he was doing.’ ” ’ Wilson v. Wehunt, 631 So.2d 991, 996 (Ala.1994) (quoting Hall v. Britton, 216 Ala. 265, 267, 113 So. 238, 239 (1927), quoting in turn 18 C.J. 218, § 131); see also McAlister v. Deatherage, 523 So.2d 387, 388 (Ala.1988), and Weaver v. Carothers, 228 Ala. 157, 153 So. 201 (1934). In order to render a deed void, the burden of proof is on the party attacking the conveyance to show the incapacity of the grantor at the time the conveyance is made. Abbott v. Rogers, 680 So.2d 315, 317 (Ala.Civ.App.1996). However, insanity existing before the time of the conveyance will raise a presumption of insanity at the time of the conveyance if it is shown that the insanity is permanent in its nature. Abbott, 680 So.2d at 317 (citing Wilson, 631 So.2d at 996); see also Pritchard v. Fowler, 171 Ala. 662, 672, 55 So. 147, 149 (1911). If the party challenging the conveyance establishes that the grantor suffers from a permanent type of insanity, then the burden shifts to the party defending the conveyance to show that the transaction occurred during a lucid interval. Wilson, 631 So.2d at 996.”

Ex parte Chris Langley Timber & Mgmt., Inc., 923 So.2d 1100, 1105 (Ala.2005).

Howard contends that the evidence at trial did not support the trial court’s conclusion that the mother lacked testamentary capacity at the time she executed the September 2007 deed. He argues that he presented substantial testimony demonstrating that the mother had, for years, intended to convey her house to him, and, quoting McKinney v. Weatherford, 242 Ala. 493, 496, 7 So.2d 259, 262 (1942), he points out that “a deed or will being made in conformity to a fixed determination, freely entertained and expressed for years, is the strongest proof of capacity to make such a deed or will.” He argues that Roger presented no evidence regarding the mother’s intentions, physical demean- or, or capacity at the time she signed the September 2007 deed. He contends that the medical records and the deposition of Dr. Sinha indicating that the mother had dementia did not sufficiently satisfy Roger’s burden of demonstrating that the mother was incompetent to execute the September 2007 deed.

As previously stated, a party seeking to have a deed set aside as void based on the grantor’s incompetence can satisfy its burden of proof by submitting evidence indicating that the person executing the deed was suffering from an incompetence that was permanent in nature. In the present case, the medical records indicate that the mother was diagnosed with dementia almost a year before she signed the September 2007 deed and that, at the time she was diagnosed with that disease, she was very confused and unable to give an appropriate history to the nurse who was examining her. The medical records indicate that she was thereafter diagnosed with chronic dementia, which Dr. Sinha testified constituted constant, as opposed to intermittent, dementia. Roger and his wife, who cared for the mother during the last year of her life, testified that the mother often had repeated questions that they had already answered and that the mother had been unable to take care of her financial business. They also testified, without objection, that they did not believe that the mother would have understood what she was signing when presented with the deeds, and Roger testified that the mother would have signed any document placed in front of her.

Having reviewed all the evidence of record, we conclude that the trial court’s finding that the mother experienced a permanent incompetence was supported by substantial evidence. Thus, Howard’s contention is without merit. We recognize, of course, that Howard submitted evidence, through the testimony of the mother’s neighbors, as well as through the testimony of the attorney and the secretary involved in the transaction, indicating that, at the time of the transaction, the mother did not suffer from a lack of capacity to convey her house to Howard. However, it is not within the purview of this court to weigh the conflicting evidence submitted at trial; that was the function of the trial judge. Kennedy, — So.3d at -. As stated, the trial court had before it sufficient evidence to conclude that the mother suffered from a permanent incompetence, and, as a result, we cannot say that it erred in so concluding.

Howard also contends that the trial court erred when it concluded that the mother’s diagnosis of dementia precluded any argument from him that the mother could have experienced a lucid interval when she executed the deed. We agree.

Because the trial court concluded that the mother suffered a permanent incompetence, the burden shifted to Howard to prove that the mother was lucid at the time she executed the September 2007 deed. Ex parte Chris Langley Timber & Management, Inc., 923 So.2d at 1105. Although Howard set forth such evidence in the form of the testimony of the attorney and the secretary involved in the transaction that the mother was fully competent at the time she executed the September 2007 deed, the trial court, in its judgment, disregarded that evidence by stating: “[Howard’s] attorney pointed out that patients with chronic dementia may have better days and worse days, but since a baseline dementia is always present, such would seem to preclude any argument by [Howard] that the [September 2007] deed could have been executed during a ‘lucid interval.’ ” Our review of the medical testimony, however, does not support the trial court’s conclusion in that regard.

At no point in his deposition did Dr. Sinha testify that the mother’s .chronic dementia prevented her from having a lucid interval. Indeed, Dr. Sinha refused to opine that the mother had not retained the mental capacity, despite her diagnosis of chronic dementia, to convey her house to Howard. The mother’s medical records likewise fail to disclose any evidence supporting the trial court’s conclusion that the mother’s diagnosis of chronic dementia, standing alone, precluded Howard from contending that she had experienced a lucid interval at the time she executed the deed. Finally, neither the testimony of Roger nor the testimony of Sherry support the conclusion of the trial court that the mere fact the mother was diagnosed with chronic dementia, ipso facto, prevented her from ever experiencing a lucid interval.

Because the evidence of record does not support the trial court’s conclusion that the mother’s chronic dementia precluded the possibility that she could have been lucid at the time that she executed the deed, the trial court’s judgment is due to be reversed and the cause remanded. On remand, the trial court should consider the remaining evidence of record to determine whether or not that evidence supports a finding that the mother, at the time she executed the September 2007 deed, was experiencing a lucid interval such that she was competent to execute the September 2007 deed.

Roger’s request, on appeal, for an award of an attorney fee on behalf of the mother’s estate is denied.

REVERSED AND REMANDED.

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

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

      . The record reflects that Howard is deaf.

      2. Apparently, the trial court is referring to the September 2007 deed, the second deed the mother executed. The evidence at trial focused on that deed. On appeal, the validity of that deed is the only issue presented.