author: MOORE, Judge. BRYAN, Judge,

text:
    Beverly Renee SHEWBART v. John Michael SHEWBART.
    2090702.
    Court of Civil Appeals of Alabama.
    Dec. 10, 2010.

      Gary L. Jester of Jester & Jenkins, Florence, for appellant.
    Eddie Beason of McDowell, Beason & Hamilton, P.C., Russellville, for appellee.
   MOORE, Judge.

This is the second time these parties, Beverly Renee Shewbart (“the wife”) and John Michael Shewbart (“the husband”), have been before this court. In Shewbart v. Shewbart, 19 So.3d 223 (Ala.Civ.App.2009) (“Shewbart”), the wife appealed from the trial court’s July 10, 2008, judgment of divorce. In that judgment, the trial court divided the parties’ marital property, assigning a value of $14,000 to the parties’ business, known as John Shewbart d/b/a Swamp John’s Restaurant & Catering, and awarded the wife one-half of that value. The wife appealed, asserting that the trial court had erred in its valuation of the business and by failing to award her alimony.

This court reversed the trial court’s judgment as to the property division and the failure to award alimony, concluding that, in valuing the business, the trial court had failed to consider the consistent income stream derived from the business. Shewbart, 19 So.3d at 232. We remanded the cause “for the trial court to determine the fair-market value of the sole proprietorship, taking into consideration all of its assets, and to then consider that value in fashioning an equitable division of the marital property.” 19 So.3d at 233. We also instructed the trial court to reconsider, in light of any new property division it entered on remand, whether the wife was entitled to an award of alimony. Id. We affirmed all other aspects of the trial court’s judgment.

On February 25, 2010, the trial court conducted another evidentiary hearing. At that hearing, in addition to taking further testimony from the husband and the wife, the trial court heard the testimony of Carter Norvell, a certified public accountant with expertise in business valuations who had been hired by the wife. Norvell stated that, in his opinion, the income-approach method was the most appropriate way to value the parties’ business and that he had calculated a value for the business under the income-approach method using two different sources of information.

Norvell first relied on information obtained from the husband’s 2006 and 2007 federal income-tax returns. He calculated the earnings of the business before any deductions were taken for interest, taxes, depreciation, or amortization (generally referred to as “EBITDA”), averaged the EBITDA obtained for those two years, and then applied a multiple of four to arrive at an estimated value of the business as an ongoing enterprise. Using that income-approach method, Norvell valued the business at $191,376.

Norvell then calculated the value of the business by considering the husband’s deposition testimony, in which the husband testified that he withdrew $1,500 per week from the business as his salary. Norvell multiplied that $1,500 weekly salary by 50 weeks (allowing two weeks a year as vacation), which provided a total annual net income of $75,000; to that annual net income, Norvell applied a multiple of four to arrive at an estimated value of the business of $300,000.

Norvell explained his decision to apply a multiple of four in his valuation as follows:

“I used a multiple of four, which I feel ... is conservative. Businesses, traditionally, are valued anywhere from ... maybe a low of three up to ... a number quite a bit higher. We have had businesses sell for multiples of 10 or 12 before but those are a little bit unusual.”

Responding to the trial court’s request for further information regarding the multiple to be applied in the valuation, Norvell stated:

“It is ... a judgment call, basically ... on the side of the valuation analyst. And you just, you take everything into consideration as far as a business, how it’s run, you know, things of that nature and apply a multiple to the net earnings of that business to try to come up with a fair estimate of the — what the value of that business is.”

Norvell admitted that his decision to use a multiple of four could be considered arbitrary.

Norvell also acknowledged that the husband’s 2008 income had not been provided to him and that the 2008 data was more relevant than the 2006 and 2007 data in determining the value of the business. Norvell admitted that the economy in the United States had suffered a downturn in the last several years and that a downturn in the economy could negatively impact the husband’s income. Norvell, however, testified that he had no indication that the economy had, in fact, impacted the husband’s income.

Norvell also acknowledged that, at the time he performed his valuation, he had been unaware that the husband worked 70 to 80 hours per week in the business. Norvell agreed that, if the husband’s net income for 2008 had been $14,352, as represented, and the husband had worked 70 to 80 hours a week to earn that amount, Norvell would have placed a different, presumably lower, value on the business. Norvell also testified that he had been unaware that the business was located in a facility owned by the husband’s sister and rented by the husband; Norvell testified that the location of the business was relevant to its value.

On March 23, 2010, the trial court entered an amended divorce judgment, stating:

“1. The Court heard evidence concerning the value of the sole proprietorship. It is not an easy proposition to put a value on a business such as Swamp John’s. It is largely a one-man organization that’s value is greatly determined by how many hours are put in by the owner. The sole proprietorship does not own the property where it is located. The Court had already divided the value of the equipment of the business between the two parties.
“2. The Court is left to determine the future earning capacity of the business. The Court is persuaded to use the income approach as the model to determine the value of the business. The Court has averaged the last three years income as reported on the tax forms. The income figure is the number before depreciation. These were $47,726.00 for 2006, $42,901.00 for 2007, and $14,352.00 for 2008. The three year average is $34,993.00.
“3. The Court will then take the average of $34,993.00 and multiply by two. The Court finds the multiple of two is appropriate based on the testimony of Carter Norvell, who described the income approach. The Court uses the multiple of two instead of a number such as four because of the long hours of the business and what the Court feels is a realistic value in the local economy. This produces a value of $69,986.00. One-half of this number is $34,993.00. The Court subtracts $7,000.00 for what it already allocated to the [wife] for her interest in the equipment and vehicles of the business. This produces the value of $27,993.00, which is still owed to the [wife]. The Court will round this figure to $28,000.00.
“4. The Court ORDERS the [husband] to pay the amount of $28,000.00 to the [wife] for her one-half interest in the business. The [husband] shall pay the amount of $400.00 a month for seventy (70) months to equal the total of $28,000.00.
“5. All other provisions of the Divorce Decree are adopted as fully set out.”
The wife again appeals.
Analysis

On appeal, the wife asserts that the trial court failed to follow this court’s mandate on remand; that the judgment entered by the trial court on remand was against the great weight of the evidence and, thus, exceeded the trial court’s discretion; that the trial court’s valuation of the business was the result of a miscalculation; and that the trial court committed reversible error in failing to award her alimony.

Business Valuation

We first address the wife’s argument that the trial court failed to follow this court’s mandate on remand. In Ex parte Alabama Power Co., 431 So.2d 151, 155 (Ala.1983), the supreme court, quoting 5 Am.Jur.2d Appeal and Error § 991 (1962), stated:

“ ‘It is the duty of the trial court, on remand, to comply strictly with the mandate of the appellate court according to its true intent and meaning, as determined by the directions given by the reviewing court. No judgment other than that directed or permitted by the reviewing court may be entered.... The appellate court’s decision is final as to all matters before it, becomes the law of the case, and must be executed according to the mandate, without granting a new trial or taking additional evidence ....’”

As stated above, in Shewbart, supra, we remanded the cause “for the trial court to determine the fair-market value of the sole proprietorship, taking into consideration all of its assets, and to then consider that value in fashioning an equitable division of the marital property.” 19 So.3d at 233. We also instructed the trial court to reconsider, in light of any new property division entered, whether the wife was entitled to an award of alimony. Id.

On remand, the trial court conducted a hearing and received evidence for the purpose of determining the value of the business. The trial court then entered a judgment addressing the value of the business in light of the evidence presented at that hearing. The trial court divided the remaining marital asset and, although it did not expressly address the issue, it implicitly denied the wife’s claim for alimony. In light of the hearing held on remand, the issues considered at that hearing, and the language of the trial court’s judgment, we must conclude that, on remand, the trial court complied with this court’s mandate in Shewbart, supra.

The wife next asserts that the trial court erred in valuing the business. The judgment indicates that the trial court accepted Norvell’s opinion that the “income-approach” method should be used to assess the value of the business. As explained by Norvell, under that method, the evaluator first determines the EBITDA average of the business and then applies a multiple that takes into account various factors relating to the operation of the business. The trial court followed that methodology by using the most recent three years of the husband’s income-tax returns to determine the EBITDA average and then multiplying that average by two. The wife contends that the trial court erred in selecting both the figures upon which it based its EBITDA average and in using a multiple of two. The wife maintains that the trial court should have determined that the husband was actually earning $1,500 per week from the business, not the lesser numbers reflected in his income-tax returns. The wife further contends that, even if the figures from the income-tax returns are reliable, the trial court misconstrued those returns for the tax years 2006 and 2007. The wife finally argues that the use of a multiple of two is not based on the evidence, but rests on pure speculation and conjecture.

In September 2007, the husband testified in his deposition that he made $1,500 per week from the business. Bank-account records from 2006 and 2007 introduced by the wife at trial also indicated that the husband was depositing and spending around $1,500 per week during that period. However, the parties’ income-tax return shows that the EBITDA figure for 2006 was approximately $42,905, or $825.10 per week. In 2007, the EBIT-DA figure as reported on the husband’s income-tax return amounted to $52,782, or $1,015.04 per week. In June 2008, at the time of the first trial, the husband reiterated that the business earned roughly $1,500 per week. According to his 2008 income-tax return, however, we calculate the 2008 EBITDA figure for the business to be $14,352, or $276 per week. Based on the foregoing evidence, the wife maintains that the income-tax returns do not accurately reflect the income of the business but that the testimony of the husband establishes its actual earnings of $1,500 per week.

The evidence is not, however, as one-sided as the wife maintains. In his September 2007 deposition, the husband testified that he “usually averaged” $1,500 per week and that “[he] guess[ed] that’s right” that he received $75,000 to $76,000 per year in income from the business, which was a sole proprietorship. At the June 2008 trial, the husband testified that, although he believed the business made $1,500 per week, its actual earnings were “whatever the tax returns would show.” The husband testified that his income-tax returns recorded all income received by the business, even the cash the husband took out of the business for personal use. The husband also testified that the bank accounts included deposits not only from money earned by the business, but also dividends from another business, loans from his parents, and money transferred from a home-equity line of credit. Thus, the trial court reasonably could have concluded that the income-tax returns accurately state the earnings of the business despite the existence of the evidence to the contrary. It is the duty of the trial court, not this court, to resolve conflicting evidence. Young v. Young, 515 So.2d 32, 33 (Ala.Civ.App.1987). Although this court may have been persuaded that the business had higher earnings, “an appellate court may not substitute its judgment for that of the trial court; Alabama law does not allow this court to reweigh the evidence.” See Pate v. Guy, 942 So.2d 380, 387 (Ala.Civ.App.2005).

We do, however, agree with the wife that the trial court committed a mathematical error in calculating the EBITDA average from the income-tax returns. The trial court purported to use the husband’s income-tax returns from 2006 through 2008 to establish a three-year EBITDA average. As stated above, those income-tax returns show that the EBITDA figures were $42,905 in 2006; $52,782 in 2007; and $14,352 in 2008. The trial court erroneously derived the EBITDA amounts for 2006 as $47,726 and for 2007 as $42,901. Using the incorrect figures, the trial court determined the EBITDA three-year average to be $34,993 instead of the correct amount of $36,679.67.

However, we conclude that the trial court did not commit any error in using a multiple of two to value the business. The trial court explained that it reduced the multiple to account for the long hours worked by the husband and the economic conditions prevailing in Franklin County, factors Norvell testified would affect the value of the business but which he had not taken into account. The evidence in the record shows that the husband often worked 70 to 80 hours per week in the business. Additionally, the trial court heard evidence of the high unemployment rate in the community, and it could also take judicial notice of the local economy. See, e.g., Clarke v. Clarke, 47 Ala.App. 558, 564, 258 So.2d 902, 907 (1972) (taking judicial notice of inflated economy); and First Nat’l Bank of Opp v. Wise, 241 Ala. 481, 484, 3 So.2d 68, 71 (1941) (taking judicial notice of nationwide economic depression). Although Norvell testified that he had personally never used a multiple lower than three, Norvell did not testify that the use of such a multiple would be completely outside the norms of valid valuation practices. In light of those circumstances, and considering further that Norvell testified that the use of a multiple of four could be considered arbitrary, we cannot say that the trial court engaged in speculation and conjecture in using a lower multiple, as the wife contends. We also cannot place the trial court in error for not adopting either of the computations advocated by Norvell. See Bunn v. Bunn, 628 So.2d 695, 697 (Ala.Civ.App.1993) (“An expert’s opinion is not conclusive on the trier of fact, even if the testimony was uncontroverted, because a trial court must look to the entire evidence and its own observations in deciding factual issues.”).

Putting the correct figures into the formula used by the trial court, the value of the business should have been computed to be $73,359.34. Because the trial court indicated its intent to award the wife one-half of that value, less $7,000 for the value the wife had already received, the trial court should have awarded the wife $29,679.67 rather than the $28,000 stated in its judgment. We therefore reverse the judgment and remand the case for the trial court to correct that error.

Periodic Alimony

The wife finally asserts that the trial court exceeded its discretion in failing to award her periodic alimony. Under Alabama law, periodic alimony consists of regular installment payments made from one spouse to another to enable the recipient spouse, to the extent possible, to maintain his or her standard of living as it existed during the marriage, i.e., the “economic status quo.” Orr v. Orr, 374 So.2d 895, 897 (Ala.Civ.App.1979). A divorcing spouse is not automatically entitled to periodic alimony, Beckwith v. Beckwith, 475 So.2d 575, 577 (Ala.Civ.App.1985) (holding that periodic alimony is not mandatory), but the decision whether to award periodic alimony rests in the sound judicial discretion of the trial court. Bush v. Bush, 784 So.2d 299, 300 (Ala.Civ.App.2000).

In exercising its discretion, the trial court is guided by equitable considerations. See Killingsworth v. Killingsworth, 925 So.2d 977, 983 (Ala.Civ.App. 2005). This court and our supreme court have enumerated the many factors trial courts must consider when weighing the propriety of an award of periodic alimony, Edwards v. Edwards, 26 So.3d 1254, 1259 (Ala.Civ.App.2009), which include: the length of the marriage, Stone v. Stone, 26 So.3d 1232, 1236 (Ala.Civ.App.2009); the standard of living to which the parties became accustomed during the marriage, Washington v. Washington, 24 So.3d 1126, 1135-36 (Ala.Civ.App.2009); the relative fault of the parties for the breakdown of the marriage, Lackey v. Lackey, 18 So.3d 393, 401 (Ala.Civ.App.2009); the age and health of the parties, Ex parte Elliott, 782 So.2d 308, 311 (Ala.2000); and the future employment prospects of the parties, Baggett v. Baggett, 855 So.2d 556, 559 (Ala.Civ. App.2003). In weighing those factors, a trial court essentially determines whether the petitioning spouse has demonstrated a need for continuing monetary support to sustain the former, marital standard of living that the responding spouse can and, under the circumstances, should meet. See Gates v. Gates, 830 So.2d 746, 749-50 (Ala.Civ.App.2002); Hewitt v. Hewitt, 637 So.2d 1382, 1384 (AIa.Civ.App.1994) (“The failure to award alimony, although discretionary, is arbitrary and capricious when the needs of the wife are shown to merit an award and the husband has the ability to pay.”).

A petitioning spouse proves a need for periodic alimony by showing that without such financial support he or she will be unable to maintain the parties’ former marital lifestyle. See Pickett v. Pickett, 723 So.2d 71, 74 (Ala.Civ.App.1998) (Thompson, J., with one judge concurring and two judges concurring in the result). As a necessary condition to an award of periodic alimony, a petitioning spouse should first establish the standard and mode of living of the parties during the marriage and the nature of the financial costs to the parties of maintaining that station in life. See, e.g., Miller v. Miller, 695 So.2d 1192, 1194 (Ala.Civ.App.1997); and Austin v. Austin, 678 So.2d 1129, 1131 (Ala.Civ.App.1996). The petitioning spouse should then establish his or her inability to achieve that same standard of living through the use of his or her own individual assets, including his or her own separate estate, the marital property received as part of any settlement or property division, and his or her own wage-earning capacity, see Miller v. Miller, supra, with the last factor taking into account the age, health, education, and work experience of the petitioning spouse as well as prevailing economic conditions, see DeShazo v. DeShazo, 582 So.2d 564, 565 (Ala.Civ.App.1991), and any rehabilitative alimony or other benefits that will assist the petitioning spouse in obtaining and maintaining gainful employment. See Treusdell v. Treusdell, 671 So.2d 699, 704 (Ala.Civ.App.1995). If the use of his or her assets and wage-earning capacity allows the petitioning spouse to routinely meet only part of the financial costs associated with maintaining the parties’ former marital standard of living, the petitioning spouse has proven a need for additional support and maintenance that is measured by that shortfall. See Scott v. Scott, 460 So.2d 1331,1332 (Ala.Civ.App.1984).

Once the financial need of the petitioning spouse is established, the trial court should consider the ability of the responding spouse to meet that need. See Herboso v. Herboso, 881 So.2d 454, 458 (Ala.Civ.App.2003). The ability to pay may be proven by showing that the responding spouse has a sufficient separate estate, following the division of the marital property, see § 30-2-51(a), Ala.Code 1975, and/or sufficient earning capacity to consistently provide the petitioning spouse with the necessary funds to enable him or her to maintain the parties’ former marital standard of living. Herboso, supra. In considering the responding spouse’s ability to pay, the trial court should "take into account all the financial obligations of the responding spouse, including those obligations created by the divorce judgment. See O’Neal v. O’Neal, 678 So.2d 161, 164 (Ala.Civ.App.1996). The trial court should also consider the impact an award of periodic alimony will have on the financial condition of the responding spouse and his or her ability to maintain the parties’ former marital lifestyle for himself or herself. Id. A responding spouse obviously has the ability to pay if the responding spouse can satisfy the entirety of the petitioning spouse’s needs without any undue economic hardship. See, e.g., MacKenzie v. MacKenzie, 486 So.2d 1289, 1292 (Ala.Civ.App.1986). In most cases, however, simply due to the fact that, after separation, former spouses rarely can live as well and as cheaply as they did together, Gates, 830 So.2d at 750, a trial court will find that the responding spouse cannot fully meet the financial needs of the petitioning spouse. Walls v. Walls, 860 So.2d 352, 358 (Ala.Civ.App.2003). In those cases, the trial court should endeavor to determine the amount the responding spouse can fairly pay on a consistent basis. See Rubert v. Rubert, 709 So.2d 1283, 1285 (Ala.Civ.App.1998).

After being satisfied that the petitioning spouse has a need for periodic alimony and that the responding spouse has some ability to meet that need, the trial court should consider the equities of the case. The length of the marriage does not determine the right to, or amount of, periodic alimony. Hatley v. Hatley, 51 So.3d 1031, 1035 (Ala.Civ.App.2010). However, the longer the parties have maintained certain living and financial arrangements, the more fair it will seem that those arrangements should be maintained beyond the divorce to the extent possible. See Edwards v. Edwards, 410 So.2d 91, 93 (Ala.Civ.App.1982). The trial court should also give due regard to the history of the marriage and the various economic and noneconomic contributions and sacrifices made by the parties during the marriage. See Hanna v. Hanna, 688 So.2d 887, 891 (Ala.Civ.App.1997). In light of those factors, the trial court should endeavor to avoid leaving the parties in an unconscionably disparate financial position. Jones v. Jones, 596 So.2d 949, 952 (Ala.Civ.App.1992). However, the trial court can consider whether the marriage, and its attendant standard of living, ended due to the greater fault of one of the parties, and, if so, the trial court can adjust the award accordingly. Yohey v. Yohey, 890 So.2d 160, 164-65 (Ala.Civ.App.2004). Lastly, the trial court should consider any and all other circumstances bearing on the fairness of its decision. See Ashbee v. Ashbee, 431 So.2d 1312, 1313-14 (Ala.Civ.App.1983).

The determination of whether the petitioning spouse has a need for periodic alimony, of whether the responding spouse has the ability to pay periodic alimony, and of whether equitable principles require adjustments to periodic alimony are all questions of fact for the trial court, Lawrence v. Lawrence, 455 So.2d 45, 46 (Ala.Civ.App.1984), with the last issue lying particularly within the discretion of the trial court. See Nolen v. Nolen, 398 So.2d 712, 713-14 (Ala.Civ.App.1981). On appeal from ore tenus proceedings, this court presumes that the trial court properly found the facts necessary to support its judgment and prudently exercised its discretion. G.G. v. R.S.G., 668 So.2d 828, 830 (Ala.Civ. App.1995). That presumption may be overcome by a showing from the appellant that substantial evidence does not support those findings of fact, see § 12-21-12(a), Ala.Code 1975, or that the trial court otherwise acted arbitrarily, unjustly, or in contravention of the law. Dees v. Dees, 390 So.2d 1060, 1064 (Ala.Civ.App.1980).

The wife argues that she established a need for financial assistance. We agree. The wife presented an exhibit at the trial on remand itemizing her monthly expenses, which amounted to $2,814.80. Those expenses included the ordinary costs of living, such as housing, utility, food, clothing, and transportation costs, but the wife also included her medical expenses of $819.80 per month, the bulk of which relate to prescription-drug costs. The wife testified at the first trial that she suffers from painful back problems, a cardiac condition, high blood pressure, a thyroid illness, attention deficit disorder, bipolar disorder, and depression. The husband doubted the extent of the wife’s health problems, referring to her as a hypochondriac, but he did not present any medical evidence disputing the wife’s need for the treatments and medications. The husband also did not dispute any of the foregoing expenses as being unreasonable or outside the parties’ former marital standard of living.

The record does not indicate that the wife maintained any separate estate from the husband. In the property-division award, the wife originally received $28,500 payable at a rate of $250 per week for 114 weeks, which terminated in November 2010. On remand, as corrected above, the wife received an additional approximately $30,000, payable in installments of $400 per month. The wife also received in the judgment the right to one-half of the net proceeds from the sale of the marital home. At the time of the trial on remand, the wife continued to live in the marital home despite the terms of the judgment, which required the marital home to be sold when the parties’ child reached age 19, which occurred on April 26, 2010. The evidence indicated that the marital home was worth between $80,000 and $110,000 and that the parties owed approximately $75,000 on a home-equity line of credit. Thus, the wife could expect to obtain less than $10,000 from the sale of the marital home. The trial court also awarded the wife all rights, title, and interest to a 2000 or 2001 Lincoln Navigator, which was inoperable at the time of the trial on remand.

When the parties married in 1990, the wife worked in a factory. She became pregnant with the parties’ child not long after the parties married and quit working for a period. The wife testified that, after she gave birth to the child, she resumed working in the factory for several years until the factory closed. The husband testified the wife worked for a much shorter period. After the factory closed, according to the wife, she worked sporadically for the husband’s business. The husband testified that she did not work for his business much at all. The wife also sold items on an Internet auction site for extra money. The wife had not been formally employed elsewhere for at least 14 years at the time of the divorce. The wife had graduated high school and had some college and business-school credits, but she has no postsecondary degree. At the original trial, the wife indicated on a CS-41 form, see Rule 32, Ala. R. Jud. Admin., that she could earn minimum wage, which now equates to roughly $1,257 per month. At the trial on remand, the wife testified that her back pain and other health problems persisted so that she could work only part time. The wife had obtained a clerical position from her brother, an hour’s drive from her home, earning $8 per hour for 24 hours per week, which the wife indicated was the limit of her earning capacity. The wife nets $769.16 per month from that employment, according to her exhibit. The husband presented no evidence at the trial on remand to contradict the wife regarding her present earning capacity.

The foregoing evidence establishes that, even with using the property awarded to her in the divorce judgment and working to her fullest capacity, the wife cannot be expected to meet all of her financial needs. By our calculations, the wife will be unable to meet approximately $1,600 of her monthly expenses without any periodic alimony.

The wife argues further that the husband has ample resources from which to meet the needs of the wife. The wife asserts that, “if [the husband] is making $1,500 a week, [a] $1,000 per month [alimony obligation] would not be excessive. ...” (Wife’s brief, p. 26.) However, as we have decided above, the trial court rejected the wife’s contention that the husband is making $1,500 per week from the business. Based on the findings made by the trial court, in 2008 the husband was earning only $276 per week from the business. The wife does not argue that the husband has the ability to pay her alimony from those earnings while also sustaining his own living conditions and paying her $400 per month for her interest in the business. The wife also does not argue that the husband is capable of earning higher wages. See Henning v. Henning, 26 So.3d 450, 456 (Ala.Civ.App.2009) (holding that ability to pay alimony is based on the ability to earn, not actual earnings). The wife further does not argue that the husband has the present ability to pay alimony to her from the marital assets he retained following the dissolution of the marriage or from his separate estate. -See Rule 28(a)(10), Ala. R.App. P. Therefore, we cannot agree that the trial court erred in failing to order the husband to pay the wife periodic alimony.

However, we agree with the wife that the trial court erred in failing to reserve the right to award periodic alimony in the future. The parties were married for 16 years, during which the wife served primarily as a mother and a homemaker. Although the husband testified that he left the wife due to her moodiness and verbal abuse, the trial court heard evidence indicating that the wife had been diagnosed with bipolar disorder and other emotional illnesses and it divorced the parties solely on the ground of incompatibility. The record does not contain evidence from which the trial court could have reasonably concluded that the wife committed such misconduct as to forever bar her from receiving periodic alimony. The evidence establishes that the wife will likely sustain a permanent need for financial assistance. Although the business is currently not earning as much as it has in the past, recessed economic conditions are subject to change and the husband may eventually be able to earn sufficient income to afford to pay the wife periodic alimony. “The trial court should reserve jurisdiction over the issue of alimony if the facts indicate that future circumstances may entitle either party to a later award of alimony.” Williams v. Williams, 905 So.2d 820, 828 (Ala.Civ.App.2004). Considering the circumstances, we reverse the judgment for the trial court to reserve the right to award periodic alimony based on changed circumstances in the future.

Conclusion

We reverse the trial court’s March 23, 2010, judgment and remand the case with directions for the trial court to correct its judgment as to the amount owed to the wife for her one-half interest in the business and to modify its judgment to reserve the right to award the wife periodic alimony in the future.

The wife’s request for an award of attorney fees on appeal is denied.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

BRYAN, J., concurs in part and concurs in the result, with writing.

BRYAN, Judge,

concurring in part and concurring in the result.

I concur with that part of the main opinion discussing business valuation, but I concur in the result as to that part of the main opinion discussing periodic alimony.

      . The factual background of this case is set forth in Shewbart v. Shewbart, 19 So.3d 223 (Ala.Civ.App.2009).

      . Norvell testified that "[o]ne of the most commonly used methods that we work with is a term we call EBITDA, which is E-B-I-T-DA, and that’s the earnings of a business before any deduction for interest, taxes, depreciation or amortization.” It appears Norvell added the depreciation claimed by the husband during each respective tax year to the net income for that tax year.

      . Norvell testified that the husband’s 2008 income information had not been included in his calculation.

      . The record from Shewbart, supra, has been incorporated into the record in this appeal.

      . We note that the trial court actually rounded up from $27,993 to derive its $28,000 award. Nothing in our opinion should be read as preventing the trial court from similarly rounding up to $30,000 on remand, if it deems it equitable to do so. The trial court also may use its discretion as to whether it will increase the monthly installment amounts or extend the installment period in order to account for the increase. We do not address the wife’s argument that the trial court erred in allowing the husband to pay her share of the value of the business in equal installments over a period of 70 months, which is raised for the first time in her reply brief. See Lloyd Noland Hosp. v. Durham, 906 So.2d 157, 173 (Ala.2005) ("It is a well-established principle of appellate review that we will not consider an issue not raised in an appellant’s initial brief, but raised only in the reply brief.”).


source: Caselaw Access Project

author: THOMPSON, Presiding Judge.

license: Public Domain

text:
    Ex parte Debra Rose DIEFENBACH. (In re Simon Andrew Weesner v. Debra Rose Diefenbach).
    2090716.
    Court of Civil Appeals of Alabama.
    Dec. 10, 2010.

      Amber Yerkey James of James Family Law Center, LLC, Huntsville, for petitioner.
    Joan-Marie Dean, Huntsville, for respondent.
   On Application for Rehearing

THOMPSON, Presiding Judge.

The opinion of October 8, 2010, is withdrawn, and the following is substituted therefor.

On June 11, 2003, the Circuit Court of the Fourth Judicial Circuit in Florida entered a judgment (hereinafter “the Florida divorce judgment”) divorcing Simon Andrew Weesner (“the father”) and Debra Rose Diefenbach (“the mother”). The Florida divorce judgment incorporated the terms of a settlement agreement reached by the parties. In pertinent part, the Florida divorce judgment awarded the mother primary physical custody of the parties’ minor child.

On November 2, 2009, the father, a resident of Limestone County, filed in the Limestone Circuit Court (hereinafter “the trial court”) a petition seeking to domesticate the Florida divorce judgment and seeking to modify the custody award in that judgment. In his petition, the father alleged that neither party remained in Florida, that the mother had lived in three different states since the parties’ 2003 divorce, and that the mother and the child had relocated to Minnesota from Illinois in September 2009. As a basis for his claim seeking a modification of child custody, the father alleged that the mother was in an abusive relationship and that the child had witnessed incidents of domestic abuse.

On January 30, 2010, the mother responded by moving to dismiss the father’s petition. In that motion to dismiss, the mother argued that the trial court could not properly exercise personal jurisdiction over her and that it lacked subject-matter jurisdiction over the father’s custody-modification claim. In her motion to dismiss, the mother asserted that she and the parties’ minor child do not currently live, and have never lived, in Alabama.

The trial court conducted a hearing on the mother’s motion to dismiss. On March 26, 2010, the trial court entered an order denying that motion. The mother timely filed a petition for a writ of mandamus in this court.

The denial of a motion to dismiss for lack of jurisdiction is reviewable upon a timely filed petition for a writ of mandamus. Ex parte Flint Constr. Co., 775 So.2d 805, 808 (Ala.2000); Drummond Co. v. Alabama Dep’t of Transp., 937 So.2d 56, 57 (Ala.2006). With regard to an appellate court’s consideration of a petition for a writ of mandamus, our supreme court has stated:

“This Court has consistently held that the writ of mandamus is an extraordinary and drastic writ and that a party seeking such a writ must meet certain criteria. We will issue the writ of mandamus only when (1) the petitioner has a clear legal right to the relief sought; (2) the respondent has an imperative duty to perform and has refused to do so; (3) the petitioner has no other adequate remedy; and (4) this Court’s jurisdiction is properly invoked. Ex parte Mercury Fin. Corp., 715 So.2d 196, 198 (Ala. 1997). Because mandamus is an extraordinary remedy, the standard by which this Court reviews a petition for the writ of mandamus is to determine whether the trial court has clearly abused its discretion. See Ex parte Rudolph, 515 So.2d 704, 706 (Ala.1987).”

Ex parte Flint Constr. Co., 775 So.2d at 808. In discussing the review of a denial of a motion to dismiss for lack of subject-matter jurisdiction, the court further explained:

“ ‘In Newman v. Savas, 878 So.2d 1147 (Ala.2003), this Court set out the standard of review of a ruling on a motion to dismiss for lack of subject-matter jurisdiction:
“ ‘ “A ruling on a motion to dismiss is reviewed without a presumption of correctness. Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993). This Court must accept the allegations of the complaint as true. Creola Land Dev., Inc. v. Bentbrooke Housing, L.L.C., 828 So.2d 285, 288 (Ala.2002). Furthermore, in reviewing a ruling on a motion to dismiss we will not consider whether the pleader will ultimately prevail but whether the pleader may possibly prevail. Nance, 622 So.2d at 299.”
“ ‘878 So.2d at 1148-49.’ ”

Ex parte Alabama Dep’t of Transp., 978 So.2d 17, 21 (Ala.2007) (quoting Pontius v. State Farm Mut. Auto. Ins. Co., 915 So.2d 557, 563 (Ala.2005)). Similarly,

“ ‘ “[i]n considering a Rule 12(b)(2), Ala. R. Civ. P., motion to dismiss for want of personal jurisdiction, a court must consider as true the allegations of the plaintiffs complaint not controverted by the defendant’s affidavits, Robinson v. Giarmarco & Bill, P.C., 74 F.3d 253 (11th Cir.1996), and Cable/Home Communication Corp. v. Network Productions, Inc., 902 F.2d 829 (11th Cir.1990), and ‘where the plaintiffs complaint and the defendant’s affidavits conflict, the ... court must construe all reasonable inferences in favor of the plaintiff.’ Robinson, 74 F.3d at 255 (quoting Madam v. Hall, 916 F.2d 1510, 1514 (11th Cir.1990)). ‘For purposes of this appeal [on the issue of in personam jurisdiction] the facts as alleged by the ... plaintiff will be considered in a light most favorable to him [or her].’ Duke v. Young, 496 So.2d 87, 38 (Ala.1986).”
‘Ex parte McInnis, 820 So.2d [795] at 798 [ (Ala.2001) ].’ ”

Ex parte Barton, 976 So.2d 438, 442-43 (Ala.2007) (quoting Ex parte Puedo, 923 So.2d 1069, 1072 (Ala.2005)).

Alabama has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), codified at § 30-3B-101 et seq., Ala.Code 1975, to govern child-custody disputes involving, or potentially involving, more than one jurisdiction. With regard to modifying a custody judgment entered by a court of another state, Alabama’s version of the UCCJEA provides:

“Except as otherwise provided in Section 30-3B-204,[] a court of this state may not modify a child custody determination made by a court of another state unless a court of this state has jurisdiction to make an initial determination under Section 30-3B-201(a)(1) or (2) and:
“(1) The court of the other state determines it no longer has continuing, exclusive jurisdiction under Section 30-3B-202 or that a court of this state would be a more convenient forum under Section 30-3B-207; or
“(2) A court of this state or a court of the other state determines that the child, the child’s parents, and any other person acting as a parent do not presently reside in the other state.”

§ 30-3B-203, Ala.Code 1975.

In this case, there is no indication in the materials submitted to this court that the Florida court has declined to exercise its continuing jurisdiction. Accordingly, in order to have jurisdiction to modify the custody provisions of the Florida divorce judgment, the trial court would have to properly conclude that it had jurisdiction to make an initial custody determination pursuant to subsections (1) or (2) of § 30-3B-201 and that the parties and the child no longer reside in Florida. § 30-3B-203. See also Official Comment to § 30-3B-203, Ala.Code 1975 (“[A] court of the modification state can determine that all parties have moved away from the original state. The court of the modification state must have jurisdiction under the standards of Section 201.”).

The relevant portions of § 30-3B-201 provide:

“(a) Except as otherwise provided in Section 30-3B-204, a court of this state has jurisdiction to make an initial child custody determination only if:
“(1) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;
“(2) A court of another state does not have jurisdiction under subdivision
(1), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under Section 30-3B-207 or 30-3B-208, and:
“a. The child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and
“b. Substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships.”

In this case, the parties do not dispute that they have moved from Florida. There is no contention that Alabama is the child’s home state or that it was the child’s home state within six months of the father’s initiation of the modification proceeding. Therefore, the trial court would not have had jurisdiction to make an initial custody determination under § 30-3B-201(a)(1). Thus, the trial court cannot base its jurisdiction for modifying custody pursuant to § 30-3B-203 on subsection (a)(1) of § 30-3B-201.

Section 30-3B-201 (a)(2) specifies, among other things, that, for the modifying court to properly exercise jurisdiction, a court of another state must not have jurisdiction pursuant to § 30-3B-201(a)(1) or the court in the child’s home state must have declined to exercise jurisdiction. § 30-3B-201(a)(2). There is no allegation or evidence in this matter indicating that the Florida court or a court of any other jurisdiction has declined to exercise jurisdiction over a custody action pertaining to the child. Accordingly, in order to determine whether the trial court could exercise jurisdiction under § 30-3B-201(a)(2) so as to meet the requirements of § 30-3B-203, we must examine whether a court of another jurisdiction has jurisdiction as the child’s home state under § 30-3B-201(a)(1).

The materials submitted to this court demonstrate that the mother and the child moved to Minnesota in September 2009, shortly before the father filed his November 2009 custody-modification action in the trial court. Thus, it is clear that the child had not resided in Minnesota for six months before the initiation of this action in November 2009 and, therefore, that a Minnesota court would not be a forum that could exercise jurisdiction over a custody dispute pursuant to § 30-3B-201(a)(1). See § 30-3B-201(a)(2).

Thus, under the facts of this case, the trial court may exercise jurisdiction to modify the custody provisions of the Florida divorce judgment if “[a] court of another state does not have jurisdiction under” § 30-3B-201(a)(1). § 30-3B-201(a)(2). The materials submitted to this court indicate that the mother and the child had moved to Minnesota from Illinois. However, nothing in those materials suggests for what length of time the mother and the child had resided in Illinois. All doubts on the sufficiency of the allegations in the petition must be resolved in favor of the father in reviewing the denial of the mother’s motion to dismiss. Ex parte Alabama Dep’t of Tramp., supra. The burden is on the mother, as the party seeking mandamus relief, to demonstrate her right to relief. Ex parte Flint Constr. Co., supra. Given the materials submitted in this matter, this court is unable to determine whether Illinois, or another state, has jurisdiction pursuant to subsection (a)(1) of § 30-3B-201. Accordingly, we must conclude that the mother has not demonstrated that the trial court would not have jurisdiction pursuant to § 30-3B-201(a)(2) to consider an initial custody determination or, therefore, that the trial court lacked jurisdiction to modify the Florida judgment under the UCCJEA. See § 30-3B-203, Ala.Code 1975 (in order to modify a foreign custody judgment, the trial court must, among other things, have jurisdiction to make an initial custody determination under subsections (1) or (2) of § 30-3B-201(a)). The mother has failed to meet her burden of demonstrating a clear legal right to relief with regard to her argument that the trial court lacked subject-matter jurisdiction under the UCCJEA to modify the Florida divorce judgment. Ex parte Flint Constr. Co., supra; Ex parte Duck Boo Int'l Co., 985 So.2d 900, 906 (Ala. 2007).

As an alternate basis for seeking relief pursuant to her petition for a writ of mandamus, the mother argues that the trial court could not properly consider the father’s custody-modification claim because, she contends, the trial court did not have personal jurisdiction over her. In response to that argument, the father cites Bandor v. Bandor, 636 So.2d 1254, 1255-56 (Ala.Civ.App.1994), in which this court held that, under former § 30-3-23, Ala. Code 1975, a part of the former Uniform Child Custody Jurisdiction Act (“UC-CJA”), formerly codified at § 30-3-20 et seq., Ala.Code 1975, the predecessor to the UCCJEA, the trial court could exercise home-state jurisdiction over a child-custody dispute despite the fact that it lacked in personam jurisdiction over one of the parents.

In 1999, after the decision in Bandor v. Bandor, supra, the Alabama Legislature repealed the UCCJA and reenacted a slightly modified version, the UCCJEA, under Chapter 3B of Title 30, Ala.Code 1975. See Act. No. 99-438, Ala. Acts 1999. Alabama’s version of the UCCJEA took effect on January 1, 2000. As the father points out, the Official Comment to § 30-3B-201 of Alabama’s version of the UC-CJEA states that, pursuant to the provisions of subsections (b) and (c) of that section, it is not necessary for a trial court to have personal jurisdiction over a parent in a custody proceeding under the UC-CJEA.

However, the Alabama Comment to § 30-3B-201, which addresses the specifics of the Alabama Legislature’s enactment of the Model Uniform Child Custody Jurisdiction and Enforcement Act (“the Model Act”), contradicts the Official Comment with regard to the exercise of in personam jurisdiction. The Alabama Comment indicates that, contrary to the general provisions of the Official Comment and the holding in Bandor v. Bandor, supra, our legislature intended that Alabama require in personam jurisdiction over the parties to an action filed pursuant to Alabama’s version of the UCCJEA. Subsection (c) of § 201 of the Model Act provides that “[plhysical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child-custody determination.” (Emphasis added.) In enacting the UCCJEA, the Alabama Legislature modified subsection (c) of § 201 of the Model Act; the Alabama version of that subsection provides that “[plhysical presence of a child is not necessary or sufficient to make a child custody determination.” § 30-3B-201(c). Thus, Alabama’s version of the UCCJEA omits the reference to personal jurisdiction contained in § 201(c) of the Model Act. With regard to that omission, the Alabama Comment to § 30-3B-201 explains:

“This section is similar to Section 201 of the [Model] Act except that subsection (c) deletes the language ‘or personal jurisdiction over a party or.’ The effect of this is to continue Alabama’s long standing 'practice of requiring personal jurisdiction over a party in a child custody determination. Ex parte Dean, 447 So.2d 733 (Ala.1984). Dean follows the plurality in May v. Anderson, 345 U.S. 528 (1953) which decided that a child custody determination is an in per-sonam proceeding that requires personal jurisdiction over the effected parties.
“May involved a custody dispute between the mother and father who lived in Wisconsin with their children. After marital difficulties occurred, the mother moved to Ohio with the children. Shortly thereafter the father filed for divorce in Wisconsin and was awarded custody of the children. Prior to the Wisconsin divorce, the mother was served in Ohio, although no long arm statute in Wisconsin authorized that type of service. The enforceability of the custody provision of the Wisconsin decree was challenged when the mother refused to return the children to the father after they visited with her in Ohio. The Ohio court ruled that it was obligated by full faith and credit to accept the Wisconsin decree as binding on the mother. The Supreme Court held in May that since the mother was neither domiciled, a resident nor present in the state where the decree was issued and personal jurisdiction was not obtained over her the judgment was not entitled to extraterritorial effect. The court reasoned that' the mother’s right to custody is ‘a personal right entitled to at least as much protection as her right to alimony.’ Id. at 534.
“In contrast to Alabama’s interpretation of May, many states as well as the drafters of the UCCJA and the UC-CJEA have chosen to rely on Justice Frankfurter’s concurring opinion in May. In his concurrence, Frankfurter opined that May did not hold that the Wisconsin decree violated the due process clause rather that the majority’s opinion was granted exclusively on the full faith and credit clause rather than due process. However, some view this position to be inconsistent with the cases cited by Justice Barton, who speaking for majority, cited cases which had rendered void custody decrees that were decided without personal service or the appearance of the noncustodial parent. Rhonda Wasserman, Parents, Partners and Personal Jurisdiction, 1995 U. Ill. Rev. 813, 878. Rather, those cases bolster the position that the majority did intend to hold that personal jurisdiction was necessary.
“This reasoning is consistent with a later decision of the Supreme Court, Kulko v. Superior Court of California, 436 U.S. 84 (1978). Kulko presented the issue of whether in an action for child support a state could exercise in persona jurisdiction over a nonresident, non domiciliary parent of a minor child who was domiciled within that state. Kulko held that the exercise of such jurisdiction would violate the due process clause of the fourth amendment. In Kulko the court followed the reasoning of International Shoe, 326 U.S. 310 (1945), and determined that personal jurisdiction was necessary over the party in an action for child support.
“Accordingly, Alabama’s position -with regard to personam jurisdiction in custody cases is consistent with May and in accord with Kulko. Moreover, by requiring personal jurisdiction in both child custody and child support issues, Alabama’s UCCJEA will not create the potential jurisdictional anomaly created by the ineongruent positions regarding personal jurisdiction under the UC-CJEA and the Uniform Interstate Family Support Act (UIFSA). Ergo, creating a situation in which a court, not having personal jurisdiction over a party may resolve custody issues while being precluded from resolving child support issues.”

(Emphasis added.)

Accordingly, we agree with the mother that the trial court must have personal jurisdiction over her in order to enter a valid judgment on the father’s custody-modification claim. See Alabama Comment, § 30-3B-201, Ala.Code 1975; and Ex parte Dean, 447 So.2d 733, 735 (Ala. 1984) (“A child custody determination is an in personam proceeding requiring in per-sonam jurisdiction over the affected parties.”); see also Coleman v. Coleman, 864 So.2d 371, 374 (Ala.Civ.App.2003) (“[A] potential judgment awarding custody and child support necessarily fixes upon a [parent] a personal obligation for the care and support of the minor children and requires in personam jurisdiction over the [parent].” (citing May v. Anderson, 345 U.S. 528, 534, 73 S.Ct. 840, 97 L.Ed. 1221 (1953), and Lightell v. Lightell, 394 So.2d 41, 42-43 (Ala.Civ.App.1981))).

Jurisdiction over a nonresident defendant may be obtained through Alabama’s long-arm rule, Rule 4.2, Ala. R. Civ. P., which governs service of process on out-of-state residents; that rule provides, in pertinent part:

“(b) Basis for Out-of-State Service. An appropriate basis exists for service of process outside of this state upon a person or entity in any action in this state when the person or entity has such contacts with this state that the prosecution of the action against the person or entity in this state is not inconsistent with the constitution of this state or the Constitution of the United States.... ”

Thus, the trial court could validly exercise personal jurisdiction over the mother only if she had sufficient minimum contacts with this state. Rule 4.2, Ala. R. Civ. P.; Ex parte Excelsior Fin., Inc., 42 So.3d 96, 100-01 (Ala.2010); and Ex parte Reindel, 963 So.2d 614, 617 (Ala.2007). The father, as the plaintiff in the action pending before the trial court, had the burden of demonstrating that the trial court had personal jurisdiction over the mother. Ex parte Excelsior Fin., Inc., 42 So.3d at 103 (citing Ex parte Covington Pike Dodge, Inc., 904 So.2d 226 (Ala.2004), and J.C. Duke & Assocs. Gen. Contractors, Inc. v. West, 991 So.2d 194, 196 (Ala.2008)).

In his petition to modify custody filed in the trial court, the father alleged that, since the entry of the Florida divorce judgment, the mother had moved from Florida and lived in North Carolina and Illinois with the child and that, at the time he filed his petition, the mother and the child had recently moved from Illinois to Minnesota. In her motion to dismiss, the mother agreed that she had resided in those other states, and she maintained that she was not and had not been a resident of Alabama.

In Coleman v. Coleman, supra, the mother sought a divorce from the father and an award of custody of the parties’ two minor children. The father moved to dismiss the mother’s complaint, arguing that, because he was a resident of Mississippi, the Alabama trial court lacked personal jurisdiction over him. The parties had been married in Alabama but had not lived here, and the father had exercised occasional visitation with the children in Alabama. The Alabama trial court denied the motion to dismiss, and this court treated the father’s appeal as a petition for a writ of mandamus and granted the petition. In doing so, this court stated:

“Two criteria essential for a party to establish personal jurisdiction over a defendant through the ‘minimum-contacts’ provision of [former] Rule 4.2[] ... are (1) that the maintenance of the action must not offend the ‘ “traditional notions of fair play and substantial justice,”’ International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940)), and (2) that the ‘ “quality and nature”’ of the defendant’s activities in this state must have been such that it is ‘ “reasonable” ’ and ‘ “fair” ’ to require him to defend here. Kulko v. Superior Court of California, 436 U.S. 84, 92, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978) (quoting International Shoe, 326 U.S. at 316-17, 319, 66 S.Ct. 154).”

Coleman v. Coleman, 864 So.2d at 374. This court concluded that the evidence did not demonstrate that it was “ ‘reasonable and fair’ ” to require the father to litigate in Alabama. Coleman v. Coleman, 864 So.2d at 375.

In Beale v. Haire, 812 So.2d 356 (Ala. Civ.App.2001), the mother sought to domesticate a Maine divorce judgment and to enforce or modify portions of that judgment. The father moved to dismiss the mother’s action, arguing, among other things, that the Alabama trial court lacked personal jurisdiction over him. The Alabama trial court granted the motion to dismiss, and the mother appealed, arguing that under former Rule 4.2, Ala. R. Civ. P., the father had sufficient minimum contacts with Alabama. This court rejected the mother’s argument, holding that the father’s visiting the children in Alabama and, pursuant to the terms of the Maine judgment, submitting to a family psychological exam here did not constitute sufficient minimum contacts under Rule 4.2 so as to vest in personam jurisdiction in the Alabama trial court. Beale v. Haire, 812 So.2d at 358.

In this case, there is no indication that the mother had any connection with Alabama that would make it reasonable and fair to require her to litigate in Alabama or that requiring her to defend the father’s custody action here would not offend “ ‘ “traditional notions of fair play and substantial justice.” ’ ” Coleman v. Coleman, 864 So.2d at 374. Even construing all doubts in favor of the father’s petition, see Ex parte Barton, supra, we cannot conclude that the trial court could properly exercise personal jurisdiction over the mother in this matter. The father, who had the burden of demonstrating that the trial court could properly exercise personal jurisdiction over the mother, see Ex parte Excelsior Financial, Inc., supra, alleged only that the mother had moved from Florida and had lived in North Carolina, Illinois, and Minnesota. The father’s petition contains no allegation pertaining to any connection the mother might have to Alabama.

On application for rehearing, the father argues that, although he had the burden of demonstrating that the trial court had jurisdiction over the mother, as the petitioner in this court, the mother has the burden of demonstrating that he had not carried that burden. The father contends that because the mother failed to submit to this court a transcript from the hearing on the mother’s motion to dismiss, the mother has failed to carry that burden. The father cites cases for the proposition that evidence not contained in the record or presented to an appellate court is presumed sufficient to support the trial court’s judgment. See Greer v. Greer, 624 So.2d 1076, 1077 (Ala.Civ.App.1993) (“If the record does not disclose the facts upon which the asserted error is based, the error may not be considered on appeal.”), and Ex parte City of Birmingham, 757 So.2d 389, 392 (Ala.1999) (when oral testimony is not before the appellate court, the testimony is presumed sufficient to support the trial court’s judgment). In asserting this argument, however, the father fails to recognize that, in this case, nothing in the matters submitted to this court indicates that the trial court received ore tenus evidence. In fact, the trial court’s order denying the mother’s motion to dismiss states that it heard only the arguments of counsel. Thus, nothing before this court indicates that the trial court heard evidence that was not presented to this court.

The mother, as the party seeking the writ of mandamus directing the trial court to dismiss the action pending against her, has the burden of demonstrating a clear legal right to the relief requested. Ex parte Duck Boo Int’l Co., supra. Given the foregoing, we conclude that the mother has demonstrated that the trial court exceeded its discretion in determining that it had personal jurisdiction over her. Ex parte Flint Constr. Co., supra. Accordingly, we grant the mother’s petition and issue the writ of mandamus directing the trial court to enter an order dismissing the father’s petition.

APPLICATION FOR REHEARING OVERRULED; OPINION OF OCTOBER 8, 2010, WITHDRAWN; OPINION SUBSTITUTED; PETITION GRANTED; WRIT ISSUED.

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

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

      . Section 30-3B-204, Ala.Code 1975, governs situations allowing a court to exercise temporary emergency jurisdiction over custody of a child. There has been no allegation that this case involves such an emergency situation, and, therefore, we do not discuss § 30-3B-204.

      . Again, jurisdiction under § 30-3B-201(a)(l) or (2) is a prerequisite for jurisdiction to modify a child-custody judgment pursuant to § 30-3B-203.

      . On application for rehearing, the father points out that comments to statutes are not, in themselves, law. See Simmons v. Clemco Indus., 368 So.2d 509, 514 (Ala.1979) ("Though the official comments are a valuable aid in construction, they have not been enacted by the legislature and are not necessarily representative of legislative intent."); see also Pinigis v. Regions Bank, 977 So.2d 446, 456 (Ala.2007) (same); and IMED Corp. v. Systems Eng'g Assocs. Corp., 602 So.2d 344, 348 (Ala.1992) (same). In each of those cases, the comments to the statutes being discussed were held not to be controlling because they differed in meaning from the clear language of the statutes. In this case, however, tire Alabama Comment to § 30-3B-201 is consistent with and explains the Alabama Legislature's decision to modify Alabama’s UCCJEA to omit the reference to personal jurisdiction. In reaching its holding, this court has relied on the language of § 30-3B-201, rather than on the comment to that statute.

      . In 2004, Rule 4.2, Ala. R. Civ. P., was rewritten. The Committee Comments to Amendment to Rule 4.2 Effective August 1, 2004, explain:
      "This rule has been completely rewritten and now combines the provisions for territorial limits of service. New subdivision 4.2(a) was formerly Rule 4(b). Subdivision 4.2(b) is taken from former 4.2(a)(1)(B). New 4.2(b) is, in effect, Alabama’s 'long-arm statute.’ The structure of former 4.2 included a ‘laundry list' of types of conduct that would subject an out-of-state defendant to personal jurisdiction in Alabama, as well as containing the ‘catchall’ clause now contained in new 4.2(b). Because the ‘catchall’ clause has consistently been interpreted to go to the full extent of federal due process, see, for example, Martin v. Robbins, 628 So.2d 614, 617 (Ala.1993), it is no longer necessary to retain the 'laundry list’ in the text of the Rule.”

      . We note that, before this court, the father contended only that personal jurisdiction over the mother was not required. However, as already discussed, we have rejected that argument.


author: THOMAS, Judge.

text:
    STEIN MART, INC. v. Pamlin DELASHAW.
    2090713.
    Court of Civil Appeals of Alabama.
    Dec. 10, 2010.

      Melissa Kelly Helton, Huntsville, for appellant.
    J. Zach Higgs, Jr., and Robert D. Lee of Higgs & Emerson, Huntsville, for appel-lee.
   THOMAS, Judge.

In March 2006, Pamlin Delashaw was injured in the line and scope of her employment with Stein Mart, Inc. Delashaw sued Stein Mart, seeking workers’ compensation benefits. After a trial, the trial court concluded that Delashaw had suffered a permanent partial disability to her body as a whole and an 85% loss of earning capacity as a result of her injury and awarded workers’ compensation benefits accordingly. Stein Mart appeals that judgment.

Delashaw was employed by Stein Mart as a manager of the men’s and accessories departments in one of Stein Mart’s Huntsville-area stores. On March 6, 2006, while she and some coworkers were attempting to move the base of a display, the base fell on her right foot, shattering a portion of her big toe and her second toe. Delashaw also suffered lacerations in both toenail beds. Delashaw was briefly treated in the emergency room, where her injured foot was bandaged and she was given narcotic pain medication. At the direction of her supervisor, Delashaw saw Dr. Milton Sterling, an orthopedic surgeon, the following day.

Dr. Sterling removed Delashaw’s toenail, wrapped the injured foot, and placed her foot in a boot. He also prescribed narcotic pain medication. According to Dr. Sterling’s treatment notes, Delashaw was expected to remain in the boot for five to seven weeks. Dr. Sterling’s April 2006 notes indicate that Delashaw reported improvement in her pain level. However, on May 5, 2006, according to Dr. Sterling’s notes, Delashaw reported shooting pains in her big toe and reported to Dr. Sterling that her toe was now the most painful it had been since her initial injury. Dr. Sterling indicated in his notes that he “believe[d] [that Delashaw’s injury] was starting to develop some hypersensitivity from lacerated nerves as [they] try to regenerate” and that this might resolve in days or weeks. However, Dr. Sterling’s May 15, 2006, notes reflect that, although Delashaw reported a “tremendous” decrease in the shooting pains, she continued to suffer what Dr. Sterling characterized as “discomfort.” However, on that same date, Dr. Sterling referred Delashaw to Dr. Mark Murphy for pain-management treatment.

Only Dr. Sterling’s notes are part of the record; he did not testify at trial or via deposition. Dr. Sterling’s June 14, 2006, notes indicate that he believed that Dela-shaw was trying to get back to work too quickly after her injury. His notes also reflect his opinion that Delashaw’s pain and residual swelling would likely last at least one year, or until April 2007; however, Dr. Sterling also noted that she may always have pain or nerve issues from the injury. Delashaw saw Dr. Sterling sporadically after she was referred to Dr. Murphy, most notably in April 2007 when she complained of gradually increasing pain in her right foot, which Dr. Sterling diagnosed as arthritis, and in November and December 2007, when Dr. Sterling diagnosed her with neuralgia due to nerve compression in her right foot and determined that it would slowly resolve itself. Delashaw’s November 2007 visit to Dr. Sterling was precipitated by a fall she had while getting up from a seated position on her couch; Dr. Sterling’s notes indicate that the neuralgia had resulted in “minimal mild muscle strength loss.”

In a January 27, 2009, letter to Dela-shaw’s attorney, Dr. Sterling provided a maximum-medical-improvement date of January 1, 2008, for Delashaw. He also noted that she had “ongoing muscle weakness and nerve damage.” He restricted her from standing for more than three hours.

Dr. Murphy treated Delashaw from June 2006 to the time of the March 2010 trial. He testified in his deposition, which was admitted as an exhibit at trial, that Delashaw had been consistent in her complaints that each month her pain averaged about a 5 or a 6 on a 10-point scale. A person suffering around a five- or six-point pain, said Dr. Murphy, was suffering from moderately severe pain and would need to take pain medication to alleviate some of the discomfort. He explained that Dela-shaw reported that, when she was not using pain medication, her pain was about a 7 or 8 on the 10-point scale but that use of prescribed narcotic pain medication could reduce her pain, at best, to around a 2 or 3 on the 10-point scale. Notably, Dr. Murphy testified that the narcotic pain medication that Delashaw was prescribed would not provide prolonged relief and would last for no more than three or four hours; he further explained that the medication was intended only to assist Dela-shaw in being more functional and was not intended to completely alleviate the pain from which she was suffering.

Dr. Murphy testified that Delashaw suffered from complex regional pain syndrome, which, he said, is a form of nerve damage resulting from extensive soft-tissue damage. He also noted that Dela-shaw’s pain was also related to routine degenerative joint disease resulting from her injury. Both of those causes, explained Dr. Murphy, combined to cause Delashaw to suffer pain.

Dr. Murphy also testified that, at her first appointment with him in June 2006, Delashaw told him that she had recently started suffering back pain. According to Dr. Murphy, he noted in his medical records that Delashaw was suffering from “aggravated mechanical low back pain secondary to ambulation difficulties.” He testified that he related Delashaw’s back pain to her foot injury. He explained that De-lashaw’s walking in such a manner as to protect her injured right foot would aggravate any preexisting lumbar degenerative disk disease, which Dr. Murphy appeared to assume Delashaw, like most people over 50, had started to develop.

After her injury, Delashaw did not return to work at Stein Mart. Instead, she took a similar position as a manager of the men’s department at a Dillard’s department store in Decatur in July 2006, and then, for a few months, she served as a visual specialist at a Dillard’s store in Huntsville. As a visual specialist, Dela-shaw explained, she would dress mannequins, be sure the displays were properly arranged according to Dillard’s policy, and work to be sure that the entire store was pleasing to the customer’s eye. Delashaw did not enjoy the visual-specialist position and did not perform to management’s expectations, so Delashaw returned to work at the Decatur Dillard’s store as a retail-sales clerk in the men’s department. De-lashaw worked in the Decatur Dillard’s store except for the four to five months that she worked in the Huntsville store as a visual specialist.

Delashaw testified that management at Dillard’s was aware of her condition when she took the position offered her in July 2006. She said that she was permitted to take breaks and sit as needed while she was employed at Dillard’s. According to Delashaw, she was required to stand and to walk during a large portion of her workday at Dillard’s, which, she said, she was able to do only because she used narcotic pain medication. Although Delashaw had worked a 40-hour week even as recently as the 2009 Christmas season, Delashaw testified that she had requested that her hours be reduced somewhat because she could not manage to work a 40-hour week with her pain. At the time of trial, Dela-shaw said, she was working 32 to 35 hours per week.

Delashaw further explained that her pay had been reduced during the time she had worked for Dillard’s. At the time of trial, Delashaw testified, she was earning $13.50 per hour. However, she said that her pay would be reduced in April to $12.51 per hour. According to Delashaw, her pay was connected to her “sales per hour” (“SPH”) quota and that if one did not meet the SPH quota, one’s pay was reduced. Delashaw also said that, after “so many” pay cuts, Dillard’s would “let you go”; De-lashaw did not specify the number of pay cuts Dillard’s would permit.

Dr. Murphy was questioned in his deposition whether Delashaw’s work activities — walking and standing during her workday — “independently contribute^] to and aggravate^] her foot injury.” Dr. Murphy answered in the affirmative, explaining that Delashaw’s work activities would contribute to and aggravate her foot injury and the pain associated with it. He further explained that, “[i]f she has a bad foot, bad leg and she chooses to work then all of these things would work together to aggravate her complaints and necessitate her taking additional pain medications.” Dr. Murphy also explained that Delashaw’s back pain was related to the mechanical stress on her back caused by her foot injury and that walking and standing at work would cause her back pain to increase.

Our review of this case is governed by the Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975, which states, in pertinent part: “In reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence.” Ala. Code 1975, § 25-5-81(e)(2). Therefore, this court “will view the facts in the light most favorable to the findings of the trial court.” Whitsett v. BAMSI, Inc., 652 So.2d 287, 290 (Ala.Civ.App.1994), overruled on other grounds, Ex parte Trinity Indus., Inc., 680 So.2d 262, 269 (Ala.1996). Further, the trial court’s finding of fact is supported by substantial evidence if it is “supported by ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ ” Ex parte Trinity Indus., 680 So.2d at 269 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989), and citing § 12-21-12(d), Ala.Code 1975). Our review of legal issues is without a presumption of correctness. Ala.Code 1975, § 25-5-81(e)(1); see also Ex parte Trinity Indus., 680 So.2d at 268.

As noted above, the trial court determined that Delashaw had suffered an injury to the body as a whole and awarded permanent-partial-disability benefits based on Delashaw’s vocational disability. Stein Mart appeals, arguing first that Delashaw’s initial injury was aggravated by her work at Dillard’s, thus making Dillard’s and not Stein Mart responsible for Delashaw’s workers’ compensation benefits based on the application of the last-injurious-exposure rule. See Kohler Co. v. Miller, 921 So.2d 436 (Ala.Civ.App.2005) (applying the last-injurious-exposure rule to successive employers to determine which employer should bear responsibility for the employee’s disability). Secondly, Stein Mart argues that Delashaw suffered an injury to a scheduled member and, therefore, that the trial court erred in not confining Delashaw’s award of benefits to the amount specified in the schedule for permanent partial disability provided in Ala. Code 1975, § 25-5-57(a)(3).

We will first address whether, as Stein Mart contends, the trial court erred by determining that it and not Dillard’s is the employer responsible for the payment of workers’ compensation benefits to Dela-shaw. Stein Mart argues that the last-injurious-exposure rule applies to this case and that, based on the application of that rule, Dillard’s is the employer responsible for Delashaw’s disability.

“ ‘Under the last-injurious-exposure rule, the carrier covering the risk at the time of the most recent compensable injury bearing a causal relation to the disability bears the responsibility to make the required workers’ compensation payments. “The characterization of the second injury as a new injury, an aggravation of a prior injury, or a recurrence of an old injury determines which insurer is liable.” ’ ”

Hooker Constr., Inc. v. Walker, 825 So.2d 838, 845 (Ala.Civ.App.2001) (quoting Ex parte Pike County Comm’n, 740 So.2d 1080, 1083 (Ala.1999)) (internal citations omitted in Walker)-, see also Kohler Co., 921 So.2d at 444-45 (Ala.Civ.App.2005) (applying the last-injurious-exposure rule to successive employers as opposed to insurance carriers). Because the terms “aggravation” and “recurrence” themselves are not self-explanatory, our cases have endeavored to clarify the difference between the two.

“A court finds a recurrence when ‘the second [injury] does not contribute even slightly to the causation of the [disability].’ 4 A. Larson, The Law of Workmen’s Compensation, § 95.23 at 17-142 (1989). ‘[T]his group also includes the kind of case in which a worker has suffered a back strain, followed by a period of work with continuing symptoms indicating that the original condition persists, and culminating in a second period of disability precipitated by some lift or exertion.’ 4 A. Larson, § 95.23 at 17-152. A court finds an ‘aggravation of an injury’ when the ‘second [injury] contributed independently to the final disability.’ 4 A. Larson, § 95.22 at 17-141.”

United States Fid. & Guar. Co. v. Stepp, 642 So.2d 712, 715 (Ala.Civ.App.1994).

As would be expected, Stein Mart makes much of Dr. Murphy’s testimony that Delashaw’s work activities at Dillard’s “independently contribute[d] to and aggravated” Delashaw’s foot and back injuries. However, a physician’s statement that an activity “aggravates” an injury or condition is not equivalent to a legal determination that a particular activity has “contributed independently to the final disability” for purposes of the last-injurious-exposure rule. As explained above, “aggravation” in the context of the last-injurious-exposure rule has a specific meaning and relates to whether the employee’s second accident or later activity independently contributed to the disability from which the employee claims to suffer.

The evidence at trial indicated that Delashaw has suffered chronic pain while standing or walking since her injury in March 2006. Delashaw has been diagnosed with complex regional pain syndrome resulting from the soft-tissue damage arising from the crush injury she received in March 2006; she has also been diagnosed with arthritis in that same foot. Dr. Murphy’s records indicate that Delashaw has consistently reported that her pain, when untreated by medication, averages around 7 or 8 on a 10-point scale. Although narcotic pain medication often reduced her pain to a two or three on the scale, nothing in the record suggests that Delashaw ever recovered from her March 2006 injury to a point at which she could function without the use of narcotic pain medication. Dr. Murphy testified clearly that the narcotic pain medication was not intended to eradicate Delashaw’s pain and that the medication would only enhance Delashaw’s ability to function.

The evidence in the present case is akin to the evidence in Kohler Co., in which the employee’s pain from her carpal tunnel syndrome was generally at a constant baseline level that increased when she went to work in a position requiring repetitive use of her hands; when the employee ceased the repetitive use of her hands, her pain subsided to the baseline level. Kohler Co., 921 So.2d at 445. The evidence in Kohler Co. did not demonstrate that the employee suffered any new injury or that she had increased her disability as a result of an aggravation of her original injuries. Id. In contrast, the evidence in Kohler Co. indicated that the employee suffered “a recurrence of the earlier symptoms of the [original] injuries.” Id. Thus, this court affirmed the trial court’s determination that the employee’s subsequent employer was not required to assume responsibility for the employee’s workers’ compensation benefits. Id.; see also Hokes Bluff Welding & Fabrication v. Cox, 33 So.3d 592, 601 (Ala.Civ.App.2008) (reversing the trial court’s determination that the employee sustained an aggravation of an earlier injury or a new injury and instead concluding that the employee suffered a recurrent lower-back injury based on evidence that the employee’s pain had increased after a second accident but that he “described the same pain-distribution pattern as before the [second] accident”).

Based on our review of the record, the trial court had before it substantial evidence indicating that Delashaw suffered from continuing pain from the date of her injury until the date of trial. Nothing in the evidence supports a conclusion that Delashaw suffered a new injury while working at Dillard’s or that she aggravated her foot injury while performing her work duties at Dillard’s. Thus, we conclude that the evidence supports the trial court’s conclusion that Delashaw’s injury was a recurrence or a continuation of her original injury and that Stein Mart is responsible for any workers’ compensation benefits due to Delashaw.

We now turn to Stein Mart’s argument that the trial court erred by determining that Delashaw was not confined to the benefits provided under the permanent-partial-disability schedule in § 25-5-57(a)(3) because the pain that she suffered as a result of her injury removed her from the purview of the schedule. As this court explained in Norandal U.S.A., Inc. v. Graben, 18 So.3d 405, 416 (Ala.Civ.App.2009) (“Graben I”), the pain exception to the schedule is a limited one, permitting an award of benefits outside the schedule only if the employee has suffered “a permanent injury to a scheduled member resulting in chronic pain in the scheduled member that is so severe that it virtually totally physically disables the worker.” This court further expounded upon the limits of the pain exception when we applied it to the facts of Graben in the opinion we issued on Norandal’s appeal after remand. Norandal U.S.A., Inc. v. Graben, [Ms. 2080679, March 12, 2010] — So.3d-,-(Ala. Civ.App.2010) (“Graben II ”).

In Graben II, this court noted that the pain exception was derived from a footnote in Ex parte Drummond Co., 837 So.2d 831, 836 n. 11 (Ala.2002). Graben II, — So.3d at - However, although the Drum-mond court indicated that pain could suffice in some situations to transform a scheduled-member injury into an injury to the body as a whole, we noted in Graben II that the Drummond court had accomplished a “reining in” of the application of the former test for compensating certain injuries outside the schedule first set out in Bell v. Driskill, 282 Ala. 640, 648, 213 So.2d 806, 811 (1968), overruled by Ex parte Drummond Co., 837 So.2d at 835. Graben II, — So.3d at-. Thus, we concluded in Graben II, the Drummond court’s pain exception would need to be construed and applied narrowly to prevent the law from returning to the very state that the Drummond court had acted to correct. Id.

With these principles in mind, this court explained:

“[I]n keeping with Ex parte Drummond and the legislative intent behind the schedule, the test is not satisfied by evidence that the worker experiences ‘abnormal,’ constant, and severe pain even when not using the affected member, see [Masterbrand Cabinets, Inc. v.] Johnson, 984 So.2d [1136,] 1144-45 [ (Ala.Civ.App.2005) ]; rather, it requires competent proof that whatever pain the worker experiences completely, or almost completely, physically debilitates the worker.”

Graben II, — So.3d at-. To make the necessary determination that the pain suffered by the employee “completely, or almost completely, physically debilitates” him or her, we said, “a trial court must consider all legal evidence bearing on the existence, duration, intensity, and disabling effect of pain in the scheduled member, including its own observations.” Id. at -. We also determined that the subjective complaints of the employee would be competent evidence of pain even without objective evidence supporting those complaints. Id. at-.

Applying the “exceedingly high standard” set out in Graben I and further explained by Graben II to the present case, Graben II, — So.3d at -, we must conclude that the trial court erred in determining that Delashaw’s pain was of such a nature as to satisfy the pain exception. Delashaw suffers from chronic pain that, if untreated by medication, is, on average, moderately severe. However, when Delashaw takes pain medication regularly, as she has done since her injury, Delashaw’s pain is reduced to, at times, as low as a 2 or 3 on the 10-point scale. Delashaw is able to work despite her pain because of the effectiveness of her pain-management treatment. None of the evidence at trial would support a conclusion that Delashaw’s pain approaches a level that “completely, or almost completely, physically debilitates” Delashaw. Graben II, — So.3d at-. Like the employee in Graben II, Delashaw “retains significant ability to perform physical activities.” Id. In fact, unlike the employee in Graben II, Delashaw continued to work at least 32 hours per week at the time of trial. Id. at -. Thus, we conclude that the trial court erred in determining that Delashaw’s pain was such that she should be compensated outside the schedule for permanent partial disability set out in § 25-5-57(a)(3). The trial court’s judgment awarding Dela-shaw workers’ compensation benefits based on her vocational disability is therefore reversed.

Delashaw also argued before the trial court and presented evidence at trial that her right-foot injury had resulted in an altered gait, which, in turn, caused Delashaw to suffer lower-back pain, which would be a separate basis for determining that Delashaw’s injury could be compensated outside the schedule. See, e.g., Boise Cascade Corp. v. Jackson, 997 So.2d 1042, 1046-47 (Ala.Civ.App.2008) (affirming an award of benefits outside the schedule on the ground that the worker’s foot injury had caused an altered gait that resulted in lower-back pain); and Chadwick Timber Co. v. Philon, 10 So.3d 1014, 1021 (Ala.Civ.App.2007) (“Before the trial court and in his brief submitted to this court, Philon argued that changes in his gait caused by his leg injury affected his back, causing him to suffer back pain and contributing to what he claims is his permanent total disability. If properly supported by the evidence, such a claim could support the trial court’s judgment.”); see also Graben II, — So.3d at-(“Alabama law has long recognized that an injury to the leg of a worker that alters the manner in which the worker walks and thereby produces pain or other symptoms in the hip or back of the worker constitutes an injury to the body as a whole.”). The trial court did not make a factual finding regarding the altered-gait theory, however, which it would be required to do under Ala.Code 1975, § 25-5-88, in order for that theory to support the trial court’s award of compensation to Delashaw. This court could affirm the trial court’s award of benefits on this alternate ground, despite the trial court’s lack of a factual finding on the issue, only in the narrow instance when we could conclude, “‘as a matter of law, that the record before [us] could not reasonably support any conclusion other than that [Delashaw’s] back injury occurred in the stated manner.’ ” Graben I, 18 So.3d at 413 (quoting Ex parte Philon, 10 So.3d 1022, 1026 (Ala. 2008) (Murdock, J., concurring specially)). We cannot conclude in this particular case that the evidence, as a matter of law, could not support any conclusion other than that Delashaw’s back pain has resulted from the change in her gait.

Thus, if we were to attempt to affirm the trial court’s award of benefits in the present case, our review would not be restricted, as it must, to issues of law. See id. at 412 (quoting Ex parte Philon, 10 So.3d at 1025 (Murdock, J., concurring specially)) (noting that an appellate court may affirm on any valid legal ground). In order to affirm the award of benefits to Delashaw, we would be required to make a factual determination as to whether the facts adduced at trial proved that Dela-shaw’s foot injury caused her to alter her gait and, in turn, caused her to suffer increased back pain. Our attempt to affirm would improperly usurp the role of the trial court by determining, in the first instance, what the facts at trial established. See id. at 413 (quoting Ex parte Philon, 10 So.3d at 1025 (Murdock, J., concurring specially)) (reiterating that it is the role of the trial court and not the appellate court to determine the facts when conflicts in the evidence exist). Accordingly, this court must remand the cause to the trial court for it to consider whether Delashaw is restricted to benefits provided for in the schedule for her injury or whether she might be entitled to benefits outside the schedule based on her altered-gait theory. See Ex parte Golden Poultry Co., 772 So.2d 1175, 1177 (Ala. 2000) (stating that this court “is not authorized to independently weigh the evidence” and reversing this court’s decision evaluating the evidence under the appropriate legal standard instead of remanding the cause to the trial court for it do so).

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

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


text:
    D.P. v. LIMESTONE COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2091129.
    Court of Civil Appeals of Alabama.
    Dec. 10, 2010.
    James C. Ayers, Jr., Athens, for appellant.
    Sharon E. Ficquette, gen. counsel, and Elizabeth Hendrix, staff atty., Department of Human Resources, for appellee.
    T. Mark MacLin, Athens, guardian ad litem.
   THOMAS, Judge.

D.P. (“the father”) appeals from a judgment of the Limestone Juvenile Court terminating his parental rights to R.C. (“the child”) based on a petition filed by the Limestone County Department of Human Resources (“DHR”). We affirm.

This is the second time these parties have been before this court. See D.P. v. Limestone County Dep’t of Human Res., 28 So.3d 759 (Ala.Civ.App.2009). In D.P., we summarized the history of the case before that appeal as follows:

“In April 2008, DHR filed a petition alleging that the child was dependent by virtue of the following circumstances: that the child’s mother, L.S., had ongoing substance-abuse problems and had neglected him; that the mother’s husband, R.S., was not the child’s biological father; and that D.P., the child’s alleged biological father, who had an extensive criminal record, had taken custody of the child. Following a hearing, the juvenile court determined that the child was dependent, awarded legal custody to DHR, and placed the child with maternal relatives. The court further ordered that paternity testing be conducted. That testing revealed that D.P. was indeed the biological father of the child, and the juvenile court formally adjudicated him to be the child’s father.
“In December 2008, DHR moved for a judicial determination that it was not obligated to make reasonable efforts to reunite the father and the child because, it alleged, the father had been charged in 1996 with capital murder and had been convicted in 1998 of manslaughter for causing the death of a former girlfriend’s 20-month-old child. DHR’s motion alleged that,
“ ‘pursuant to § 12-15-65(m)(2), Code of Alabama 1975, reasonable efforts shall not be required where a court of competent jurisdiction has determined that a parent has committed murder or voluntary manslaughter of another child.’
“The juvenile court set DHR’s motion to be relieved of the obligation to make reasonable efforts to reunite the father and the child for a hearing on January 30, 2009. The record does not contain a transcript of that hearing, but the court issued an order following the hearing indicating that the court and counsel had discussed the fact that § 12-15-65(m)(2), Ala.Code 1975, does not, in fact, relieve DHR of the obligation to make reasonable efforts when a court of competent jurisdiction determines that a parent has ‘[cjommitted murder or voluntary manslaughter of another child.’ (Emphasis added.) That statute applies when a parent has ‘[cjommitted murder or voluntary manslaughter of another child of such parent ’ (emphasis added), whereas the Alabama Juvenile Justice Act of 2008 (‘the current AJJA’), effective January 1, 2009, ‘expands the types of criminal offenses which, if committed by a parent of a child in foster care, excuses the state from making reasonable efforts .... ’ See Alabama Juvenile Justice Act of 2008 Annotated Guide, p. 62 n. 100 (Alabama Administrative Office of Courts, July 29, 2008). Section 12-15-312(c)(2), Ala.Code 1975, a part of the current AJJA, provides that DHR is excused from making reasonable efforts if a parent has, among other things, ‘[cjommitted murder or manslaughter of another child....’ Section 12-15-312(c)(2) contains no requirement that the victim of murder or manslaughter be the parent’s child.
“During the January 30, 2009, hearing, DHR apparently argued that § 12-15-312(c)(2), the current AJJA provision, governed the juvenile court’s decision on its motion, and the father argued that former § 12-15-65(m)(2) governed .... ”

28 So.3d at 760-61.

The juvenile court subsequently entered a judgment establishing the permanency plan for the child. The juvenile court also determined in its judgment that § 12-15-312(c)(2), Ala.Code 1975, applied to the case and that, pursuant to that statute, DHR was no longer required to use reasonable efforts to reunite the father with the child. Id. at 762. The father appealed the juvenile court’s judgment to this court. Id. After determining that the juvenile court’s judgment was a final, appealable judgment, this court addressed the father’s argument concerning the juvenile court’s determination that DHR was no longer required to use reasonable efforts toward reunification. Id. at 764.

The father argued in D.P. that the juvenile court’s application of § 12-15-312(c)(2) to him violated the constitutional prohibition against ex post facto laws. With respect to the father’s argument on appeal, we held:

“The record shows that the father made an argument to the juvenile court that § 12-15-312(c)(2) should not be applied to relieve DHR of the reasonable-efforts requirement. The record does not reveal, however, the basis of the father’s argument; consequently, there is nothing in the record to indicate that the father presented his ex post facto argument to the juvenile court. This court cannot consider arguments raised for the first time on appeal. Our review is restricted to the evidence and the arguments considered by the trial court; even constitutional issues may not be raised for the first time on appeal. Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992). See also Rule 4(a)(3), Ala. R.App. P. (any error asserted in the trial court may be asserted on appeal). Moreover, the prohibitions in both the United States Constitution and the Alabama Constitution against ex post facto laws apply only to criminal cases. See Colder v. Bull, 3 U.S. (3 Dali.) 386, 1 L.Ed. 648 (1798); Reed v. Brunson, 527 So.2d 102,114 n. 5 (Ala.1988).”

28 So.3d at 764-65. Consequently, we affirmed the juvenile court’s judgment that, among other things, relieved DHR of its requirement to use reasonable efforts to reunify the father with the child. Id.

On December 3, 2009, DHR petitioned the juvenile court to terminate the father’s parental rights. The juvenile court held a hearing on DHR’s petition, and, on August 23, 2010, it entered a judgment terminating the father’s parental rights to the child. The father subsequently appealed to this court.

The father presents one argument on appeal: that the juvenile court erred in terminating his parental rights because, he says, the juvenile court’s application of § 12-15-312(c)(2) violates the constitutional prohibition against ex post facto laws. Therefore, the father argues, DHR should not have been relieved of its duty to use reasonable efforts to reunify the father and the child. The issue that the father argues in the present appeal is identical to the issue already considered and decided in D.P.

The doctrine of the law of the case provides that “whatever is once established between the same parties in the same case continues to be the law of that case, whether or not correct on general principles, so long as the facts on which the decision was predicated continue to be the facts of the case.” Blumberg v. Touche Ross & Co., 514 So.2d 922, 924 (Ala.1987). Because in D.P. we affirmed the juvenile court’s judgment relieving DHR of using reasonable efforts to reunify the father and the child, the father is precluded by the doctrine of the law of the case from arguing that issue again in the present appeal. See M.H. v. Jefferson County Dep’t of Human Res., 42 So.3d 1291,1293 (2010) (holding that a final judgment relieving Jefferson County DHR of its duty to use reasonable efforts had become the law of the case and, therefore, that that holding could not be challenged in an appeal from a later judgment terminating a parent’s parental rights). Therefore, the juvenile court’s judgment terminating the father’s parental rights is due to be affirmed.

AFFIRMED.

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