author: MOORE, Judge.

text:
    Susanne M. PRATT v. John W. PRATT.
    2090249.
    Court of Civil Appeals of Alabama.
    Aug. 20, 2010.

      Brian Overstreet and Kenneth A. Nixon, Mobile, for appellant.
    Submitted on appellant’s brief only.
   MOORE, Judge.

Susanne M. Pratt (“the mother”) appeals from a judgment of the Montgomery Circuit Court (“the trial court”) divorcing her from John W. Pratt (“the father”) and awarding her supervised visitation with the parties’ three children. We affirm in part and reverse in part.

Procedural and Factual Background

This divorce action began when the father petitioned for a legal separation from the mother on July 2, 2008. The mother originally answered the father’s petition and counterpetitioned for a divorce, but she later withdrew her counterpetition. The father then amended his petition to seek a divorce. The trial court commenced a trial on February 24, 2009, but it recessed the trial on February 25, 2009, before concluding it on June 15, 2009. In the interim, the trial court awarded pen-dente lite custody of the children to the father and awarded the mother supervised visitation.

The pertinent evidence at trial, when viewed in a light most favorable to the findings of the trial court, indicates that the mother had developed health problems following the birth of the parties’ three children that caused her lethargy and other disabling symptoms, which sometimes prevented her from properly caring for the children. The mother used narcotic and other medications to treat those health problems, resulting in what one expert considered a substance-abuse problem, which another expert described as an “iatrogenic addiction.” The mother appeared to overcome those problems after the parties separated, which allowed her to start working as a nurse and permitted her to exercise custody of the children uneventfully for a period. However, in early December 2008, the mother experienced a seizure-like episode and lost consciousness late at night while at her home in Montgomery with the children and her father. Following that episode, the father obtained custody of the children while the mother remained hospitalized. Upon her discharge several days later, the mother’s treating physicians, who did not definitively diagnose the cause of the episode but suspected it may have arisen from the mother’s medically unsupervised attempt to withdraw from all of her medications, recommended that the mother cease using narcotic medications; however, at the time of trial, the mother continued to use narcotic medications prescribed by her pain-management physician. Some evidence suggested that the mother had also obtained prescription medications from other physicians without coordinating with her primary doctor. All the expert testimony on the subject recommended that, due to her unresolved health and prescription-drug-use problems, the mother should have supervised visitation with the children.

The trial court entered its judgment of divorce on June 24, 2009. In that judgment, the trial court, among other things, divorced the parties, awarded the parties joint legal custody of the children, awarded the father primary physical custody of the children, and awarded the mother supervised visitation. In reference to the mother’s supervised visitation, the judgment stated:

“3. ... The [mother] shall have supervised visitation with the children and said visitation shall be supervised by Roger and Gloria Burk. The counselor, Laurie Mattson Shoemaker, shall prepare guidelines to be given to the supervisors for the supervised visitation.
“4. The schedule of supervised visitation may be upon agreement of the parties, however, said visitation shall occur no less than once every two weeks, beginning June 26, 2009. The location and length of visits are at the discretion of the [father] and the supervising party, however, each visit should last at least two hours and should be held in as ‘home-like’ a setting as possible, so that the children feel comfortable.”

The trial court indicated that the judgment was final, but it scheduled a review hearing for October 5, 2009, for the sole purpose of evaluating the mother’s visitation status.

On July 23, 2009, through new counsel, the mother timely filed a motion to alter, amend, or vacate the judgment or, alternatively, for a new trial. The mother’s post-judgment motion was deemed denied by operation of law on October 21, 2009. See Rule 59.1, Ala. R. Civ.App. The mother then timely filed her notice of appeal.

Analysis

Supervised Visitation

We initially address the mother’s argument that the trial court exceeded its discretion in ordering supervised visitation based on its concern that the mother had developed an addiction to prescription pain medication. From our reading of her brief, the mother does not complain that the trial court did not have sufficient evidence before it to support its concern that the children could be at risk while visiting the mother due to her prescription-drug-use problem. Rather, the mother contends that the trial court should have protected the children by using means other than supervised visitation that would be less intrusive on the parent-child relationship.

“The trial court has broad discretion in determining the visitation rights of a noncustodial parent, and its decision in this regard will not be reversed absent an abuse of discretion.” Carr v. Broyles, 652 So.2d 299, 303 (Ala.Civ.App.1994). In exercising its discretion over visitation matters, “‘[t]he trial court is entrusted to balance the rights of the parents with the child’s best interests to fashion a visitation award that is tailored to the specific facts and circumstances of the individual case.’ ” Ratliff v. Ratliff, 5 So.3d 570, 586 (Ala.Civ.App.2008) (quoting Nauditt v. Haddock, 882 So.2d 364, 367 (Ala.Civ.App.2003) (plurality opinion)). A noncustodial parent generally enjoys “reasonable rights of visitation” with his or her children. Naylor v. Oden, 415 So.2d 1118, 1120 (Ala.Civ.App.1982). However, those rights may be restricted in order to protect children from conduct, conditions, or circumstances surrounding their noncustodial parent that endanger the children’s health, safety, or well-being. See Ex parte Thompson, 51 So.3d 265, 272 (Ala.2010) (“A trial court in establishing visitation privileges for a noncustodial parent must consider the best interests and welfare of the minor child and, where appropriate, as in this case, set conditions on visitation that protect the child.”). In fashioning the appropriate restrictions, out of respect for the public policy encouraging interaction between noncustodial parents and their children, see Ala.Code 1975, § 30-3-150 (addressing joint custody), and § 30-3-160 (addressing Alabama Parent-Child Relationship Protection Act), the trial court may not use an overbroad restriction that does more than necessary to protect the children. See Smith v. Smith, 887 So.2d 257 (Ala.Civ.App.2003), and Smith v. Smith, 599 So.2d 1182, 1187 (Ala.Civ.App.1991).

In Ex parte Thompson, supra, our supreme court recently endorsed supervised visitation as a reasonable means of protecting the child of a noncustodial parent who was suffering from, among other problems, an unresolved substance-abuse condition when the evidence showed that unsupervised visitation would have subjected the child to an unreasonable risk of harm. The mother argues that, in this case, the trial court could have adequately addressed its safety concern for the children by simply ordering that she refrain from using prescription drugs. In Jackson v. Jackson, 999 So.2d 488 (Ala.Civ.App.2007), a plurality of this court concluded that a mother, who was accused of having in the past occasionally used marijuana for recreational use outside the presence of her children, should have been allowed unsupervised visitation subject to a prohibition against exposing the children to any illegal drug use. 999 So.2d at 495. However, the facts of this case differ significantly from those in Jackson. The mother in this case uses narcotic and other prescription medications daily, which use has adversely affected her ability to parent the children in the past and the cessation of which may have caused or contributed to her prior “black-out” episode while in her home with the children. In Ratliff, supra, we found it unreasonable to restrict a mother from using prescription drugs designed to control her mental-health problems while visiting with her children because such a restriction could actually endanger the children. For that same reason, we conclude that the trial court in this case could not have merely ordered the mother to refrain from using her prescription medications while visiting with the children.

Because the trial court reasonably could have concluded that supervised visitation was necessary to protect the children from an unreasonable risk of physical or emotional harm emanating from the condition of the mother, and because the trial court reasonably could have rejected as inadequate the less intrusive means of protection advocated by the mother, we find that the trial court did not exceed its discretion in awarding the mother supervised visitation with the children.

The Discretion Over the Mother’s Visitation Granted to the Father and the Visitation Supervisors

The mother next contends that the manner in which the trial court structured its award of supervised visitation granted the father so much discretion over her right to visitation that the father, in essence, may effectively veto that right. Although the trial court specified that the mother was to receive, at a minimum, two hours of visitation every two weeks, the trial court did not specify the location or the length of the mother’s visits. Rather, the trial court granted the father and the visitation supervisors the exclusive discretion to determine the location of the visitation and whether the mother’s visits should be extended beyond the minimum two-hour period. Additionally, although the trial court’s judgment did not expressly grant the father the right to dictate the time at which the mother’s visits are to be held, the judgment places considerable discretion in the father by requiring his agreement as to the timing of the visitation. Thus, whether the discretion granted to the father and/or the visitation supervisors violates Alabama law is squarely before this court.

Although Alabama law originally found no problem with vesting a custodial parent with complete discretion over the visitation of the noncustodial parent, see Jones v. Jones, 252 Ala. 304, 40 So.2d 872 (1949); Cunningham v. Cunningham, 641 So.2d 807 (Ala.Civ.App.1994), overruled on other grounds by T.L.D. v. C.G., 849 So.2d 200 (Ala.Civ.App.2002); Ellison v. Ellison, 48 Ala.App. 80, 261 So.2d 911 (Ala.Civ.App.1972); and Hayes v. Hayes, 387 So.2d 770 (Ala.Civ.App.1976), over time our appellate courts began to recognize that divorced parties often disagree regarding visitation matters, see, e.g., Harrison v. Harrison, 279 Ala. 675, 189 So.2d 471 (1966); Barran v. Barran, 431 So.2d 1278 (Ala.Civ.App.1983); Cunningham v. Cunningham, 480 So.2d 1238 (Ala.Civ.App.1985); and Darby v. Sherrer, 689 So.2d 875 (Ala.Civ.App.1996), and that a custodial parent should not be allowed to unilaterally limit or restrict the noncustodial parent’s visitation, see Fillingim v. Fillingim, 388 So.2d 1010, 1012 (Ala.Civ.App.1980). This court eventually held that a visitation order awarding “ ‘reasonable visitation with the minor children at the discretion of the [custodial parent]’ ” generally should not be allowed because it authorizes the custodial parent to deny visitation altogether, which would not be in the best interests of the children. Bryant v. Bryant, 739 So.2d 53, 56 (Ala.Civ.App.1999), and id. at 57 (“The record reveals nothing to support a conclusion that the husband is not committed to his children’s best interests or that the best interests of the children would be benefited by vesting the husband’s right to visit them solely within the wife’s discretion.”).

Since the decision in Bryant, this court has repeatedly held that a judgment awarding visitation to be supervised by the custodian of the child, without establishing a minimal visitation schedule for the noncustodial parent, impermissibly allows the custodian to control all visitation. See K.L.U. v. M.C., 809 So.2d 837 (Ala.Civ.App.2001) (trial court exceeded its discretion by allowing mother complete discretion over father’s visitation with child); K.L.R. v. L.C.R., 854 So.2d 124, 126 (Ala.Civ.App.2003) (rejecting trial court’s judgment that provided mother “ ‘the right of reasonable access [to] visitation’ with the [parties’] children” as failing to set forth a specific schedule for mother’s visitation with children and permitting father to decide mother’s visitation); R.K.J. v. J.D.J., 887 So.2d 915, 916 (Ala.Civ.App.2004) (rejecting visitation schedule that awarded mother supervised visitation “at reasonable time and places” as not sufficiently specific and as allowing custodial parent the ability to deny visitation); L.L.M. v. S.F., 919 So.2d 307 (Ala.Civ.App.2005) (recognizing that the juvenile court was required to set forth a specific visitation schedule for the noncustodial parent rather than placing custodial parent in control of visitation); D.B. v. Madison County Dep’t of Human Res., 937 So.2d 535 (Ala. Civ.App.2006) (plurality opinion) (recognizing that a judgment allowing custodial parent complete discretion over noncustodial parent’s visitation with child was reversible error); and A.M.B. v. R.B.B., 4 So.3d 468 (Ala.Civ.App.2007) (recognizing as reversible error a trial court’s judgment leaving the noncustodial parent’s visitation rights to the sole discretion of the custodial parent or other legal custodian of the child). See also J.J. v. J.H.W., 27 So.3d 519 (Ala.Civ.App.2008) (court’s judgment conditioning mother’s right to visitation on dates and times children visited with maternal grandparents impermissibly deprived mother of right to specific visitation by granting maternal grandparents complete control over whether any visitation occurred); and K.B. v. Cleburne County Dep’t of Human Res., 897 So.2d 379 (Ala.Civ.App.2004) (reversing trial court’s visitation award that allowed the child’s aunt and uncle to dictate terms of mother’s visitation with the child). Based on the above-cited cases, an order of visitation granting a custodian so much discretion over a visitation schedule that visitation could be completely avoided if the custodian so desired should be deemed to be an award of no visitation and to be in violation of the rights of the noncustodial parent.

This court, however, has affirmed awards of unspecified visitation based on the agreement of the parties when the trial court also provides that, in the event of disagreement, “standard visitation” or some other specified visitation would be imposed. See, e.g., Burleson v. Burleson, 875 So.2d 316, 321 (Ala.Civ.App.2003) (awarding father visitation at “such reasonable times and places as can be mutually agreed upon by the parties,” but specifying a sufficiently definite schedule to be followed in the event the parties could not agree); and Moody v. Nagle, 811 So.2d 546, 548 (Ala.Civ.App.2001) (plurality opinion) (awarding “ ‘visitation at reasonable times and places and if the parties are unable to agree ..., then the following standard visitation schedule will apply....’”).

Thus, a judgment awarding visitation that guarantees the noncustodial parent a specified visitation schedule, while granting the custodian discretion to allow for additional visitation, does not necessarily violate the rights of the noncustodial parent. Burleson, supra; and Moody, supra. The propriety of the judgment depends on whether the noncustodial parent has a sufficient, specified visitation schedule to rely upon, independent of the custodial parent’s discretion.

Applying the rationale of the above-cited cases to the visitation schedule established for the mother in this case, we agree with the mother that the visitation schedule is unduly vague and that it, in fact, fails to provide her with any schedule at all. As noted above, the mother is guaranteed to receive only two hours of visitation every two weeks; she has no guarantee when or where those visits will occur. Because the time and location of her visits are expressly within the discretion of the father (as well as within the discretion of the visitation supervisors), the mother has no recourse should the father elect to schedule those visits at a time and location prohibitive for the mother. Because the trial court has cloaked the father’s decisions with such broad discretion, the father’s lack of cooperation in providing the mother with a reasonable visitation schedule would not be readily addressable by a contempt action.

We also reiterate that “ ‘[t]he trial court is entrusted to balance the rights of the parents with the child’s best interests to fashion a visitation award that is tailored to the specific facts and circumstances of the individual case.’ ” Ratliff, 5 So.3d at 586 (quoting Nauditt v. Haddock, 882 So.2d at 367) (emphasis added). That judicial function may not be delegated to a third party. See, e.g., M.R.J. v. D.R.B., 34 So.3d 1287 (Ala.Civ.App.2009) (reversing as an improper delegation of judicial authority a trial court’s visitation judgment in which the mother’s visitation was at the sole discretion of the child’s guardian ad litem). A trial court is not empowered to delegate its judicial functions even to another governmental agency. Hall v. Hall, 717 So.2d 416 (Ala.Civ.App.1998) (a trial court cannot delegate the decision whether to terminate father’s supervised visitation to those who would decide whether father would be prosecuted for sexual abuse). See also Sloand, v. Sloand, 30 A.D.3d 784, 816 N.Y.S.2d 603 (N.Y.App.Div.2006) (affirming that portion of the trial court’s order awarding supervised visitation to mother, but reversing as an improper delegation of judicial authority that portion of the order delegating to the child’s therapist the authority to expand or reduce mother’s access to child).

The trial court’s visitation award, as written, vests the father and the visitation supervisors with nearly complete discretion in determining when, where, and how the mother exercises her current visitation rights; it also grants a third party the right to decide when and if the mother’s visitation rights should be expanded. Because those are nondelegable determinations for the trial court, we reverse those portions of the trial court’s judgment and remand the cause for the trial court to establish a sufficiently specific visitation order for the mother.

The Discretion Granted to the Children’s Counselor

The mother next asserts that the trial court exceeded its discretion by improperly delegating its judicial authority to the children’s counselor to specify the conditions governing the mother’s supervised visitation. For the same reasons stated in the previous section, we agree. The determination of a parent’s visitation in a divorce action is a judicial function and, as such, only the trial court, subject to review on appeal, is empowered to determine a schedule of visitation between a parent and his or her children. See supra; and Hall, supra. See also Sloand, supra.

By delegating to the children’s counselor the authority to specify guidelines governing the mother’s visitation, the trial court improperly delegated its judicial function to a third party. We, therefore, also reverse that portion of the trial court’s judgment.

Other Issues

The mother further argues that the trial court did not narrowly tailor the supervised-visitation provisions of its judgment using the least restrictive means available because, she says, it was sufficient for the trial court to simply name any suitable adult as a visitation supervisor. The mother, however, raises this argument for the first time on appeal. At the trial, the mother argued only that she should receive unsupervised visitation. Although the mother filed a postjudgment motion, she failed to specifically assert this argument therein. It appears that a hearing was held on the mother’s postjudgment motion; however, the record contains no transcript from that hearing, and we have no indication as to whether the mother raised this argument before the trial court.

“This Court cannot consider arguments raised for the first time on appeal; rather, our review is restricted to the evidence and arguments considered by the trial court.” Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992). See also Gotlieb v. Collat, 567 So.2d 1302, 1304 (Ala.1990) (“This Court cannot put a trial court in error for failing to consider evidence or accept arguments that, according to the record, were not presented to it.”). We, therefore, cannot address the mother’s argument on this issue.

Additionally, the mother’s brief does not articulate any particular dissatisfaction with the supervisors named by the trial court. Thus, we need not address that unraised issue. See Rule 28(a)(10), Ala. R. Civ. P. (stating that the appellant’s brief shall contain an argument setting forth the contentions of the appellant and the reasons therefor, with supporting citations to authority).

Conclusion

We affirm the trial court’s judgment to the extent it required the mother’s visitation with the children to be supervised. We reverse the trial court’s judgment to the extent it granted the father and the visitation supervisors the authority to determine the location and timing of the mother’s visits and to determine whether to increase the length of the mother’s visits. We also reverse that portion of the trial court’s judgment authorizing the children’s counselor to establish guidelines governing the mother’s visitation. We remand the cause to the trial court for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

      . "Iatrogenic” is defined to mean "induced inadvertently by a physician or surgeon or by medical treatment or diagnostic procedures.” Merriam-Webster’s Collegiate Dictionary 614 (11th ed. 2003).

      . We conclude that, although the trial court scheduled a hearing to review the mother's supervised visitation, the judgment was final. See K.L.U. v. M.C., 809 So.2d 837, 840 (Ala. Civ.App.2001) (concluding that a judgment containing a supervised-visitation award to a father was final and would support an appeal, although the trial court had already set a review hearing of the father's supervised visitation).


source: Caselaw Access Project

license: Public Domain

text:
    Anthony Clint GODWIN v. Kimberly DAVIS.
    2090351.
    Court of Civil Appeals of Alabama.
    Aug. 20, 2010.
    Melinda Lee Maddox, Mobile, for appellant.
    Robert C. King, Monroeville, for appel-lee.
   MOORE, Judge.

Anthony Clint Godwin (“the father”) appeals from a judgment of the Conecuh Circuit Court (“the trial court”) awarding postminority support to Kimberly Davis (“the mother”) for two of the parties’ children.

Procedural History

According to the father, the parties were divorced in October 1992. Three daughters were born of the parties’ marriage. The parties’ oldest child, C.G., was born on September 8, 1987, and the parties’ youngest child, A.C.G., was born on July 6, 1990. The parties’ middle child, who was married at the time of the hearing, is not the subject of this appeal.

The father testified that the parties had agreed on a child-support payment of $475 per month for all three of the parties’ children, who were minors at the time the divorce agreement was entered by the parties, and that the divorce agreement stated that the father was to continue paying child support until the youngest child reached the age of majority. The father testified that he had not discussed modifying his child-support obligation with the mother when the oldest child reached the age of majority or when the parties’ middle child got married; he testified that, instead, he discontinued his child-support payments in July 2009, when the youngest child reached the age of majority, in accordance with the parties’ agreement.

The mother testified, however, that, before the youngest child reached the age of majority, she and the father had had discussions about modifying the father’s child-support obligation. She stated that the father had said that he was going to pay only two-thirds of the child-support amount after their middle child got married but that he had eventually agreed to continue paying $475 after they discussed the matter; the father subsequently discontinued his support payments after July 2009.

The mother filed a petition for a modification of child support in the trial court on May 29, 2009, requesting the trial court to continue the father’s obligation to pay $475 per month in child support until the youngest child completed her college degree. The father filed a motion to dismiss the mother’s petition on August 24, 2009, arguing, among other things, that the mother had failed to give notice that she was seeking postminority support for the oldest child before she reached the age of majority and that the youngest child had become emancipated one year before the filing of the father’s motion to dismiss because she had moved out of the mother’s home.

On September 4, 2009, the father filed an answer to the mother’s petition, asserting, among other things, including those arguments asserted in his motion to dismiss, that his child-support obligation had ceased on July 6, 2009, when the youngest child had reached the age of majority, and that requiring the father to pay postminority support would create a substantial and undue hardship on the father and would be beyond the scope of the parties’ divorce agreement.

The mother amended her petition for modification on September 15, 2009, to specifically request postminority support for the oldest child and the youngest child (hereinafter sometimes referred to collectively as “the children”). The father filed an answer to the mother’s amended petition on September 21, 2009. After a hearing on November 17, 2009, the trial court entered a judgment on December 8, 2009, which stated, in pertinent part:

“IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the [father] shall pay to the [mother] the sum of $800.00 per month as retroactive post-minority support for the college education expenses of the parties’ children with the first such monthly payment being retroactively due from the month of August, 2009 through the month of December, 2009, for a retroactive amount due from the filing of the petition of $4,000.00, and,
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the [father] shall pay to the [mother] the sum of $800.00 per month as current post-minority support for the college education expenses of the parties’ children, with the first such current payment being due on or before the 1st day of January, 2010, and a like monthly payment shall be due each and every month thereafter, and,
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that such post-minority child support obligation of the [father] shall be conditioned upon the following requirements: (1) each child shall maintain a 2.0 average, (2) the post-minority obligation shall not exceed a 5 year period for each child, including the years that each child has already attended college and (4) each child shall be enrolled as a full time student and shall not discontinue enrollment for a period exceeding 1 semester without good cause, and,
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that upon graduation of either child, upon the expiration of the 5 year period for either child, and/or upon either minor child not fulfilling the requirements of this Order, the Court shall hold a hearing upon the request of either party to determine the extent of any remaining post-minority child support obligation.”

(Capitalization in original.)

The father filed a postjudgment motion on December 17, 2009; that motion was denied on December 21, 2009. The father filed his notice of appeal to this court on January 8, 2010.

Facts

At the outset of the trial, both parties agreed that the children have the ability and the desire to attend college. Both parties also agreed, via them attorneys, that they would have contributed to the children’s education if they had remained married.

According to the mother, at the time of the trial, the oldest child was a full-time student at Auburn University and the youngest child was attending Southern Union State Community College. The mother testified that both children had received Pell grants and that the oldest child had also obtained student loans. The mother stated that the children resided together in Auburn in a mobile home that she had purchased for them and that she paid for the mobile home and other living expenses for the children, which amounted to approximately $1,897 per month, including automobile insurance, gas, food, and electricity, among other things. According to the mother, the oldest child’s boyfriend did not live in the mobile home with the children, but he had, at times, helped pay bills when money was tight. She stated that both children have vehicles and that neither of the children work.

The mother testified that she did not file a petition seeking postminority support for the oldest child before she turned 19 because she thought the father’s support obligation continued until the children were out of college, but, she said, after she consulted her divorce papers, she realized she was incorrect.

The mother testified that she works for the Department of Public Safety and that her earnings in 2008 were $32,690.90. The father testified that he works at Reed Logging and that his income varies; he reported income of $41,000 on his income-tax return in 2008, and, in 2009, he had earned approximately $81,000 as of November 10, 2009. The father stated that he had recently reenlisted with the National Guard, that he had earned a signing bonus of $7,500 that he would receive over the course of six years, and that he would be called to active duty in January 2010. According to the father, he would likely be paid $2,218.50 each month upon his deployment, in addition to a basic housing allowance. The father testified, however, that he did not know the exact amount of pay he would receive upon his deployment. He stated that his deployment would be for approximately one year but that it could be for longer. The father testified that he wanted the children to have a good education and that he could afford payments of $200 per month.

Discussion

The father first argues that the trial court erred by awarding postminority support for the oldest child because, he argues, an action for postminority support must be filed before the child attains the age of 19, see Newman v. Newman, 667 So.2d 1362, 1367-68 (Ala.Civ.App.1994), and the oldest child had turned 19 well before the mother filed her petition for modification.

The mother cites Jackson v. Nelson, 686 So.2d 338 (Ala.Civ.App.1996), for the proposition that, when parents execute an agreement under which one parent agrees to pay postminority support, that support obligation may be enforced by a trial court although the request for the enforcement was not made until after the child had attained the age of majority. In Jackson, the parties executed an agreement when the parties’ child was 18 years old; that agreement provided that the father would pay $200 per month as postminority support. The parties filed a joint petition to modify their divorce judgment by incorporating that agreement. 686 So.2d at 339. The trial court entered a judgment modifying the divorce judgment by requiring the father to pay postminority support for the child as provided in the agreement; the parties’ joint petition and the trial court’s judgment were both filed after the child had reached the age of majority. Id. In determining that the parties’ agreement was enforceable despite the fact that the application for enforcement had been made after the child had reached the age of majority, this court stated:

“Trial courts were not considered to have the authority to order postminority support on the petition of a party until the decision in Ex parte Bayliss, [550 So.2d 986 (Ala.1989) ]. However, it has long been recognized that parties may agree between themselves to pay support beyond a child’s minority, and that such agreements are enforceable. Smith v. Smith, 439 So.2d 1286 (Ala.Civ.App.1983); Yarbrough v. Motley, 579 So.2d 684 (Ala.Civ.App.1991). Despite the father’s assertion that Bayliss unconditionally requires the filing of a petition prior to the child’s majority, and, therefore, precluded the trial court from properly ordering postminority support in this case, we see no logical reason for extending that rule to the situation in which a prior agreement between the parties is sought to be enforced. Nor do we believe that such an agreement, voluntarily entered into by the father, may be legally enforced only when filed with a court before the child’s majority. Therefore, we hold that, in the narrow exception of the facts presented, the trial court had the jurisdiction to order the father to pay postminority support in compliance with the parties’ agreement.”

686 So.2d at 339.

In the present ease, the mother asserts that the father admitted that an agreement existed between the parties regarding postminority support for the children. The record reveals, however, that the father has maintained, both before the trial court and on appeal, that he believed that his support obligation ended upon the parties’ youngest child’s reaching the age of majority. The only agreement referenced by the father is that agreement incorporated into the parties’ divorce judgment, which includes no mention of postminority support. Moreover, the mother testified that she believed the parties’ agreement required the father to continue paying support in the amount of $475 until the children finished college, which was why she had failed to file a modification petition seeking postminority support for the oldest child, but that she had been incorrect in that belief.

The mother testified that the father had informed her that he would pay only two-thirds of his child-support obligation upon their middle child’s getting married but that he had later agreed to continue to pay $475 a month. It is undisputed, however, that the father discontinued his child-support payments upon the youngest child’s attaining the age of 19. The parties’ divorce judgment, which incorporated the parties’ agreement, required the father to pay $475 per month for child support until the youngest child attained the age of majority. Thus, the father’s continued payment of that amount after the parties’ middle child got married did not amount to a new agreement between the parties because the father was required to continue paying that amount according to the terms of the parties’ divorce judgment. Unlike in Jackson, there is no evidence in the present case indicating that the father agreed to make payments that he was not required to make under the divorce judgment or that he made any such payments. Moreover, unlike in Jackson, the father did not voluntarily submit an agreement to pay postminority support to the trial court. We decline, therefore, to widen the narrow exception applied in Jackson to the facts of the present case. Because the mother’s modification petition was filed after the oldest child had reached the age of majority, we conclude, in accordance with Newman, 667 So.2d at 1367-68, that the trial court erred in awarding postminority support for the oldest child.

The father next argues that the trial court erred in awarding postminority support when the parties’ agreement, incorporated into the divorce judgment, stated that the father’s child-support obligation would terminate upon the youngest child’s reaching the age of majority. The father cites no authority, however, for his assertion that the failure to include an award of postminority support in a divorce agreement that is incorporated into a divorce judgment precludes later modification of that judgment by the trial court to award postminority support. See Rule 28(a)(10), Ala. R.App. P. Moreover, in Thompson v. Alexander, 579 So.2d 665, 666-67 (Ala.Civ.App.1991), this court stated:

“[A]n agreement between parents fixing child support becomes merged into the divorce decree and thereby loses its contractual nature, at least to the extent that a court of equity has the power to modify the decree when changed conditions so justify. Ezell v. Ezell, 486 So.2d 446 (Ala.Civ.App.1986). See also Tucker v. Tucker, 403 So.2d 262 (Ala.Civ.App.1981).”

Because the trial court retained the power to modify the parties’ divorce judgment in response to the mother’s petition for post-minority support, we conclude that the father’s argument is without merit.

The father asserts generally that the trial court’s judgment creates an undue hardship on him by requiring him to pay postminority support, that there is no viable relationship between him and his youngest child, and that the youngest child has not shown great aptitude for college. The father has failed, however, to support those assertions with any citation to facts or legal authority in compliance with Rule 28(a)(10). White Sands Group, L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1058 (Ala.2008) (“Rule 28(a)(10) requires that arguments in briefs contain discussions of facts and relevant legal authorities that support the party’s position. If they do not, the arguments are waived.”).

The father argues that requiring him to pay postminority support “creates a disparity between the treatment of divorced parents and married parents,” which, he argues, “violates [his] constitutional rights and violates the bounds of the parenVchild relationship.” We note first that we are without the authority to overrule Ex parte Bayliss, 550 So.2d 986 (Ala. 1989), as the father requests. Moreover, the father raises his constitutional challenge for the first time on appeal. “[A]n issue not raised at trial cannot be raised for the first time on appeal.” Bindley v. Bindley, 531 So.2d 925, 926 (Ala.Civ.App.1988). We decline, therefore, to address the father’s assertions regarding the constitutionality of an award of postminority support.

The father asserts also that postminority support in a family with married parents is usually “tied to acceptable behavior and passing grades” but that a divorced parent has no recourse to require his or her child to “comply with reasonable educational standards.” On the contrary, however, this court has stated:

“Following Bayliss, this court has held that the trial court must set reasonable limitations on the parent’s responsibility for postminority education support, because a failure to do so may impose an undue hardship on the paying parent. See Manring v. Manring, 744 So.2d 919, 922 (Ala.Civ.App.1999); Hocutt v. Hocutt, 591 So.2d 881, 882 (Ala.Civ.App.1991); Kent v. Kent, 587 So.2d 409, 412 (Ala.Civ.App.1991). These limitations include (1) limiting the support to a reasonable period, (2) requiring the child to maintain at least a ‘C’ average, and (3) requiring that the child be enrolled as a full-time student. Manring v. Manring, 744 So.2d 919, 922 (Ala.Civ.App.1999); Ullrich v. Ullrich, 736 So.2d 639, 643 (Ala.Civ.App.1999)(quoting Bahri v. Bahri, 678 So.2d 1179, 1181 (Ala.Civ.App.1996)).”

Penney v. Penney, 785 So.2d 376, 379 (Ala. Civ.App.2000). Indeed, in the present case, the trial court imposed each of the above-quoted limitations in its judgment awarding postminority support.

Conclusion

We affirm the trial court’s award of postminority support for the youngest child. We reverse the trial court’s judgment insofar as it awarded postminority support for the oldest child, who had reached the age of majority before the mother filed her petition for postminority support, and we remand the cause to the trial court for it to recalculate the father’s postminority-support obligation for the youngest child only.

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

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

      . Neither party submitted a copy of the parties' divorce judgment. It was undisputed, however, that that judgment incorporated an agreement of the parties; the terms of that agreement that are pertinent to this appeal are also undisputed, as discussed below.


text:
    Natasha Dunn CLAYBROOK v. Byron K. CLAYBROOK.
    2090144.
    Court of Civil Appeals of Alabama.
    Aug. 27, 2010.
    Linda C. Dunn, Northport, for appellant.
    Paula W. Watkins, Tuscaloosa, for ap-pellee.
   MOORE, Judge.

Natasha Dunn Claybrook (“the wife”) appeals from the denial of her post-judgment motion, filed pursuant to Rule 59, Ala. R. Civ. P., seeking to alter, amend, or vacate the judgment of the Tuscaloosa Circuit Court (“the trial court”), in which the trial court divorced the wife from Byron K. Claybrook (“the husband”) and incorporated the parties’ stipulated settlement agreement. We reverse.

Background

The wife and the husband were married on October 25, 1996. Three children were born of the parties’ marriage and all three of the parties’ children were minors at the time the parties separated in June 2009. On July 10, 2009, while at the office of the husband’s attorney, the parties executed the documents necessary for an uncontested divorce. In addition to the court-mandated forms, the parties executed a document entitled “Agreement in Contemplation of Divorce.” In that agreement, the parties stipulated to a child-custody arrangement, child support, a division of their marital property, a waiver of any right to alimony from the other party, and a release of any interest each may have had to the retirement benefits of the other. According to the express terms of the parties’ agreement, the provisions therein were to become effective and binding only upon the entry of a judgment of divorce. The husband filed the executed documents with the trial court on July 22, 2009.

On July 29, 2009, the wife moved the trial court to enter a temporary restraining order (“TRO”) against the husband. In that motion, the wife alleged that, both before and after the parties executed the divorce documents, the husband had engaged in behaviors and acts that, according to the wife, amounted to physical, mental, or verbal abuse directed at her and the parties’ minor children; acts of harassment and domestic violence that involved the police; and threats of removing the children from the court’s jurisdiction and designed to prevent the wife from seeing the children. The wife alleged that she had signed the uncontested-divorce documents on July 10, 2009, under duress and coercion. She also alleged that the husband controlled all the parties’ assets and that, as a result, she had no assets with which to obtain her own legal counsel and had been forced to seek state assistance such as food stamps and Medicaid for the benefit of herself and the children. The wife was not represented by legal counsel, and she filed the TRO motion pro se.

On August 10, 2009, the wife moved to dismiss her motion for a TRO. At an August 17, 2009, hearing held on the wife’s motion for a TRO, the wife submitted a handwritten motion to the trial court indicating her desire to withdraw her motion for a TRO and to “proce[ed] with the divorce.” The trial court entered an order granting the wife’s request to withdraw the TRO motion and noting that the uncontested divorce would proceed as submitted. A copy of that order was served on the wife and on the husband’s legal counsel.

On August 26, 2009, legal counsel for the wife filed a notice of appearance. On August 28, 2009, the wife, through her legal counsel, moved to “Repudiate and Withdraw the Parties’ Agreement in Contemplation of Divorce for Cause.” Through her legal counsel, the wife asserted that she had executed the uncontested-divorce documents under duress, coercion, and threats from the husband. The wife also asserted that the husband had not honored his obligations and agreements as set out in those documents, that the husband had not paid child support, that the husband had forced the wife and the children from the marital home, and that the police had been involved with the parties on two occasions since the documents had been executed. The wife did not contest the entry of a judgment of divorce, but she indicated that, due to their inequity, she no longer consented to the provisions of the previously filed documents relating to the division of the parties’ marital property and child support. The wife submitted numerous exhibits in support of her motion.

On September 1, 2009, the trial court entered a judgment of divorce, incorporating into that judgment the terms and provisions set forth in the parties’ July 10, 2009, agreement. The trial court made no mention in the divorce judgment of the wife’s motion to repudiate the previously executed agreement.

On September 17, 2009, the wife filed a “Motion to Alter, Amend, or Vacate the Final Judgment as to the Parties’ Agreement For Property Division” and a brief, with supporting exhibits. On October 28, 2009, after hearing arguments, the trial court denied the wife’s postjudgment motion; the trial court also denied any other pending requests for relief by either party.

The wife filed her notice of appeal on November 5, 2009. On appeal, she asserts that the trial court erred in denying her postjudgment motion, that the trial court committed reversible error in deviating from the mandatory child-support guidelines of Rule 32, Ala. R. Jud. Admin., in the judgment of divorce, and that the trial court erred in failing to award the wife a reasonable amount for attorney’s fees and expenses incurred in this case.

Analysis

In her postjudgment motion, the wife asserted that, in light of her motion to repudiate the previously executed agreement, the trial court committed reversible error in incorporating that agreement into the judgment of divorce. We agree with the wife that the trial court exceeded its discretion and that its judgment must be reversed.

“Agreements between parties to divorce actions are generally binding, and such agreements will not be set aside, ‘except for fraud, collusion, accident, surprise or some other ground of this nature.’ ” Grantham v. Grantham, 656 So.2d 900, 901 (Ala.Civ.App.1995) (quoting Brocato v. Brocato, 332 So.2d 722, 724 (Aa. 1976)). See also Wilcoxen v. Wilcoxen, 907 So.2d 447, 449 (Ala.Civ.App.2005) (“A trial court has the discretionary authority to permit a party to repudiate an agreement in contemplation of divorce if that party is able to show ‘good cause.’ ... ‘Good cause includes “fraud, collusion, acei-dent, surprise or some other ground of this nature.” ’ ” (quoting Culver v. Culver, 651 So.2d 21, 23 (Ala.Civ.App.1994), quoting in turn Borders v. Borders, 597 So.2d 1373, 1375 (Ala.Civ.App.1992))).

This court has addressed various defenses to the enforceability of a contract asserted by a party seeking to set aside a stipulated settlement agreement in a divorce action. See, e.g., Wilcoxen, supra (addressing the wife’s defense of fraud in the making of the settlement agreement and recognizing that, although such agreements may be binding and enforced against the parties, they are not binding on the trial court in drafting a divorce judgment); Allen v. Allen, 903 So.2d 835 (Ala.Civ.App.2004) (addressing husband’s challenge to the enforcement of a stipulated settlement agreement in a divorce action on the grounds of duress and inequity); Morrison v. Morrison, 837 So.2d 840 (Ala.Civ.App.2001) (addressing wife’s challenge to divorce judgment that incorporated parties’ alleged settlement agreement; wife asserted that the purported agreement was not a final settlement and had been improperly incorporated into the divorce judgment); Elliott v. Elliott, 667 So.2d 116 (Ala.Civ.App.1995) (addressing wife’s defenses to the enforceability of a settlement agreement on the grounds of duress, coercion, misrepresentation, and deceit by her husband); Culver, supra (husband moved to set aside alimony provision of divorce judgment, which incorporated agreement of the parties, on grounds of mistake and inequity); Grantham, supra (addressing mother’s claim of fraud and misrepresentation in connection with her execution of settlement agreement); Borders, supra (addressing wife’s claim that her attorney had had a conflict of interest at the time he assisted the wife in negotiating a settlement agreement, and, thus, had not “ably represented her,” as a basis to set aside a divorce judgment incorporating that agreement); Tidwell v. Tidwell, 505 So.2d 1236 (Ala.Civ.App.1987) (addressing wife’s defenses to the enforcement of a stipulated settlement agreement in a divorce action on the grounds of failure of contract, fraud, duress, and inequity); and Kohn v. Kohn, 52 Ala.App. 636, 296 So.2d 725 (Civ.App.1974) (addressing husband’s claim that the parties’ settlement agreement was inequitable and should be set aside).

In Tidwell, supra, on the date set for trial in the parties’ divorce action, the parties and their attorneys informed the trial court that an oral settlement agreement had been reached and that a written settlement agreement would be forwarded to the court. 505 So.2d at 1237. After a date for a final hearing was scheduled, the wife moved to set aside the parties’ agreement, and the husband moved to enforce the agreement. Id. at 1236.

After a hearing, at which ore tenus evidence was received, the trial court concluded that the parties had entered into a valid separation agreement and that the agreement had not been obtained by fraud or duress and was not unjust or unfair. Id. Upon entry of a final divorce judgment incorporating the parties’ agreement, the wife appealed. Id. On appeal, the wife asserted that the trial court had erred in finding that a complete agreement existed between the parties, that the agreement was unenforceable because it had been obtained by fraud or duress, and that the agreement was unfair, unjust, and unreasonable. Id. This court stated:

“We note that an agreement reached in settlement of litigation is as binding upon the parties as any other contract. Porter v. Porter, 441 So.2d 921 (Ala.Civ.App.1983). Furthermore, there is a strong policy of law favoring compromises and settlements of litigation, especially in cases involving families. Porter, supra. The fact that the defendant attempted to repudiate the settlement prior to the submission of a written agreement to the court for incorporation into a judgment did not change the binding nature of the agreement. However, though an agreement may be binding upon the parties in a divorce case, it is not binding upon the court, which may exercise discretion and accept or reject the agreement in whole or in part Porter, supra.

505 So.2d at 1237. This court then found the ore tenus evidence presented to the trial court sufficient to support the trial court’s findings that the parties had entered into a binding and completed contract. Id. at 1238. This court then considered the wife’s defenses to the enforceability of the parties’ contract. Id.

“Alabama recognizes that upon showing of duress or undue influence a party may be relieved of contractual obligations. Head v. Gadsden Civil Service Board, 389 So.2d 516 (Ala.Civ.App.1980). A contract may be rescinded if procured because of fraud or mutual mistake of law. Thomas v. Davis, 241 Ala. 271, 2 So.2d 616 (1941)....
“... Alabama law is clear that a settlement agreement which is given effect by a divorce decree must be fair, reasonable, and just. Cary v. Cary, 257 Ala. 431, 59 So.2d 659 (1952). It is well within the trial court’s discretion to make this determination, thus the question becomes whether there was enough evidence presented at trial to support the court’s finding.”

Id Upon consideration of the evidence presented to the trial court in light of those principles, this court concluded that the trial court’s findings were amply supported and affirmed the trial court’s divorce judgment. Id

In Elliott, supra, the wife filed a motion, pursuant to Rule 60(b), Ala. R. Civ. P., seeking to set aside a divorce judgment that incorporated the parties’ settlement agreement. 667 So.2d at 117. The wife alleged that the agreement had been obtained under conditions of duress, coercion, misrepresentation, and deceit by her husband. Id After an evidentiary hearing, the trial court denied the wife’s motion to set aside the judgment. The wife appealed. Id

This court recognized the discretion granted to a trial court in determining whether to grant a Rule 60(b) motion but concluded that the trial court had exceeded its discretion in failing to set aside the divorce judgment at issue. Id at 118-19. In addressing the wife’s claims, the court stated:

“1 “Duress” has been defined as subjecting a person to improper pressure which overcomes his will and coerces him to comply with the demands to which he would not yield if acting as a free agent, and is a ground on which to support a setting aside of a divorce decree and underlying agreement.’ Delchamps v. Delchamps, 449 So.2d 1249 (Ala.Civ.App.1984)....
“Additionally, a Rule 60(b) motion should be granted where the judgment was obtained through misrepresentation. ‘Misrepresentation’ is defined as ‘any manifestation by words or other conduct by one person to another that, under the circumstances amounts to an assertion not in accordance with the facts.... That which, if accepted, leads the mind to an apprehension of a condition other and different from that which exists.’ Black’s Law Dictionary, 1001 (6th ed.1990); see Sims v. Callahan, 269 Ala. 216, 112 So.2d 776 (1959); HealthAmerica v. Menton, 551 So.2d 235 (Ala.1989)....
“ ‘If the agreement was obtained through duress and fraud, then the divorce is void.’ Cary v. Cary, 257 Ala. 431, 59 So.2d 659 (1952)....
“A separation agreement incorporated in a divorce judgment must be fair, reasonable and just, and free from fraud, duress, or other coercion. Kunkel v. Kunkel, 547 So.2d 555 (Ala.Civ.App. 1989); Delchamps v. Delchamps, 449 So.2d 1249 (Ala.Civ.App.1984).”

Id at 118-19. This court concluded that the evidence presented by the wife in support of her Rule 60(b) motion amply established that she had acted under duress in signing the agreement, that the husband had misrepresented the purpose of the agreement and the need for the wife’s signature thereon, that the husband’s misrepresentation rose to the level of fraud, and that the provisions set forth in the agreement were wholly unjust. Id As a result, this court concluded that the trial court had exceeded its discretion in denying the wife’s request to set aside the divorce judgment. Id at 119.

In Kohn, supra, the wife filed for a divorce on the grounds of physical cruelty. 52 AlaApp. at 638, 296 So.2d at 727. Simultaneously with the filing of her petition, the wife filed an answer and waiver that had been executed by the husband and a stipulated property-settlement agreement that had been executed by both parties. Id Within a few days of the wife’s filing, the husband moved to withdraw the answer and waiver; he also moved to strike the previously executed agreement. Id. The trial court conducted a hearing, at which ore tenus evidence was received, without entering a ruling on the husband’s motion to withdraw and motion to strike. Id. After the hearing, the trial court entered a divorce judgment, as requested by the wife; that divorce judgment incorporated the provisions of the parties’ agreement, which the trial court held to be binding and enforceable. Id.

On appeal, this court affirmed in part and reversed in part the judgment of the trial court. 52 Ala.App. at 641, 296 So.2d at 729. This court concluded that the evidence supported the trial court’s findings that the wife was entitled to a divorce on the ground of physical cruelty, that the husband had not been under duress or undue influence at the time he had executed the agreement, and that no fraud had been perpetrated upon the husband in obtaining his signature upon the agreement. 52 Ala.App. at 640, 296 So.2d at 728. This court, however, concluded that the trial court should have struck, or should have allowed the husband to withdraw, the previously executed agreement because of the inequity of its terms. 52 Ala.App. at 640, 296 So.2d at 728. This court stated:

“As our supreme court stated in Williams v. Williams, 261 Ala. 328, 337, 74 So.2d 582, 590 [ (1954) ], quoting from Rash v. Bogart, 226 Ala. 284, 287, 146 So. 814, 816 [ (1933) ], when referring to a property agreement or separation agreement in a divorce matter:
“ ‘Such a contract, supported by a valuable consideration, is sustained in equity as other contracts, subject to annulment or cancellation for fraud, concealment, or other equity. (Citations omitted)’ (Emphasis added [in Kolm])
“Here, when two parties have been married over twenty years, worked side by side in acquiring a sizable estate, then agree to a divorce with a property agreement wherein the wife gets virtually everything and, thereafter, within eighteen days after the documents are filed with the court but before they are acted upon by the court, the husband moves to withdraw or strike the documents, it is error for the trial court to refuse to do so and find the agreement valid and binding. Our reason for so holding is based upon the inequity of the agreement, itself.
“Furthermore, there can be no question but that under the law in Alabama, the trial court in making its decree is not controlled by the agreement of the parties, and it may adopt or reject such parts of it as seem proper from the situation of the parties as shown by the evidence on the trial.”

52 Ala.App. at 640, 296 So.2d at 729. Based on the evidence presented to the trial court, this court concluded that the trial court had erred in finding the parties’ property agreement to be valid and binding, and we remanded the cause to the trial court with instructions to set aside the parties’ stipulated property division and to enter a judgment incorporating a more equitable property division. 52 Ala. App. at 640-41, 296 So.2d at 729-30.

In this case, the husband submitted the uncontested petition for a divorce on July 22, 2009. In her July 29, 2009, TRO motion, and again in her August 28, 2009, motion to repudiate the agreement, the wife acknowledged that she had signed the agreement. In her TRO motion and in her motion to repudiate, however, the wife alleged that the parties’ marriage and their separation had been marked by repeated instances of domestic violence, that she had signed the agreement under duress, coercion, and threats, and that the terms of the agreement were inequitable and unjust. The wife further alleged that she had attempted to consult with independent legal counsel regarding the documents but that the husband was in control of all the marital funds and he had withheld those funds from her, thereby rendering it impossible for her to retain independent legal representation at the time the settlement agreement was executed.

Because any of the defenses asserted by the wife in her motion to repudiate, if proven, would void the parties’ settlement agreement or, alternatively, would have justified the trial court’s refusal to adopt any or all of the provisions contained in that agreement, see, e.g., Elliott, supra (discussing duress, misrepresentation, fraud, and inequity as defenses to the enforceability of a stipulated settlement agreement in a divorce action), the trial court should have conducted an evidentia-ry hearing on that motion to determine the validity of the wife’s allegations. See, e.g., Allen, supra (after husband filed motion to set aside settlement agreement, trial court scheduled and conducted evidentiary hearing to determine validity of husband’s defenses to enforceability of that agreement); and Kohn, supra (accord).

Instead, the trial court entered a judgment of divorce in which it incorporated the parties’ settlement agreement without allowing the wife an opportunity to present evidence in support of her defenses to the enforceability of the settlement agreement. The trial court subsequently denied the wife’s Rule 59(e) motion, in which she pointed out to the trial court that the divorce judgment had been entered without consideration of her pending motion to repudiate and that, instead, in entering the judgment the court had relied on statements made by the wife before she filed her motion to repudiate. See Kohn, supra (recognizing that, because the evidence established the terms of parties’ stipulated settlement agreement were inequitable and unjust, the trial court should have granted husband’s motion to withdraw his stipulated settlement agreement); and Elliott, supra (reversing trial court’s denial of wife’s motion to set aside divorce judgment and stipulated settlement agreement that had been incorporated therein because evidence supported wife’s defenses to the enforceability of that settlement agreement).

Accordingly, we conclude that the trial court exceeded its discretion in failing to grant the wife’s Rule 59(e) motion to alter, amend, or vacate the divorce judgment so that the wife’s defenses to the enforceability of the settlement agreement could be considered at an evidentiary hearing. We, therefore, reverse the trial court’s judgment and remand the cause for further proceedings consistent with this opinion.

We point out that, on remand, even if the wife’s evidence fails to establish a defense sufficient to defeat the enforcement of the parties’ agreement, the trial court is not bound by the provisions set forth therein. The trial court must independently determine whether the provisions of that agreement comply with Rule 32, Ala. R. Jud. Admin., or whether a deviation therefrom is justified, and whether the provisions of the agreement are just and equitable under the circumstances. See Wilcoxen, supra; Morrison, supra; Elliott, supra; and Kohn, supra. See also Wilkerson v. Wilkerson, 719 So.2d 235 (Ala.Civ.App.1998) (upon consideration of wife’s motion to set aside stipulated divorce agreement, the trial court did not exceed its discretion in failing to adopt that agreement when the agreement did not comply with Rule 32(A), Ala. R. Jud. Admin., and the trial court found that the agreement was inequitable in other respects); and Rule 32(A)(2), Ala. R. Jud. Admin.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      . Although the heading of the wife’s motion and brief indicated that the wife objected only to the terms of the property division as set forth in the parties' agreement, which had been incorporated into the divorce judgment, the substance of the wife’s argument indicated that she also challenged the parties’ agreement as to custody and child support. The wife also alleged that, according to the trial court clerk, the trial court had been unaware of the wife’s motion to repudiate the parties’ agreement until after the entry of the September 1, 2009, divorce judgment.

      . We do not intend an exhaustive recitation of the defenses raised in the wife’s motion to repudiate the parties’ agreement. To the extent the wife asserted other defenses and arguments in support of her motion, she is free to pursue such defenses and arguments on remand.

      . In light of our resolution, we pretermit a discussion of the other issues raised in the wife’s appeal.


author: THOMPSON, Presiding Judge.

text:
    WATER WORKS BOARD of the CITY OF BIRMINGHAM v. Allan ISOM.
    2090413.
    Court of Civil Appeals of Alabama.
    Aug. 27, 2010.

      Susan Walker of Waldrep Stewart & Kendrick, LLC, Birmingham, for appellant.
    Jonna M. Denson, Birmingham, for ap-pellee,
   THOMPSON, Presiding Judge.

The Water Works Board of the City of Birmingham (“the Board”) appeals from the judgment of the Jefferson Circuit Court awarding Allan Isom permanent-partial-disability benefits pursuant to the Alabama Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975 (“the Act”). For the reasons set forth herein, we affirm.

Isom began working for the Board in 1990. On June 16, 2003, he was injured in an on-the-job accident (“the 2003 injury”). As a result of that accident, Isom filed an action against the Board pursuant to the Act. That action concluded in a settlement agreement between the parties that provided for a lump-sum payment to Isom of $18,480, with the Board’s obligation to pay for Isom’s future medical benefits remaining open. As part of its judgment based on the parties’ settlement, the trial court assigned Isom a 10% permanent whole-body disability rating.

On July 3, 2008, Isom filed an action against the Board in which he asserted that he had been injured again on July 4, 2006, as a result of another on-the-job accident (“the 2006 injury”). He sought relief against the Board pursuant to the Act. The Board filed an answer to the complaint in which it denied that Isom had been injured in an accident on July 4, 2006. The Board asserted, among other things, that the injury of which Isom was complaining was a continuation of the 2003 injury and that Isom’s recovery was limited to compensation for the degree of injury that would have resulted from the 2006 injury if the 2003 injury had not occurred.

On August 26, 2009, the trial court held a bench trial of the action. Isom testified that he began working for the Board in 1990 and that he was promoted to his present position of supervisor in 2002. His duties as a supervisor included operating water valves, locating water leaks, and directing crews that worked in the field.

Isom testified that the 2003 injury stemmed from an automobile accident in which he injured his left shoulder and neck. Isom testified that he had two surgeries on his left shoulder and underwent physical therapy as a result of the 2003 injury. He testified that, after the second surgery, he was released to return to work without restrictions and that he had worked several months before the 2006 injury without seeing a doctor regarding his shoulder. He testified that, during that time, he had no problems with his shoulder and that he could do anything he wanted to do with it with regard to his job. He testified that he felt as though he had recovered and healed from the 2003 injury after the second surgery related to that injury.

At trial, Isom introduced medical records relating to the 2003 injury. The report from a surgery that Dr. David Adki-son performed on Isom’s left shoulder on August 28, 2003, indicated that Isom had been diagnosed with a left-shoulder superi- or labral tear and subacromial impingement. The surgery revealed, among other things, a “very large type II labral tear extending into the origin of the MGHL and involving the entire biceps anchor.”

The medical records indicated that Dr. Daniel Michael began treating Isom in April 2004. A medical record from Isom’s April 26, 2004, appointment with Dr. Michael indicated that Isom was experiencing continued pain in his left shoulder and neck, occasionally radiating to his elbow. Dr. Michael ordered an MRI of Isom’s neck. The MRI revealed some degeneration of Isom’s cervical spine.

A medical note from Isom’s May 5, 2004, visit with Dr. Michael indicated that Dr. Michael decided to treat Isom’s neck pain with an epidural block. A medical note dated June 2, 2004, indicated that Isom obtained significant relief for a few days from his neck pain from the epidural block. A medical note from July 14, 2004, indicated that Isom’s neck pain had virtually resolved but that he was continuing to experience pain in his left shoulder with an increasing popping in the shoulder. Dr. Michael ordered an MRI for Isom’s shoulder to determine whether his shoulder was having difficulty healing from the August 2003 surgery or whether there was some other problem with his rotator cuff that had been previously overlooked. That MRI revealed no evidence of a tear in the rotator cuff or any injury to the labrum. Dr. Michael ordered an epidural block for Isom’s left shoulder, which reduced Isom’s pain.

A medical record from December 20, 2004, indicated that Isom was experiencing stiffness and irritation in his shoulder. A physical examination revealed that he might have been experiencing some recurring tendinitis or bursitis. He was given another epidural block. A medical record from January 3, 2005, indicated that he was continuing to experience pain in his left shoulder and that Dr. Michael determined that he should undergo a second surgery on his shoulder to remove scar tissue from the previous surgery that could have been causing Isom’s shoulder difficulty.

On January 21, 2005, Dr. Michael performed a second surgery on Isom’s left shoulder. It was determined during that surgery that the labrum had not reattached to the glenoid, and corrective procedures were performed to cause that reattachment. A medical note from April 6, 2005, indicated that Isom’s shoulder was better except for some occasional soreness when he crossed his arm over his chest. A medical note from May 4, 2005, indicated that “[t]he only time [Isom] has trouble with the shoulder is when he over does it.” Dr. Michael indicated that the second surgery had been successful. He assigned Isom a medical-impairment rating of 10% to the body as a whole and indicated that Isom’s activities were unrestricted. . A medical record from August 10, 2005, indicated that Isom was released from all work restrictions as of that day. A medical record from October 12, 2005, indicated that Isom’s left shoulder was not bothering him very much and that Isom would follow up with Dr. Michael on an as-needed basis.

Isom testified that, on July 4, 2006, the day of his injury made the basis of the present action, the Board was closed. Isom testified that he was on call that day, and he was called in to work because of multiple broken water mains. He stated that, at the time he was injured that day, he was operating a 12-inch water valve with another Board employee. He testified that the valve was difficult to operate because it was old, having been installed before 1921. He testified that, as he and the other employee were pulling the valve, he felt a tearing pain in his left shoulder that went to his left elbow. He stated that he also experienced pain in his neck.

Isom testified that he called Bruce Adams, his supervisor, the next day and told him that he had hurt his shoulder and how he had done so. Isom testified that this was the appropriate procedure for reporting a workplace injury, although he admitted that he did not inform Adams that the injury to his shoulder was a new one. Isom stated that Adams told him to call Herb Allen, the Board’s safety officer, and inform Allen about the injury. Isom testified that Allen directed him to contact Dr. Michael, the second doctor who had treated Isom for the 2003 injury.

A medical record dated July 12, 2006, indicated that Isom returned to Dr. Michael complaining of soreness in his left shoulder. Dr. Michael gave Isom a steroid shot in the shoulder and restricted him from heavy lifting and strenuous activity with his left arm and left shoulder. A medical record from August 7, 2006, indicated that Isom was continuing to experience pain and that Dr. Michael ordered another steroid shot. A medical record dated September 20, 2006, indicated that Isom was continuing to experience pain in his left shoulder. The record states:

“Up until he turned the large valve earlier this year he stated that his shoulder had gotten completely well and he was basically doing everything that he wanted to. Since it is not responding and he is acting the same way he did before we did his last surgery I would be worried that the labral repair might have been disrupted.”

The note also related that Isom was developing cubital tunnel symptoms in his left elbow. Dr. Michael ordered an MRI of Isom’s shoulder. The MRI revealed that the “rotator cuff tendon repair appeared] to be intact with no evidence of recurrence.”

On November 10, 2006, Dr. Michael performed another surgery on Isom’s left shoulder. Based on the surgery, Dr. Michael noted that Isom had a “SLAP” lesion at the insertion of the biceps tendon and that he had an anterior labral tear. He wrote: “[Isom] previously had a labral repair several years ago and with a recent injury this apparently retore that repair.” A medical note from January 24, 2007, indicated that Isom’s left shoulder was progressively improving but that he was experiencing pain in his neck. Dr. Michael ordered a cervical epidural block for Isom’s neck pain. A medical note from March 21, 2007, indicated that Isom was continuing to experience neck pain, and Dr. Michael ordered another epidural block for Isom’s neck, as well as treatment for his left elbow.

The medical records indicate that Dr. Thomas Powell began treating Isom in June 2007 and that Isom was continuing to have pain in his left shoulder and neck at that time. A medical note dated September 10, 2007, indicated that Dr. Powell believed Isom to be at maximum medical improvement, and he ordered an impairment rating. Upon evaluation, Isom was assigned a 10% impairment of the left upper extremity and a 6% impairment of the whole person. A medical note from Isom’s October 23, 2007, appointment with Dr. Powell indicated that Dr. Powell agreed with those impairment ratings. The note indicated that Isom was able to return to work and that Dr. Powell would see Isom on an as-needed basis. He prescribed pain medication for Isom.

Isom testified that, after his last visit with Dr. Powell in October 2007, Dr. Powell released him to return to full-duty work without restrictions. He testified that he had not received treatment for his left shoulder, left elbow, and neck from any other doctors since his last visit with Dr. Powell. Isom testified that he had not had any problems with his left elbow before the 2006 injury but that, since that injury, he has continued to have problems with it. He testified that he had ongoing problems with his left arm and his neck as well. He testified that, before the 2006 injury, he did not have those problems. However, on cross-examination, Isom admitted that he had experienced ongoing pain in his neck since the 2003 injury, for which he took a narcotic pain medication until the last time he saw Dr. Michael in October 2005. Isom testified that, because of the problems with his neck and his left shoulder, he had difficulty sleeping at night and doing particular activities, such as cutting the grass or changing a flat tire.

Herb Allen, the Board’s safety officer, testified that, under the circumstances, Isom’s reporting-of the 2006 injury to his supervisor was the correct procedure for Isom to follow to report his injury. Allen testified that he did not recall being informed before October 24, 2006, that Isom had sustained a new shoulder injury, and he stated that he did not recall Isom contacting him on July 5, 2006, regarding the 2006 injury. Allen testified that he found Isom, with whom he had worked for the preceding 18 years, to be honest, to be a hard worker, and to be a dependable employee.

The Board offered into evidence the deposition of Dr. Powell. In his deposition, Dr. Powell testified that he could not state to any degree of medical certainty whether the labral tear was related to the 2003 injury or to the 2006 injury because he did not begin treating Isom until after Isom had had the November 2006 surgery. He stated that if Isom had “had an acute symptomatic tear, whether it was a retear or not,” he would think that it “would be related to an event that had just occurred.” Dr. Powell testified that the 2006 injury “appear[ed] to be a new injury” and that, based on Dr. Michael’s records and assuming those records were correct, it appeared that what he was treating Isom for was caused or contributed to by the July 4, 2006, accident.

A letter from Dr. Michael to Isom’s counsel dated April 28, 2009, was made an exhibit to Dr. Powell’s deposition. In that letter, Dr. Michael wrote, in pertinent part:

“It appears that between [Isom’s] last two surgeries, there was a period of time where he was symptom-free in regard to the left shoulder. It appears that he was back [to] full duty with no restrictions and no limitations in regards to having had the two procedures done, one by Dr. Adkison and the other by me. On or around July 4, 2006, there appeared to be a new injury while turning a large valve. This injury subsequently led to further surgery on the same shoulder where there was injury to the area where he had the previous two surgeries. In reviewing the records, it is my opinion that the incident on or around July 4, 2006, was a new injury even though [it] was in the same area where he had some surgical repair of a torn labrum with that period of time where he was symptom-free. I feel [that] his injury had healed and the injury in July 2006 created a new injury to the old area of the shoulder.”

On December 17, 2009, the trial court entered a final judgment. The trial court found that Isom “was performing his duties at the time of this traumatic injury,” that the injury arose out of his employment with the Board, and that the Board had been given timely notice of the injury. The trial court found that, as a result of the injury to his left shoulder, left elbow, and neck, Isom had suffered a loss of at least 12.5% of the use of his left arm and that he was due to be awarded benefits pursuant to the Act. The trial court awarded Isom $9,459.48 as accrued permanent-partial-disability payments. The trial court awarded Isom weekly permanent-partial-disability payments of $92.74 for the next 190 weeks. The trial court taxed the costs of the action to the Board, and it ordered the Board to be responsible for future medical treatment for Isom’s left shoulder, left elbow, and neck. On December 21, 2009, the trial court amended the amount of costs taxed to the Board. The Board appeals.

Section 25-5-81(e), Ala.Code 1975, provides the standard by which this court reviews appeals in cases arising under the Act. That section provides:

“(e) Review. From an order or judgment, any aggrieved party may, within 42 days thereafter, appeal to the Court of Civil Appeals and review shall be as in cases reviewed as follows:
“(1) In reviewing the standard of proof set forth herein and other legal issues, review by the Court of Civil Appeals shall be without a presumption of correctness.
“(2) In reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence.”

Discussing this standard, this court wrote in Reeves Rubber, Inc. v. Wallace, 912 So.2d 274, 279 (Ala.Civ.App.2005):

“When this court reviews a trial court’s factual findings in a workers’ compensation case, those findings will not be reversed if they are supported by substantial evidence. § 25-5-81(e)(2), Ala.Code 1975. Substantial evidence is ‘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.’ West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). Further, this court reviews 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 (Ala.1996). This court has also concluded: ‘The [1992 Workers’ Compensation] Act did not alter the rule that this court does not weigh the evidence before the trial court.’ Edwards v. Jesse Stutts, Inc., 655 So.2d 1012, 1014 (Ala.Civ.App.1995). However, our review as to purely legal issues is without a presumption of correctness. See Holy Family Catholic School v. Boley, 847 So.2d 371, 374 (Ala.Civ.App.2002) (citing § 25-5-81(e)(1), Ala.Code 1975).”

The Board contends that Isom did not give it adequate notice of the 2006 injury. It argues that he merely indicated to his supervisors that he had hurt his left shoulder without actually relating the 2006 injury to a work-related incident. It argues that Isom did not provide written notice to it of the 2006 injury until October 24, 2006, the day after Dr. Michael determined that he had experienced another labral tear.

Section 25-5-78, Ala.Code 1975, provides:

“For purposes of this article only, an injured employee or the employee’s representative, within five days after the occurrence of an accident, shall give or cause to be given to the employer written notice of the accident. If the notice is not given, the employee or the employee’s dependent shall not be entitled to physician’s or medical fees nor any compensation which may have accrued under the terms of this article, unless it can be shown that the party required to give the notice had been prevented from doing so by reason of physical or mental incapacity, other than minority, fraud or deceit, or equal good reason. Notwithstanding any other provision of this section, no compensation shall be payable unless written notice is given within 90 days after the occurrence of the accident or, if death results, within 90 days after the death.”

Although § 25-5-78 speaks in terms of written notice, this court has written:

“The purpose of written notice is to advise the employer that the employee received a specified injury, in the course of his employment, at a specified time, and at a specified place, so that the employer may verify the injury by its own investigation. James v. Hornady Truck Line, Inc., 601 So.2d 1059 (Ala.Civ.App.1992). Written notice is not required where it is shown that the employer had actual notice of the injury. James. Oral notice is sufficient to give the employer actual notice. James. Like written notice, oral notice imparts to the employer the opportunity to investigate and protect itself against simulated and exaggerated claims. International Paper Co. v. Murray, 490 So.2d 1228 (Ala.Civ.App.), remanded on other grounds, 490 So.2d 1230 (Ala.1984). Even with oral notification, the employer must be notified that the employee was injured while in the scope of his employment. James. The fact that an employer is aware that the employee suffers from a malady or has medical problems is not, by itself, sufficient to charge the employer with actual notice. Russell Coal Co. v. Williams, 550 So.2d 1007 (Ala.Civ.App.1989). Knowledge on the part of a supervisory or representative agent of the employer that a work-related injury has occurred will generally be imputed to the employer. Beatrice Foods Co. v. Clemons, 54 Ala.App. 150, 306 So.2d 18 (Ala.Civ.App.1975).”

Wal-Mart Stores, Inc. v. Elliott, 650 So.2d 906, 908 (Ala.Civ.App.1994).

The Board argues that, in the present case, Isom told Bruce Adams, his supervisor, only that he had hurt his shoulder. We agree with the Board that, if that was all Isom had said to Adams, that information would have been insufficient to provide the Board with the knowledge that the injury causing the pain in Isom’s shoulder was related to his work for the Board. See Premdor Corp. v. Jones, 880 So.2d 1148, 1155 (Ala.Civ.App.2003) (worker’s oral statement that she had hurt her back without indication of how she had hurt her back was not sufficient notice to employer that injury was work related). However, the testimony at trial indicated that Isom told Adams more than that he had hurt his shoulder; Isom testified that he had told Adams how he had hurt his shoulder. Both Isom and Herb Allen, the Board’s safety officer, indicated that Isom’s informing Adams of the 2006 injury was the proper procedure he was to follow to report his injury. In our view, Isom’s and Allen’s testimony was sufficient to support the trial court’s conclusion that Isom had provided adequate notice to the Board of the 2006 injury and sufficient information to apprise it that his injury was related to the work he was performing for the Board. As a result, we cannot agree that the Board demonstrated that Isom failed to provide adequate notice under the Act.

The Board also contends that the trial court erred when it awarded Isom permanent-partial-disability benefits under the Act based on the 2006 injury when the 6% whole-body impairment rating Dr. Powell assigned to Isom for the 2006 injury was less than the 10% whole-body impairment rating found by the trial court in the 2005 judgment it entered based on the 2008 injury. Relying on § 25-5-57(a)(4)e. and § 25-5-58, Ala.Code 1975, the Board argues that “the trial court erred in failing to apportion Isom’s disability between [the 2003 injury] and impairment and his alleged [2006 injury] and impairment” and that Isom was not entitled to any additional payments beyond those which he had received as a result of the 2003 injury because Isom had not experienced an increase in his impairment rating for the 2006 injury over the 2003 injury.

Section 25-5-57(a)(4)e. provides:

“If an employee has a permanent disability or has previously sustained another injury than that in which the employee received a subsequent permanent injury by accident, as is specified in this section defining permanent injury, the employee shall be entitled to compensation only for the degree of injury that would have resulted from the latter accident if the earlier disability or injury had not existed.”

Section 25-5-58 provides: “If the degree or duration of disability resulting from an accident is increased or prolonged because of a preexisting injury or infirmity, the employer shall be liable only for the disability that would have resulted from the accident had the earlier injury or infirmity not existed.”

In Francis Powell Enterprises, Inc. v. Andrews, 21 So.3d 726, 736 (Ala.Civ.App.2009), this court discussed the proper application of § 25-5-58, writing:

“Powell argues that because Andrews had a preexisting back injury with spondylolisthesis, his right to recover workers’ compensation benefits for the November 3, 2003, on-the-job injury is limited by § 25-5-58, Ala.Code 1975....
“In a long line of cases beginning with Ingalls Shipbuilding Corp. v. Cahela, 251 Ala. 163, 36 So.2d 513 (1948) (superseded on other grounds by statute, see Tit. 26, § 262(a), Ala.Code 1940), Alabama appellate courts have held that ‘ “the term ... infirmity in [§ 25-5-58] refer[s] to a condition which affects [the plaintiffs] ability to work as a normal man at the time of the accident or which would probably so affect him within the compensable period.” ’ Ex parte Lewis, 469 So.2d 599, 601 (Ala.1985) (quoting Cahela, 251 Ala. at 173, 36 So.2d at 521). Pursuant to Cahela,
‘the law presumes that there is no preexisting injury or infirmity when the employee is able to fully perform his or her job duties in a normal manner prior to the subject injury. [Section 25-5-58] only applies when the previous injury or infirmity has demonstrated itself as disabling and prevented the employee from earning wages in a normal manner.’
“1 Terry A. Moore, Alabama Workers’ Compensation § 16.25 at 708-09 (1998) (emphasis added; footnote omitted).”

We note that “[§] 25-5-57(a)(4)e. has been construed identically to § 25-5-58 so that if the employee is working normally at the time of the second accident, the law presumes the employee had no preexisting disability or injury.” Alamo v. PCH Hotels & Resorts, Inc., 987 So.2d 598, 604 n. 1 (Ala.Civ.App.2007) (citing Ex parte Bratton, 678 So.2d 1079, 1083 (Ala.1996)).

In the present case, Isom testified that, following the 2003 injury and his recovery therefrom, he was able to return to work and perform his job fully without any restrictions for a period of several months before the 2006 injury. He testified that, during that period, he experienced no problems with his left shoulder and that he could do anything he wanted ■with regard to his job. The medical records submitted at trial support Isom’s testimony in this regard. Because the 2003 injury neither demonstrated itself as disabling nor prevented Isom from earning wages in a normal manner, the trial court did not err in refusing to consider the effects of the 2003 injury on Isom’s impairment following the 2006 injury. The trial court’s judgment is due to be affirmed as to this issue.

Finally, relying on the “last-injurious-exposure rule,” the Board contends that Isom’s 2006 injury was merely a recurrence of his 2003 injury and that, because the Board had already compensated him for the 2003 injury, he was not entitled to any further compensation based on the 2006 injury. The Board points to medical notes indicating that the 2006 injury was a “retear” of the surgical repair on Isom’s glenoid labrum, which had been torn as a result of the 2003 injury. The Board also points out that Isom’s medical-impairment rating from the 2003 injury exceeded his medical-impairment rating from the 2006 injury. The Board concludes that “[t]he medical evidence undisputedly establishes that Isom sustained a recurrence of his [2003 injury], and, therefore, that Isom did not sustain a new injury entitling him to additional compensation for the same impairment of the same torn labrum that he sustained on June 13, 2003.”

Generally, the last-injurious-exposure rule is utilized by courts to determine which of multiple employers is liable for a subsequent injury sustained by a worker.

“Under the ‘last injurious exposure’ rule, ‘liability falls upon the carrier covering [the] risk at the time of the most recent injury bearing a causal relation to the disability.’ North River Insurance Co. v. Purser, 608 So.2d 1379, 1382 (Ala. Civ.App.1992). The trial court must determine whether the second injury is ‘a new injury, an aggravation of a prior injury, or a recurrence of an old injury; this determination resolves the issue of which insurer is liable.’ Id.
“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. If the second injury is characterized as a recurrence of the first injury, then the first insurer is responsible for the medical bills; however, if the injury is considered an aggravation of the first injury, then it is considered a new injury and the employer at the time of the aggravating injury is liable for the medical bills and disability payments. North River, supra.”

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

As noted above, in the April 28, 2009, letter from Dr. Michael to Isom’s counsel, Dr. Michael opined that the 2003 injury had completely healed before Isom sustained the 2006 injury and that the 2006 injury was a new injury. Although Dr. Powell testified that he could not state to any degree of medical certainty whether Isom’s labral tear following the accident causing the 2006 injury was related to the 2003 injury or to the 2006 injury because he did not treat Isom until after the November 2006 surgery, Dr. Powell also testified that if Isom had “had an acute symptomatic tear, whether it was a retear or not,” he would think that it “would be related to an event that had just occurred” and that the 2006 injury “appear[ed] to be a new injury.” Dr. Powell also testified that, based on Dr. Michael’s records and assuming those records were correct, it appeared that what Dr. Michael was treating Isom for was caused or contributed to by the accident that he described as having occurred on July 4, 2006.

Isom testified that, after the January 2005 surgery, he was released to return to work without restrictions and that he worked several months before the 2006 injury without seeing a doctor regarding his shoulder. He testified that, during that time, he had no problems with his shoulder and that he could do anything he wanted to do with it with regard to his job, and he testified that he felt as though he had recovered and healed from the 2003 injury.

Dr. Michael’s medical records related to the treatment of Isom’s 2003 injury largely support Isom’s testimony. Those records indicated that, within three months of having performed the January 2005 surgery on Isom’s shoulder, Isom was experiencing only occasional soreness in his shoulder, that his shoulder pain had resolved or had virtually resolved within eight months of the January 2005 surgery, and that Dr. Michael believed that the January 2005 surgery had been successful. Additional medical records indicated that Dr. Michael released Isom from all work restrictions almost 11 months before the 2006 injury.

The evidence, considered in its totality, supports the trial court’s conclusion that the 2006 injury was compensable separately from the 2003 injury. The above-discussed evidence indicates that the labral tear in Isom’s left shoulder from the June 2003 accident had healed and that the July 4, 2006, accident caused a new labral tear in his left shoulder or, at the very least, resulted in a retearing of the previous labral tear, i.e., an aggravation of the previous tear. See Health-Tex, Inc. v. Humphrey, 747 So.2d 901, 905 (Ala.Civ.App. 1999) (finding that evidence “that [the worker] was not experiencing problems when she first started working for the second company, but that after a few months of performing her repetitive-motion sewing duties she began to experience pain and numbness characteristic of carpal tunnel syndrome,” and the worker’s treating physician’s testimony “that her work at the second company contributed to her subsequent carpal tunnel syndrome,” supported trial court’s conclusion that the worker’s subsequent injury was an aggravation of her prior injury rather than a recurrence of it). See also 1 Terry A. Moore, Alabama Workers’ Compensation § 6:19 (1998 & 2009 Supp.) (“A new injury is a harmful change in the condition of the employee that is different and independent of the original compensable injury, even if located near or on the site of the original compensable injury.”); id. at § 6:20 (“An aggravation occurs when, after the employee has resumed working normally without continuing symptoms, a subsequent work-related factor independently worsens the original compensable injury.”). As a result, we find no merit in the Board’s contention that the evidence supported only a finding that the 2006 injury was a mere recurrence of the 2003 injury, and, in this regard, the trial court’s judgment is due to be affirmed.

Based on the foregoing, we conclude that the trial court’s judgment is supported by substantial evidence and that the Board has failed to demonstrate a basis on which to hold the trial court in error. Accordingly, we affirm the trial court’s judgment.

AFFIRMED.

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

      . Neither party contends that the Act does not apply in this case on the basis that the Board is an agency of a municipality that is exempted from the Act by virtue of § 25-5-13(b), Ala.Code 1975, and the record does not reflect that that exemption is applicable to the Board.

      . During Dr. Powell's deposition, the Board objected to, and moved to strike, Dr. Michael's letter. When the letter appeared on Isom's pretrial list of exhibits, the Board filed an objection to the letter. Isom did not offer the letter as an exhibit at trial. However, at the end of the trial, the Board offered Dr. Powell's deposition into evidence and did not move, pursuant to Rule 32(b), Ala. R. Civ. P., to strike Dr. Michael's letter as an exhibit to the deposition. Having failed to make such a motion and obtain a ruling thereon from the trial court, the letter became a part of the record that the trial court was free to consider. See Glenn v. Vulcan Materials Co., 534 So.2d 598, 601-02 (Ala.1988), overruled, on other grounds, Lowman v. Piedmont Exec. Shirt Mfg. Co., 547 So.2d 90, 95 (Ala.1989). Cf. Bryant v. State Farm Fire & Cas. Ins. Co., 447 So.2d 181, 184 (Ala.1984) ("In conclusion, we add that in the absence of a motion to strike or exclude the witness's answer and a ruling by the trial court on the motion, there is nothing for this Court to review.”).
      In apparent recognition of its oversight in failing to move the trial court to strike Dr. Michael’s letter as an exhibit to the deposition that it offered to the court, the Board moves this court to strike the letter as an exhibit to the deposition of Dr. Powell. For reasons requiring no citation to law, such a request is wholly improper at the appellate-court level. Even if we were not to consider the letter on appeal, however, we conclude that the other evidence of record, discussed herein, supports the trial court’s determination that the 2006 injury is not a recurrence of the 2003 injury but, instead, is a new injury or an aggravation of the 2003 injury.

      . The Board also moves this court to strike the portion of Dr. Powell’s deposition testimony that was based on Dr. Michael’s medical records and opinions. However, the Board, which offered Dr. Powell’s deposition into evidence, did not move to strike that portion of Dr. Powell's testimony in the trial court, and, as a result, the Board will not be heard to argue on appeal that the trial court's judgment cannot be supported by that testimony. See supra note 2.