author: PER CURIAM.

text:
    T.C.T.B.M. v. B.T.
    2090370.
    Court of Civil Appeals of Alabama.
    Sept. 24, 2010.
    Rehearing Denied Nov. 19, 2010.
    Certiorari Denied Jan. 7, 2011 Alabama Supreme Court 1100269.

      Alison Baxter Herlihy, Mobile, for appellant.
    Richard E. Shields of McCleave, Den-son, Shields, LLC, Mobile, for appellee.
   PER CURIAM.

T.C.T.B.M. (“the mother”) appeals from a judgment of the Mobile Juvenile Court that modified custody of the parties’ child, awarded the mother visitation with the child, and ordered the mother to pay child support. We reverse and remand with instructions.

L.T. (“the child”) was born out of wedlock in January 2005 to the mother and B.T. (“the father”); the mother and the father never married. As a result of a paternity and child-support action filed by the mother, the juvenile court entered a judgment on November 17, 2005, in case no. CS-05-5392, that adjudicated the father to be the father of the child, set the father’s monthly child-support obligation at $199 a month, and awarded the father “standard” visitation with the child; however, the father was required to exercise overnight visitation with the child at the paternal grandparents’ home. On December 5, 2008, in case no. JU-08-114.91, the father filed a petition to modify the visitation provisions set forth in the November 2005 judgment. On February 11, 2009, the father amended his petition to modify visitation in case no. JU-09-114.91, and he sought an order modifying custody of the child.

After conducting an ore tenus hearing, the juvenile court entered an order on October 21, 2009, that stated that it had found that there had been a material change in circumstances since the entry of the November 2005 judgment; however, the juvenile court did not enter a final judgment, and it requested that the child’s guardian ad litem make the child’s pediatric and counseling records available to the court. The juvenile court awarded temporary joint legal and physical custody of the child to the mother and the father pending entry of its final judgment. On November 30, 2009, the juvenile court entered a judgment that found that the father had met his burden set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984), and physical custody of the child was transferred to the father. The judgment also awarded the mother standard visitation with the child and set her child-support obligation at $344 a month.

The mother filed a motion to alter, amend, or vacate the juvenile court’s judgment, pursuant to Rule 59, Ala. R. Civ. P. In her motion, the mother challenged the juvenile court’s finding that the father had met his burden of proof pursuant to Ex parte McLendon, the award of standard visitation, and the calculation of her child-support obligation. The mother’s post-judgment motion was denied by operation of law, and she timely appealed. See Rule 1(b), Ala. R. Juv. P.

The mother presents three issues for this court to review on appeal: (1) whether the juvenile court erred in determining that the father met his burden of proof pursuant to the custody-modification standard set forth in Ex parte McLendon; (2) whether the juvenile court erred in awarding the mother only standard visitation with the child; and (3) whether the juvenile court erred in its computation of her child-support obligation.

The following pertinent facts were presented to the juvenile court. The mother, who was 29 years old at the time of the final hearing, testified regarding a visitation dispute between her and the father. According to the mother, during the summer of 2008, she and the father agreed that the father could exercise overnight visitation with the child at the father’s home, despite the restriction set forth in the November 2005 judgment. However, on November 21, 2008, the mother filed a petition for protection from abuse against the father after the child complained after visitation with the father that the father had hit him in the stomach and had made his “food come up.” According to the testimony of the parties, a hearing on the mother’s petition for protection from abuse was held on December 17, 2008, and the mother voluntarily dismissed her petition on the condition that the father abide by the November 2005 judgment, which restricted his overnight visitation with the child to be spent at the paternal grandparents’ home. The mother did not dispute that the father missed two weekend visits with the child as a result of her petition for protection from abuse. The mother stated that the father had not missed any visits with the child since that time.

At the time of the final hearing, the child was enrolled in school in a pre-kin-dergarten program. According to the mother, the child’s grades were wonderful, the child was learning French, and the child was doing “fabulous” at that school. The father stated that he wanted the child to go to a different school, one that was known for their educational facilities; however, the father admitted that he was not familiar with the child’s school on an educational level.

The father testified that the mother regularly changed religious affiliations while he was in a relationship with her — i.e., before the entry of the November 2005 judgment — but that he never discussed the mother’s religious beliefs with her because, he said, “[i]t [is] up to an individual to seek what they think is the truth.” The father submitted an article from a local magazine, that appeared in the October 26, 2005-November 8, 2005 issue of the magazine, that featured the mother. In the article, the mother discussed her religious affiliations, but the mother alleged at the final hearing that the local magazine had misquoted her. The father stated that he did not attend a church.

The mother again changed religious affiliations in June 2007. At the time of the final hearing, the mother had been married for almost two years and she and her husband had a 13-month-old child. The mother met her husband on a Web site around July 2007, and they married in January 2008. The mother stated that the child had spent only two days around her husband before they married. However, according to the mother, her husband and the child had a good relationship and the father had never expressed any complaints about her husband. The mother also stated that her two children got along very well.

The mother testified that she had difficulty communicating with the father because he would not speak to her on the telephone and would only communicate via text messages. The father stated that he would not talk to the mother on the telephone because she had a reputation for being untruthful and because he wanted everything that she said to be in writing. However, he stated that he would promote telephone contact between the child and the mother if he was awarded custody of the child.

The mother stated that she had congenital optic neuropathy with a nystagmus, which basically means that she has poor depth perception; for that reason, she is unable to obtain a driver’s license. However, the mother stated that her condition was not degenerative and that, other than her inability to drive, her condition did not affect her everyday life. She stated that she relied on her husband and her mother for transportation. At the time of the final hearing, the mother worked approximately 20 hours each week at a therapeutic massage parlor, and she earned approximately $1,500 a month. The mother stated that she worked on Mondays from 1:00 p.m. to 6:00 p.m., on Thursdays from 10:00 a.m. to 5:00 p.m., on Fridays from 9:00 a.m. to 3:00 p.m., and on “some” Saturdays or Sundays.

The mother began taking the child to a counselor in December 2008 after the child told her that the father had hit him in the stomach and had made his “food come up.” The mother stated that the child had had nightmares and horrible screaming fits on Sunday nights after he returned from weekend visitation with the father. The mother stated that she paid the child’s counselor $100 for each visit and that she could not afford to take him twice a month. However, even including the child’s school tuition, which was $270 a month, the mother agreed that her monthly income exceeded her monthly expenses. The evidence indicated that the child was not under any course of treatment with his counselor and that the counselor only saw the child to check his progress.

The mother stated that she did not use illegal drugs and that she did not drink alcohol. The mother stated that the father had never expressed any concerns about the way that she raised the child. The father indicated that he thought that the mother might try to take the child out of the country, apparently because the mother had sought his help in obtaining a passport for the child. The mother stated that she had asked the father about getting a passport for the child so that she and the child could visit the mother’s friend in Canada.

The mother stated that she and her mother, the maternal grandmother, were the subject of an investigation by the Alabama Department of Human Resources (“DHR”) in January 2008 after the child, who was three years old at the time, was found “wandering” down the street from the maternal grandmother’s home. However, the mother stated that she was not at her mother’s home at that time and that no one from DHR ever interviewed her about the incident or otherwise did any follow-up to the investigation. The child’s counseling records indicated that the child’s counselor had filed a report with DHR in December 2008 concerning the allegations of abuse made by the child that implicated the father. According to the child’s records, DHR had assigned a caseworker to investigate the father, but nothing in the record on appeal indicates that the father was found to have abused the child.

The father testified that, since the entry of the November 2005 judgment, he had graduated from college with a degree in engineering and had found employment earning approximately $26 an hour. According to the father he was required to work 40 hours a week, which he typically fulfilled from 8:00 a.m. to 5:00 p.m., Monday through Friday. The father bought a three-bedroom, two-and-one-half-bathroom home in February 2008, and, at the time of the final hearing, the father had one roommate, a man who was a manager of an anesthesiologist group at a local hospital. The father testified that he had never hit or injured the child, that he had a great relationship with the child, and that he had unilaterally increased the amount of child support that he paid to the mother from $199 a month to $325 a month in January 2008.

The father stated that he had an extensive family network in the Mobile area that could assist him in caring for the child. The mother’s family-support system apparently consisted of her husband, her mother, her stepfather, her grandfather, and her aunt. He stated that the last time he spent time with the mother’s mother, she had used prescription medication, alcohol, and marijuana. However, he stated that he had not seen the mother’s family since his relationship with the mother ended in April 2005.

The father stated that he sought custody of the child because he felt like he could provide a more stable environment for the child and because he wanted to spend more time with the child. The father stated that he was what had changed since the entry of the November 2005 judgment. He stated that his environment would be better for the child because he lived in a good neighborhood close to schools and a hospital. He stated that the child’s life would be improved because the child would have a set schedule, because he would be available for the child on the weekends, and because he had a driver’s license.

We find the mother’s first issue, whether the father met his burden pursuant to Ex parte McLendon, dispositive of her appeal. This court’s standard of reviewing a judgment modifying custody is well settled:

“When evidence in a child custody case has been presented ore tenue to the trial court, that court’s findings of fact based on that evidence are presumed to be correct. The trial court is in the best position to make a custody determination — it hears the evidence and observes the witnesses. Appellate courts do not sit in judgment of disputed evidence that was presented ore tenus before the trial court in a custody hearing.”

Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala.1996).

In its final judgment, the juvenile court did not set forth any specific findings of fact to support its determination that the father had met his burden pursuant to Ex parte McLendon. Thus, this court must assume that the juvenile court made findings of fact that would support its judgment, unless those findings would be clearly erroneous. Ex parte Bryowsky, 676 So.2d at 1324.

Pursuant to Ex parte McLendon, the father, as the party petitioning to modify custody of the child, was required to prove (1) that he was a fit custodian, (2) that a material change in circumstances affecting the welfare of the child had occurred since the entry of the November 2005 judgment, and (3) that the change in custody would materially promote the best interest and welfare of the child so that the inherently disruptive effect of the proposed change in custody would be outweighed by the positive good resulting from the change. 455 So.2d at 865-66.

Regarding the “material-promotion” prong of the Ex parte McLendon standard, our supreme court has explained:

“ ‘[This] is a rule of repose, allowing the child, whose welfare is paramount, the valuable benefit of stability and the right to put down into its environment those roots necessary for the child’s healthy growth into adolescence and adulthood. The doctrine requires that the party seeking modification prove to the court’s satisfaction that material changes affecting the child’s welfare since the most recent decree demonstrate that custody should be disturbed to promote the child’s best interests. The positive good brought about by the modification must more than offset the inherently disruptive effect caused by uprooting the child. Frequent disruptions are to be condemned.’
“Wood v. Wood, 333 So.2d 826, 828 (Ala. Civ.App.1976).
“It is not enough that the parent show that [he] has ... reformed h[is] lifestyle, and improved h[is] financial position. Carter v. Harbin, 279 Ala. 237, 184 So.2d 145 (1966); Abel v. Hadder, 404 So.2d 64 (Ala.Civ.App.1981). The parent seeking the custody change must show not only that [he] is fit, but also that the change of custody ‘materially promotes’ the child’s best interest and welfare.”

455 So.2d at 865-66.

After a careful review of the record, we conclude that the father faded to meet this burden. The father presented evidence indicating that he could provide a stable home environment for the child. However, the father presented no evidence indicating that the child was living in an unstable environment in the mother’s home, or that the mother did not provide the child with a schedule. Although the father argued that his work schedule allowed him to be available for the child on the weekends, we cannot conclude that the positive good brought about by the father’s ability to spend the entire weekend with the child was sufficient to overcome the inherently disruptive effect that a change in custody would have on a four-year-old child who had lived primarily with the mother since his birth.

The father also presented evidence indicating that the child would benefit by living with him because the father had a driver’s license and the mother did not. However, there was no evidence indicating that the mother’s inability to obtain a driver’s license affected the child in any way. The mother presented undisputed evidence indicating that her husband and her mother met her transportation needs, and there was no indication that they could not do so in the event of an emergency. Furthermore, although the father testified that he wanted to enroll the child in a school that was well known for its educational facilities, the father presented no evidence indicating that the school that the child attended at the time of the final hearing did not provide the child with a good education; in fact, the father admitted that he was not familiar with the child’s school on an educational level. The father did not present any complaints about the mother’s ability to raise the child, her parenting techniques, her husband, or even her oft-changing religious affiliations.

“We readily acknowledge that the trial court was in the best position to evaluate the credibility of the witnesses. See Fell v. Fell, 869 So.2d 486, 494 (Ala.Civ.App. 2008) (noting that the trial court is in the unique position to directly observe the witnesses and to assess their demeanor and credibility). Although it was certainly within the province of the trial court to determine the credibility of the witnesses and to shape its judgment accordingly, that judgment must be supported by the evidence. See Judah v. Gilmore, [804 So.2d 1092 (Ala.Civ.App. 2000) ].”

Bishop v. Knight, 949 So.2d 160, 167 (Ala. Civ.App.2006).

There was much disputed testimony at the ore tenus hearing, and, as stated above, the juvenile court was in the best position to resolve those disputes. However, the fact remains that the record lacks evidence to support a finding that the child’s best interests would be materially promoted by the change in custody. Because we conclude that the juvenile court’s judgment modifying custody of the child is unsupported by the evidence, we must reverse the judgment that awarded custody of the child to the father. In light of the foregoing, we also remand the case with instructions to vacate the portions of the judgment that transferred custody of the child to the father, awarded the mother visitation, and ordered the mother to pay-child support.

REVERSED AND REMANDED WITH INSTRUCTIONS.

Ail the judges concur.

      . The mother's name appears in the record a number of different ways. We have chosen to use initials reflecting the version of the mother’s name that appears in the juvenile court’s final judgment.

      . We conclude that the juvenile court properly exercised jurisdiction to modify its November 2005 judgment. Before the enactment of the current Alabama Juvenile Justice Act ("the AJJA”), § 12-15-101 et seq., Ala.Code 1975, which became effective on January 1, 2009, the juvenile court had continuing jurisdiction to modify a custody judgment made in conjunction with a paternity action pursuant to former § 12-15-32, Ala.Code 1975, and former § 26-17-10(e) Ala.Code 1975. See W.B.G.M. v. P.S.T., 999 So.2d 971, 974-75 (Ala.Civ.App.2008). Both former § 12-15-32 and former § 26-17-10(e) were repealed when the AJJA became effective. See Act No. 2008-2779(a), Ala. Acts 2008; and Act No. 2008-376, Ala. Acts 2008, § 1. Pursuant to § 12-15-117(a), Ala.Code 1975, a provision in the AJJA, the juvenile court now retains continuing jurisdiction only over cases in which “a child has been adjudicated dependent, delinquent, or in need of supervision....” Because the father filed an action to modify the November 2005 judgment in December 2008, before the enactment of the AJJA, we conclude that the juvenile court retained jurisdiction to modify its November 2005 judgment.

      . Throughout the proceedings below, the juvenile court and the parties used both case numbers, JU-09-114.91 and CS-05-5392, to refer to the action initiated by the father on December 5, 2008, and assigned case no. JU-09-114.91. The mother’s appeal was docketed by the clerk of this court as an appeal from JU-09-114.91 and CS-05-5392. Although some of the pleadings and the judgment list both case numbers, the judgment in case no. JU-09-114.91 is what is actually being appealed by the mother.

      . We note that this article was published before the entry of the November 2005 judgment, and nothing in the record indicates that the father became aware of this article only after the entry of the November 2005 judgment.

      . According to the mother, she was married once before she married her current husband. That marriage lasted approximately six months. According to the mother, she divorced her first husband because he was careless with firearms around the child.

      . The mother’s husband is not an American citizen, but, at the time of the final hearing, he had a "green card.”

      . The father’s child-support obligation was subsequently increased, apparently by a court order, to $450 a month.

      . Because the custody-modification issue is dispositive of the mother's appeal, we preter-mit discussion of the remaining issues presented by the mother on appeal.


source: Caselaw Access Project

author: PITTMAN, Judge.

license: Public Domain

text:
    Roger WHITED v. Burnice WHITED.
    2090002.
    Court of Civil Appeals of Alabama.
    Dec. 3, 2010.
    Lisa M. Ivey, Jasper, for appellant.
   PITTMAN, Judge.

Roger Whited (“the former husband”) appeals from a modification judgment that ordered him to pay $750 in monthly periodic alimony to Burnice Whited (“the former wife”).

The parties were divorced by a judgment entered on September 27, 2007. In that judgment, the former husband was ordered to “pay the mortgage payments as they become due pending sale of the home-plaee[,] ... to indemnify the [former w]ife from any liability for payment resulting from debts due as a result of the operation of the [former husband’s businesses], ... [and] to pay the note of the [former w]ife’s Thunderbird.” Although the divorce judgment did not award the former wife any periodic alimony, it specifically reserved that issue, to be considered “upon petition of either party” if the former husband failed to comply with the previously quoted provisions. On May 26, 2009, the former wife filed a complaint seeking a modification of the divorce judgment; she alleged that the former husband had not complied with the pertinent provisions of the divorce judgment and requested an award of periodic alimony.

On August 18, 2009, the trial court conducted an ore tenus proceeding at which both parties testified. The former wife testified that the former husband had failed to retire the debt associated with her motor vehicle and that he had not made the mortgage payments as required by the divorce judgment. In addition, the former wife stated that, when she was finally able to sell the marital residence, she had had to satisfy a $21,000 lien that had been placed on the property in connection with one of the former husband’s failed businesses. She stated that, before she sold the property, she had been forced to sell her jewelry, her motor vehicle, and numerous items awarded to her in the divorce judgment just to keep the property from foreclosure. She also testified that the property had eventually sold for $100,000 less than its appraised value.

Although the former husband denied the former wife’s contentions that he had failed to make any of the court-ordered payments, he admitted that he had not complied with all of the provisions of the parties’ divorce judgment because, he said, he had been badly injured in a motor-vehicle accident and had been unable to work as a commercial-vehicle driver since that time. After testifying that he did not own any real property, he stated that he had signed a quitclaim deed of his interest in the marital residence to the former wife so that she would be able to keep whatever profit was made from that sale.

The former husband stated that, at the time of trial, his only income was a monthly Social Security benefit in the amount of $973. He stated that he had reached an agreement with a convenience-store owner to assume management of a failed store in the hope that he could revitalize the business. The agreement would allow him to keep 50% of the profits once the store began making a profit again. The former husband opined that he would be able to “turn [the store] around” and begin to earn a steady income from that enterprise in the coming year. However, he stated that he had no idea how soon the store could be made profitable.

In addition to the neck and back injuries he had sustained in the accident, the former husband had been diagnosed with prostate cancer just three weeks before trial and would soon require surgical treatment. The former husband stated that he did not have any medical insurance and that his current expenses were barely being met by his monthly benefit payment. The former husband stated that, although his former employer’s workers’ compensation carrier had been paying for his medical bills related to the accident, he did not know whether he would be entitled to additional disability benefits after he had finished recovering from those injuries.

On August 24, 2009, the trial court entered a modification judgment in which the former husband was ordered to begin paying the former wife periodic alimony in the amount of $750 per month beginning the following month and continuing until the former wife died, remarried, or cohabited with a member of the opposite sex. In addition, the former husband was ordered to pay court costs and $1,500 toward the former wife’s attorney fees. The former husband timely appealed.

Trial courts are not “required to modify alimony because of a change in the circumstances of the parties.” Sosebee v. Sosebee, 896 So.2d 557, 560 (Ala.Civ.App. 2004) (citing Kiefer v. Kiefer, 671 So.2d 710, 711 (Ala.Civ.App.1995)). When making an alimony-modification determination, a trial court “should ... consider the earning capacity of each spouse, the payee spouse’s need for alimony, the payor spouse’s ability to pay alimony, and each spouse’s estate.” Sosebee, 896 So.2d at 560; Kiefer, 671 So.2d at 711. In addition, “ ‘the moving party must show a material change in the financial needs of the payee spouse and in the financial ability of the payor spouse to respond to those needs.’ ” Sosebee, 896 So.2d at 560 (quoting Glover v. Glover, 730 So.2d 218, 220 (Ala.Civ.App. 1998)). “The amount awarded to one spouse should not ‘cripple’ the other spouse.” Daugherty v. Daugherty, 579 So.2d 1377, 1380 (Ala.Civ.App.1991); see also Sosebee, 896 So.2d at 560-61, and Rubert v. Rubert, 709 So.2d 1283, 1285 (Ala.Civ.App.1998). Although a trial court’s judgment in an alimony-modification case is presumed correct, this court may reverse a modification judgment if it is not supported by the evidence or is plainly and palpably wrong. See Daugherty and Rubert, supra; see also Newsome v. Newsome, 984 So.2d 463 (Ala.Civ.App. 2007).

Here, the former husband admitted that he had failed to fulfill the terms of the parties’ divorce judgment. Our inquiry does not stop there, however, because the former wife’s burden was to illustrate a need for support and a commensurate ability to pay on the part of the former husband. The bulk of the former wife’s testimony centered on the fact that the former husband had not complied with the financial terms of the parties’ divorce judgment; she did not offer any evidence to indicate that the former husband could afford to pay her alimony. In fact, although the former wife suffered a difficult financial period before she was able to sell the marital residence, she testified that she was earning approximately $800 per month working part time at “Bingo World” and that she received monthly Social Security benefits in the amount of $1,235. Her brief testimony regarding her living expenses indicated that she was easily defraying those expenses.

In all respects, we conclude that the former wife utterly failed to prove a need for periodic alimony at the time of trial. See Sosebee and Kiefer, supra. Moreover, she did not rebut the former husband’s contention that, based upon his health issues and living expenses, he could not afford to pay her alimony until the convenience store was profitable, some time in the future. See Daugherty, 579 So.2d at 1380.

Because the former wife failed to rebut the undisputed evidence indicating that the former husband’s total monthly income of $973 would not enable him to pay any amount of alimony, much less $750 per month, we reverse the trial court’s judgment. In addition, because we are reversing the underlying judgment, the former wife is no longer a prevailing party, which affects the correctness of the trial court’s attorney-fee award. Thus, we also reverse the trial court’s award of costs and attorney fees to the former wife as well.

REVERSED AND REMANDED.

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

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

      . The former wife submitted a copy of the settlement document that indicated that, after paying off the lien, the outstanding mortgage, and her portion of the closing costs, the former wife had netted just over $20,000 from the sale of the marital residence.


author: BRYAN, Judge.

text:
    Brandi Kaye PEPPER (Greeson) v. Forrest Dewayne PEPPER.
    2081131.
    Court of Civil Appeals of Alabama.
    Dec. 3, 2010.

      Christina L. Dixon, Huntsville, for appellant.
    James D. Moffatt of Latham, Moffatt & Wise, P.C., Athens, for appellee.
   On Application for Rehearing

BRYAN, Judge.

The opinion of August 13, 2010, is withdrawn, and the following is substituted therefor.

Brandi Kaye Pepper (Greeson) (“the mother”) appeals from a judgment of the Limestone Circuit Court (“the trial court”) insofar as it modified custody of the parties’ two minor children and awarded Forrest Dewayne Pepper (“the father”) sole physical custody of the children. We reverse.

Procedural History

The parties were divorced by a judgment of the trial court in June 2007. Pursuant to the divorce judgment, which incorporated an agreement of the parties, the parties were awarded joint physical custody of the parties’ children, a boy, born in December 2000 (“the older child”), and a girl, born in June 2004 (“the younger child”) (the older child and the younger child are hereinafter collectively referred to as “the children”). The trial court entered an order on July 1, 2008, that set forth specific visitation times for the father, but the order did not change the parties’ status as joint physical custodians of the children (“the 2008 order”). Pursuant to that order, the father exercised physical custody of the children every first and third weekend of each month, and, when applicable, the fifth weekend of every other month that had a fifth weekend. The father’s weekend visitation was from Friday at 6:00 p.m. until Tuesday at 8:00 p.m. Also, following the second and fourth weekend of each month, the father had physical custody of the children from Monday at 8:00 a.m. until Tuesday at 8:00 p.m. The 2008 order also provided for one full month of visitation in the summer as well as visitation on holidays, birthdays, school breaks, and special family events.

On December 11, 2008, the father filed a petition to modify custody and a petition opposing the relocation of the principal residence of the children, pursuant to § 30-3-169.1, Ala.Code 1975, a part of the Alabama Parent-Child Relationship Protection Act, codified at § 30-3-160 et seq., Ala.Code 1975 (“the Act”). In his petition opposing relocation, the father alleged that he had received a letter from the mother on November 13, 2008, that notified him of her intent to change the principal residence of the children by moving out of state. See Ala.Code 1975, § 30-3-164. The father requested permanent and pen-dente lite primary physical custody of the children. The mother responded to the father’s objection to the proposed relocation of the principal residence of the children and requested that the trial court enter an order that allowed her to move with the children to Winchester, Tennessee, pending a final hearing on the father’s petitions.

The trial court conducted a pendente lite hearing, and on March 13, 2009, the trial court entered a pendente lite order that, pursuant to § 30-3-169.2, Ala.Code 1975, restrained the mother from changing the principal residence of the children. The trial court conducted a final ore tenus hearing on June 8, 2009, and entered a final judgment on June 25, 2009 (“the June 2009 judgment”). Pursuant to that judgment, the father was awarded sole physical custody of the children based on the trial court’s finding that there had been a material change in circumstances. The judgment awarded the parties joint legal custody of the children, awarded the mother visitation with the children, and ordered the mother to pay child support for the children.

The mother filed a motion to alter, amend, or vacate the June 2009 judgment or, in the alternative, a motion for a new trial, pursuant to Rule 59, Ala. R. Civ. P. In her motion, the mother alleged that the father had not demonstrated that there had been a material change in circumstances because she had not moved to Tennessee during the pendency of the proceeding and, she alleged, she had “abandoned” her plans to move to Tennessee. Thus, she argued, the only material change in circumstances alleged and proven by the father, i.e., the proposed change of principal residence of the children, no longer existed. The trial court denied the mother’s postjudgment motion, noting that the mother had failed to present any evidence indicating that she would have been willing to abandon her plans to move to Tennessee. The mother timely appealed.

Issue

The sole issue presented by the mother on appeal is whether the trial court erred by finding that a material change in circumstances existed sufficient to justify modification of custody.

Facts

At the time of the final hearing, the children were ages eight and four years old. It was undisputed that the parties exercised joint legal and physical custody of the children pursuant to the 2008 order; however, the mother maintained that she was the primary caretaker of the children.

The mother married Marvin Greeson in July 2008, and she moved from Limestone County to Huntsville shortly after the 2008 order was entered. At the time of the final hearing, the mother and the children lived in an apartment in Huntsville. The mother and Marvin, who worked as a fireman near Winchester, had obtained a house in Winchester that had three bedrooms, and the mother and Marvin were planning to add a fourth bedroom to the house. According to the mother, she was planning to move to Winchester because Marvin’s ex-wife had been diagnosed with two tumors in her brain stem and, thus, was not able to care for Marvin’s children, who were ages 15 and 17 years old at the time of the final hearing. Marvin’s children apparently lived in or near Winchester, and the mother and Marvin were planning to move to Winchester to assist Marvin’s family in caring for Marvin’s children.

The mother worked as a registered nurse at Huntsville Hospital and she worked three 12-hour shifts each week and every third weekend. The mother testified that she would continue to work at Huntsville Hospital after she relocated to Winchester and that it took approximately 50 minutes to drive from her home in Winchester to Huntsville Hospital. The mother stated that she is able to schedule her workdays around Marvin’s work schedule so that either she or Marvin is able to be home with the children, if needed. The mother stated that Marvin’s parents were available to care for the children in Winchester if both she and Marvin were unable to do so.

The mother testified that the children had enjoyed themselves during previous visits to Winchester and that they had attended church and family gatherings there. She admitted that only Marvin’s family lived in or near Winchester and that most of her immediate family lived in Limestone County, although some of her immediate family lived in Morgan County. The mother acknowledged that the friends and family of the children were in Alabama and that they attend church with the father in Alabama.

The mother presented a proposed visitation schedule that permitted the father to have an additional weekend visitation in lieu of his current visitation schedule. The mother stated that she was requesting that, other than visitation, prior orders regarding custody and child support remain the same. The mother stated that to drive from Winchester to East Limestone Road, where the parties exchanged the children, took approximately 70 minutes. The mother stated that the children were not involved in any extracurricular activities and that she knew of no reason that the schools in Winchester could not educate the children as well as the schools in Alabama. The mother admitted that most of her knowledge about the schools that the children would be attending in or near Winchester came from Marvin or his family members.

The mother testified that she was concerned about the father’s having primary physical custody of the children because she had heard the father use racial epithets in front of the children. The mother stated that she had not heard the father use racial epithets until after the children were born. The father denied being a racist and using racial epithets.

The father lived in Limestone County and was employed as a machine inspector for the Alabama National Guard in Huntsville. His work hours were Tuesday through Friday, from 7:00 a.m. until 5:30 p.m. The father testified that his mother, the paternal grandmother of the children, was able to help him get the older child to school on days that he had to work. The younger child was not in school yet, and the father testified that he kept the younger child at home with him on Mondays and that the paternal grandmother cared for the younger child on Tuesdays while he was at work. According to the father, the older child had attended Creekside Elementary School (“Creekside”) before the entry of the 2008 order because the mother lived in Limestone County at that time. However, the older child had to change schools as a result of the mother’s move to Huntsville in 2008. The father testified that his house was for sale at the time of the final hearing and that, if he was awarded custody and his house had not sold by August 2009, he and the children would live temporarily with the paternal grandmother so that the older child could attend Creekside in the fall of 2009.

The father testified that he did not have any family in Winchester, and, to his knowledge, the mother did not have any family in Winchester either. The father testified that he was able to care for and meet the needs of the children. The father stated that he had been involved with parent/teacher conferences, field trips, and “awards day” at the older child’s schools and that he maintained consistent telephone visitation with the children on days that he did not have physical custody. The father stated that he wanted physical custody of the children or, in the alternative, that he wanted the children to remain in Madison County with the mother so that he could maintain the visitation schedule that he had been exercising at the time of the final hearing.

Standard of Review

“Our standard of review is well settled. A trial court’s judgment based on ore tenus evidence will be presumed correct and will not be reversed on appeal absent a showing that the trial court acted outside its discretion or that the judgment is unsupported by the evidence so as to be plainly and palpably wrong. Scholl v. Parsons, 655 So.2d 1060, 1062 (Ala.Civ.App.1995). However, when an appellate court is presented with an issue of law, we review the judgment of the trial court as to that issue de novo. Ex parte Perkins, 646 So.2d 46 (Ala.1994).”

Henderson v. Henderson, 978 So.2d 86, 39 (Ala.Civ.App.2007).

Discussion

On appeal, the mother argues that the trial court erred by finding that the father had demonstrated that a material change in circumstances had occurred to justify a modification of custody. The mother does not argue that an actual change of the principal residence of the children would not have constituted a material change in circumstances. See Marsh v. Smith, 37 So.3d 174, 178 (Ala.Civ.App.2009) (concluding that “a change in the principal residence of a child constitutes, ipso facto, a ‘material change in circumstances’ ”). Instead, the mother argues that because she was never permitted to change the principal residence of the children either by temporary order or by final judgment, see § 30-3-169.3(a), Ala.Code 1975, there existed no material change of circumstances and, therefore, custody of the children should not have been modified.

Section 30-3-169.3(a) provides:

“Upon the entry of a temporary order or upon final judgment permitting the change of principal residence of a child, a court may consider a proposed change of principal residence of a child as a factor to support a change of custody of the child. In determining whether a proposed or actual change of principal residence of a minor child should cause a change in custody of that child, a court shall take into account all factors affecting the child, including, but not limited to, the following....”

(Emphasis added.)

Section 30-3-169.3(a) goes on to list 17 factors for a trial court to consider when determining whether a proposed change of principal residence of a child, i.e., a change made after entry of a temporary order, or an actual change of principal residence of the child, i.e., a change made after entry of a final judgment, should result in a change of custody. A plain reading of § 30-3-169.3 allows a trial court to consider a proposed change of principal residence of a child as a factor to support a change of custody only “[ujpon the entry of a temporary order or upon a final judgment permitting the change of principal residence of a child.” See Ex parte T.B., 698 So.2d 127, 130 (Ala.1997) (“When the language of a statute is plain and unambiguous, as in this case, courts must enforce the statute as written by giving the words of the statute their ordinary plain meaning — they must interpret that language to mean exactly what it says and thus give effect to the apparent intent of the Legislature.”).

The record clearly indicates that the trial court did not permit the mother to temporarily change the principal residence of the children during the pendency of the proceedings. The trial court’s final judgment did not make specific findings of fact regarding whether the mother had met her burden of rebutting the presumption found in § 30-3-169.4—that a change of principal residence of the children was not in the best interests of the children. However, the Act does not require the trial court to make specific findings of fact in its judgment, see Clements v. Clements, 906 So.2d 952, 957 (Ala.Civ.App.2005), and, in the absence of specific findings of fact, “‘this court must assume that the trial court made those findings necessary to support its judgment.’ ” Id. (quoting Steed v. Steed, 877 So.2d 602, 603 (Ala.Civ. App.2003)). Thus, because the trial court modified custody of the children, we must assume either that the trial court determined that the mother should have been permitted to change the principal residence of the children or that the trial court found that the father had otherwise demonstrated that custody of the children was due to be modified without consideration of the proposed change of the principal residence of the children. Our review of the evidence presented by the father reveals insufficient evidence to support a finding that a material change in circumstances affecting the welfare of the children had occurred since the entry of the last custody judgment. See C.D.K.S. v. K.W.K., 40 So.3d 736, 740 (Ala.Civ.App.2009) (discussing the burden of proving a material change in circumstances in a custody-modification case).

Accordingly, we must assume that the trial court determined that the mother should have been permitted to change the principal residence of the children. In doing so, we must also assume that the trial court concluded that the mother had met her burden pursuant to § 30-3-169.4 and that, after the burden shifted to the father, the father failed to meet his burden of proving that the change in principal residence of the children was not in their best interests. We must assume that the trial court made those findings of fact because only those findings will support a determination that the mother had demonstrated that she should be permitted to change the principal residence of the children and, thus, only those findings would potentially support the trial court’s custody-modification judgment. See § 30-3-169.3.

Our review of the record reveals that the mother presented little evidence to rebut the presumption that a change of principal residence of the children would not be in the best interests of the children. It was undisputed that the father’s and the mother’s families lived in or near Limestone County and that the children did not have any family, other than Marvin’s family, in Winchester. The evidence indicated that the children spent a significant amount of time with the father and that the father was involved in the daily lives of the children. The evidence also indicated that the maternal and paternal grandmothers of the children, who lived in Limestone County, had assisted in the care of the children when the mother and the father were unable to do so. The mother did not present any evidence to support a finding that the children would have more educational or cultural opportunities in Winchester. Furthermore, the evidence was undisputed that the only reason that the mother wanted to relocate to Winchester was for the benefit of Marvin’s family. We find the mother’s desire to assist Marvin and his family noble, but the mother was still required to rebut the presumption that a change of the principal residence of the children was not in the best interests of the children. In light of the evidence of the strong involvement of the father in the lives of the children compared to the lack of evidence of any benefit provided to the children by relocating to Winchester, we conclude that the evidence presented by the mother was insufficient to support a finding that the mother had rebutted the presumption found in § 30-3-169.4.

Accordingly, the trial court could not have concluded that the mother should have been permitted to change the principal residence of the children. Because the mother was not permitted to change the principal residence of the children, the trial court could not have modified custody of the children based only on the mother’s intent to relocate to Tennessee.

The father argues that the mother failed to present testimony at the final hearing indicating that she was willing to remain in Huntsville if the trial court concluded that she could not change the principal residence of the children. However, the plain language of § 30-3-169.3 reveals an implicit presumption that no material change in circumstances exists if the relocating parent is not permitted, by temporary order or by final judgment, to change the principal residence of the children. As then Judge Murdock pointed out in his special concurrence in Toler v. Toler, 947 So.2d 416, 423 n. 3 (Ala.Civ.App.2006), “[i]n a case in which the custodial parent subsequently chooses to remain in the same locale with the child, the cause for the proposed change of custody would be eliminated and the case would become moot, at least to that extent.”

In his application for rehearing, the father argues that our conclusion implies that a trial court should refrain from granting custody to one parent or the other until the relocating parent has established himself or herself in a new location. We reject the father’s interpretation of our holding. Our decision is based on the plain language of § 30-3-169.3.

Conclusion

The judgment of the trial court is due to be reversed. Accordingly, we reverse the judgment of the trial court and remand the cause with instructions to vacate the June 2009 judgment.

The mother’s and the father’s requests for an award of their attorney’s fees on appeal are denied.

APPLICATION FOR REHEARING OVERRULED; OPINION OF AUGUST 13, 2010, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED WITH INSTRUCTIONS.

PITTMAN and THOMAS, JJ., concur.

THOMPSON, P.J., and MOORE, J., concur in the result, without writings.

      . The divorce judgment did not set forth which party was awarded legal custody of the children.

      . Section 30-3-169.4, Ala.Code 1975, provides, in pertinent part:
      "In proceedings under this article ..., there shall be a rebuttable presumption that a change of principal residence of a child is not in the best interest of the child. The party seeking a change of principal residence of a child shall have the initial burden of proof on the issue. If that burden of proof is met, the burden of proof shifts to the non-relocating party.”

      . This determination is based on our conclusion that there was not sufficient evidence in the record to support a judgment modifying custody on any other grounds.

      . In his application for rehearing, the father argues that this court is "assuming critical procedural history” by assuming that the trial court determined that the mother overcame the presumption against allowing a parent to change the residence of the children. We disagree. We acknowledge that it is possible that the trial court could have properly concluded that the mother had not met her burden of overcoming the presumption found in § 30-3-169.4. However, in that event, the trial court was still not permitted to consider changing custody of the children based on the proposed change of their principal residence because there was no temporary order or final judgment permitting the mother to change the principal residence of the children. See § 30-3-169.3. Furthermore, as discussed supra, the trial court could not have modified custody on other grounds because the father did not present sufficient evidence to support a judgment modifying custody of the children. Cf. Patchett v. Patchett, 469 So.2d 642, 644 (Ala.Civ.App.1985) (a case decided before the enactment of the Act in which this court concluded that "the trial court abused its discretion when it decreed that the [mother]'s intent to move [wa]s a material change of circumstances that would justify automatically changing custody of the child to the father when and if the [mother] moves”).


text:
    Dennis E. BLASDEL v. Jennifer L. BLASDEL.
    2090697.
    Court of Civil Appeals of Alabama.
    Dec. 10, 2010.

      Joan-Marie Dean, Huntsville, for appellant.
    John M. Totten of Totten & Christian, P.C., Athens, for appellee.
   BRYAN, Judge.

Dennis E. Blasdel (“the husband”) appeals from a judgment entered by the Limestone Circuit Court (“the trial court”) that divorced him from Jennifer L. Blasdel (“the wife”) insofar as the judgment divided the parties’ property.

Procedural History

This- is the second time these parties have appeared before this court. In Blasdel v. Blasdel, 27 So.3d 1288 (Ala.Civ.App. 2009), we dismissed the husband’s appeal as being from a nonfinal judgment because the trial court had not finally resolved the issue of child support in its initial divorce judgment.

The record on appeal reveals the following. The parties married in February 1995 and separated in August 2007. The husband sued the wife for a divorce and alleged that the parties had entered into a valid antenuptial agreement and asked for a division of property pursuant to that agreement. The husband also stated that he and the wife jointly owned a corporation known as Triangles Energy Consulting, Inc. (“TEC”), and he asked the trial court to “award [the parties] an interest in the ... assets and debts the corporation has in accordance with the percentage of ownership each party holds” in the corporation. The wife filed a counterclaim for a divorce, and she denied that there was a valid and enforceable antenuptial agreement. Regarding the parties’ interests in TEC, the wife requested that the trial court award each party an interest in the assets and debts of the corporation in accordance with the percentage of ownership each party held in the corporation.

The husband filed a motion for a partial summary judgment, seeking an order that the parties’ antenuptial agreement was valid and enforceable in the divorce action. After a hearing, the trial court granted the husband’s motion and held that the ante-nuptial agreement was valid and binding on the parties. That agreement stated, in pertinent part:

“NOW, THEREFORE, for and in consideration of said marriage contemplated by the parties and the mutual covenants and agreements herein, and other good and valuable consideration as set forth herein, the parties hereto do hereby agree as follows ...:
“1. PARTIES hereto do agree that the following is and shall remain the sole, separate and unique property of [the husband] and such property is the sole, separate and unique property of [the husband] at the time of entrance into this Agreement:
“See Exhibit ‘A’ attached hereto for a list of property.[]
“All of which is hereinafter referred to as ‘PROPERTY OF THE [HUSBAND].’
“2. PARTIES hereto do agree that the following is and shall remain the sole, separate and unique property of [the wife] and such property is the sole, separate and unique property of [the wife] at the time of entrance into this Agreement:
“See Exhibit ‘B’ attached hereto for a list of property.[]
“All of which is hereinafter referred to as ‘Property of the [wife]’
“4. ... The parties hereto ... agree that the property of [the husband] shall remain the sole, separate and unique property of [the husband], even though the same may be converted into a different form by the sale, disposal or other exchange of the property of the [the husband] and that the property of the [the wife] shall remain the sole, separate and unique property of the [the wife], even though the same may be converted into a different form by the sale, disposal or other exchange of the property of the [the wife]. Property of the [the husband] shall not be subject to a claim of any type by [the wife] in the event of termination of this marriage by death or divorce, and property of the [the wife] shall not be subject to a claim of any type by the [the husband] in the event of termination of this marriage by death or divorce.
“5. Any property, real or personal, purchased or accumulated after the marriage and held in the parties’ joint names shall not be controlled by this Agreement.
“6. ... If ... this marriage should become dissolved by divorce, neither party shall hold or claim any interest or part in the estate or property of the other by the way of curtesy, dower, homestead, family allowance, or other rights and will make no claim to the individually owned property of the other in any divorce proceedings ....
“14. THIS AGREEMENT limits and fixes the rights of both parties in the property now owned or hereafter acquired by either, whether the marriage relationship is terminated by death, legal proceedings, or otherwise.”

(Capitalization in original.)

After conducting an ore tenus hearing, the trial court entered a judgment of divorce. In that judgment, the trial court awarded the parties joint legal custody of their child, awarded the husband sole physical custody of the child, and awarded the wife specific visitation. The husband was awarded the parties’ interests in TEC, and the wife was awarded $100,000 for her interest in TEC. The trial court found that the parties had a joint interest in 32 pieces of personal property, and the husband was awarded that personal property. The trial court ordered the husband to pay the wife $35,000 as her equitable interest in the 32 pieces of jointly owned personal property awarded to the husband. The trial court also awarded the wife several pieces of personal property, including a 1998 Mercedes automobile (“the Mercedes”). Any personal property not specifically awarded to either party was awarded to the husband.

Neither party filed a postjudgment motion, and the husband timely appealed. As stated above, this court dismissed the husband’s first appeal as being from a nonfi-nal judgment. See Blasdel v. Blasdel, supra. The trial court subsequently entered an order requiring the wife to pay child support to the husband and establishing the wife’s child-support arrearage. The husband timely filed an appeal from the final judgment of divorce.

On appeal, the husband raises three issues for this court’s review: (1) whether the trial court erred by awarding the wife $100,000 for her interest in TEC; (2) whether the trial court erred by awarding the wife the Mercedes; and (3) whether the trial court erred by awarding the wife $35,000 for her interest in personal property awarded to the husband.

This court’s standard of reviewing a division of property pursuant to a judgment of divorce following ore tenus proceedings is well settled:

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

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

On appeal, the husband first argues that the trial court erred by awarding the wife $100,000, which represented the value of the wife’s interest in TEC. It was undisputed that the antenuptial agreement did not apply to the division of the parties’ interests in TEC. The wife owned a 51% interest in TEC, and the husband owned a 49% interest in TEC. The husband, who worked in the nuclear-engineering field, organized TEC, which was a consulting company for power-related companies, in such a manner so that he could take advantage of incentives offered to minority-owned corporations. The husband maintained that, despite the wife’s majority ownership of TEC, the corporation was based on his consulting skills and that TEC would not exist without him. He further alleged, and the wife disputed, that the wife contributed very little to the business activity of TEC.

Roan Bradley, a certified public accountant that prepared tax documents for TEC and for the parties in their individual capacities, testified that she was not qualified to make a valuation of TEC. During two days of trial, the parties presented the trial court with numerous financial documents and financial summaries in an effort to present evidence of the value of TEC. The wife unequivocally stated that she was not interested in controlling TEC after the parties divorced.

The husband argues that the trial court’s determination of the value of the wife’s 51% interest in TEC is unsupported by the evidence and that it must be reversed. He also argues that the trial court should have valued TEC using the methods discussed in Shewbart v. Shewbart, 19 So.Sd 223 (Ala.Civ.App.2009). In Shew-bart, this court reversed a trial court’s valuation of a sole proprietorship because the trial court had failed to consider all the assets of the sole proprietorship, including income derived from the business, when making a determination of its fair-market value. 19 So.Sd at 232-33. In doing so, this court quoted the supreme court’s decision in Birmingham News Co. v. Horn, 901 So.2d 27, 65-66 (Ala.2004) (overruled on other grounds by Horton Homes, Inc. v. Shaner, 999 So.2d 462 (Ala.2008)), which recognized the following:

“ ‘ “It is well accepted that the fair market value of a privately held business is estimated to be the largest of the values determined by the following three methods: []
“ ‘ “(1) Income Approach: the net present value of the business’s profits;
“ ‘ “(2) Asset Approach: the difference between the market value of its assets and liabilities; or
“ ‘ “(3) Market Approach: the comparable fair market value of the business as determined by either comparable publicly traded corporations or comparable companies purchased in whole. Unless the company has significant asset holdings such as real estate, securities, or natural resources, the first or third method usually generates the largest value.”
‘“George P. Roach, Correcting Uncertain Prophecies: An Analysis of Business Consequential Damages, 22 Rev. Litig. 1, 11-12 (Winter 2003) (emphasis added; footnotes omitted).’ ”

19 So.3d at 232.

According to the husband, if the trial court had used the income approach, TEC’s value would have been $43,078.08 (the net income for the first quarter of 2008 ($10,769.52) multiplied by 4 = $43,078.08). Using the asset approach, he argues, TEC’s value would have been negative $100,306.48 (total assets reported in the first quarter of 2008 ($72,417.40) minus total liabilities reported in the first quarter of 2008 ($172,723.88) = negative $100,306.48). He also argues that insufficient evidence was presented for the trial court to make a determination of the value of TEC pursuant to the market approach. Thus, he argues, the wife was entitled to, at most, $21,969.82 (51% of $43,078.08) as the value of her 51% interest in TEC.

Our review of the record reveals that the husband never argued to the trial court that TEC should be valued using any of the methods discussed in Birmingham News. It is well settled that this court will not reverse a trial court’s judgment on the basis of an argument that was not first presented to the trial court. See Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992). (“This Court cannot consider arguments raised for the first time on appeal_”).

At the final hearing, the majority of the testimony regarding the financial condition of TEC was presented by Bradley. From her testimony it was clear that the parties, from 2003 through 2007, had earned substantial income from TEC, including salary and income distributions. However, the husband also testified that, at the time of the final hearing, TEC was “upside down” and that TEC had a negative net worth of approximately $100,000.

Our review of the evidence presented by the parties fails to lead us to evidence supporting the trial court’s judgment. Although the trial court is generally afforded broad discretion in making factual determinations in ore tenus proceedings, we are unable to ascertain, from our review of the record, how the trial court determined that the value of the wife’s 51% interest in TEC was $100,000. Accordingly, we must reverse that aspect of the divorce judgment and remand the cause with instructions to the trial court to reconsider its valuation of the wife’s interest in TEC and to enter a new judgment indicating the method by which the value of the wife’s 51% interest in TEC is determined. Cf. Mullins v. Sellers, 58 So.3d 817, 823 (Ala.Civ.App.2010) (reversing a judgment awarding child-support ar-rearage because this court could not determine from the record on appeal how the trial court arrived at its child-support-arrearage award). Because we are reversing the aspect of the divorce judgment that sought to equitably divide the jointly owned property of the parties, we must also reverse those aspects of the divorce judgment that divided the remainder of the jointly owned property of the parties so that the trial court can reconsider its property division in light of its proper valuation of the wife’s interest in TEC. See Grelier v. Grelier, 44 So.3d 1092 (Ala.Civ.App.2009).

Next, the husband argues that the trial court erred by awarding the wife the Mercedes because it was titled in his name and thus, pursuant to the antenuptial agreement, the wife had no claim to that property. At the final hearing, the wife testified that the husband had purchased the Mercedes using funds from TEC and that the husband had given her the Mercedes as a Christmas gift. The husband denied giving the Mercedes to the wife as a gift and testified that the title to the Mercedes was in his name. Neither party produced the title to the Mercedes at trial. In his brief on appeal, the husband does not address the implications of the wife’s testimony that the Mercedes was a gift to her from the husband. It is well settled that the trial court, as the finder of fact in ore tenus proceedings, is in the best position to resolve disputed testimony. See Friedman v. Friedman, 971 So.2d 23, 28 (Ala.2007). Based on the evidence presented by the parties, the trial court could have believed the wife’s testimony over the husband’s testimony, and, thus, the trial court could have concluded that the husband had given the wife the Mercedes as a gift. Accordingly, once the husband gave the wife the Mercedes as a gift, it was no longer his individually owned property. Thus, based on the argument presented by the husband on appeal, we conclude that the trial court was not plainly or palpably wrong in awarding the wife the Mercedes. Cf. Klyce v. Klyce, 429 So.2d 1081 (Ala.Civ. App.1983) (relying on the presumption of correctness attendant to findings of fact in ore tenus proceedings, this court affirmed a trial court’s award of a vehicle to the wife in a divorce action when title to the vehicle was in the name of the husband’s closely held corporation because the wife testified that the husband had given her the vehicle as a gift).

Finally, the husband argues that the trial court erred by considering certain pieces of personal property to be jointly owned when it awarded the wife $35,000 as her equitable interest in the personal property awarded to the husband. In the divorce judgment, the trial court found that the husband and the wife had a joint interest in 32 individual items of personal property, including: a 2005 Chevrolet truck and a 1995 Cadillac automobile that were owned by TEC; a 2000 Corvette automobile; a Sea Ray Cruiser boat; and a Ski Nautique 21 boat (the Sea Ray Cruiser and the Ski Nautique 21 will hereinafter be referred to collectively as “the boats”).

At the final hearing, the husband initially testified that the Corvette was titled in the name of TEC; he later testified that he had paid for the Corvette with funds from TEC, that those funds were attributed to him as income, and that the title to the Corvette was in his name. The wife testified that the Corvette was purchased with funds from TEC, but she made no claim that her name was on the title to the Corvette. Bradley testified that only the Cadillac and the Chevrolet truck were listed as assets of TEC. Neither party was able to produce the title to the Corvette at trial. Regarding the boats, the husband testified only that the boats were registered in his name; neither party testified regarding the ownership of the boats.

The husband argues that because the Chevrolet truck and the Cadillac were owned by TEC, the trial court erred by including them when determining the wife’s equitable interest in property that he was awarded because he was already required to pay the wife for her interest in TEC. He also argues that the Corvette and the boats were part of his individually owned property, that the wife did not have a joint interest in those particular items of personal property, and that those items should not have been considered by the trial court when determining the wife’s equitable interest in the property awarded to the husband. In response, the wife argues that, because she had a joint interest in TEC, the trial court did not err in including the Cadillac, the Chevrolet truck, and the Corvette in its determination of her equitable interest in the property awarded to the husband because each of those vehicles was purchased with funds from TEC. She further argues that the husband failed to present sufficient evidence of his individual ownership of the boats.

We agree that the trial court should not have considered the Chevrolet truck or the Cadillac in its determination of the wife’s equitable interest in the personal property awarded to the husband because those vehicles were owned by TEC and should have been included in the determination of the value of the wife’s interest in TEC. We must also agree that the evidence produced at trial does not support a conclusion that the wife had a joint interest in the Corvette. Even if the trial court believed the wife’s testimony that the Corvette had been purchased by TEC, as we stated above the trial court should have included the value of the Corvette in its determination of the value of the wife’s interest in TEC. Regarding the boats, however, the trial court could have concluded that the husband’s testimony that he had registered the two boats in his name was insufficient evidence that the boats were owned by the husband in his individual capacity.

Accordingly, we conclude that the trial court erred by considering the Chevrolet truck, the Cadillac, and the Corvette to be jointly owned property for purposes of determining the wife’s equitable interest in the 32 pieces of jointly owned property awarded to the husband. On remand, the trial court should reconsider the evidence presented and determine whether the Corvette was owned by TEC or by the husband in his individual capacity, and award the property accordingly.

Conclusion

We affirm that part of the divorce judgment that awarded the wife the Mercedes. However, regarding the trial court’s division of jointly owned property and its valuation of the wife’s interest in TEC, we reverse the judgment and remand the cause for further proceedings consistent with this opinion.

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

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

      . Exhibit "A" of the parties’ antenuptial agreement contained a list of real and personal property owned by the husband before the parties married. At the time the parties entered into the antenuptial agreement, the husband’s real and personal property was valued at $193,300.

      . Exhibit "B’’ of the parties’ antenuptial agreement contained a list of personal property owned by the wife before the parties married. At the time the parties entered into the antenuptial agreement, the wife's personal property was valued at $3,000.

      . But see Grelier v. Grelier, 44 So.3d 1092 (Ala.Civ.App.2009), where this court determined that, in the context of valuing a divorcing spouse’s interest in a closely held business organization, a trial court should not apply a minority or marketability discount to the fair value of the business organization.

      . However, we make no determination of whether there was sufficient evidence for the trial court to conclude that the 2000 Corvette was purchased by and, therefore, was an asset of TEC.

      . We note that, typically, when this court must reverse one part of a divorce judgment regarding the equitable division of jointly owned property, such as TEC, we remand the case with instructions for the trial court to reconsider its entire division of jointly owned property without discussing other aspects of the division of marital property (or, as the case may be, alimony). However, this case is somewhat unique because the property division in the divorce judgment was, in some respects, subject to the antenuptial agreement, while other aspects of the property division were not controlled by the antenuptial agreement. Furthermore, the issues raised by the husband in this particular appeal sought review of issues that were only indirectly related the trial court’s equitable division of jointly owned property. Thus, we concluded that the most appropriate manner to handle this particular appeal was to address each of the substantive issues raised by the husband. However, our instructions on remand clarify that the trial court should reconsider its entire division of jointly owned property and that it should make an equitable division of the jointly owned property in light of this decision.


text:
    Scott Alan ANDERSON v. Annette Lynn ANDERSON. Ex parte Scott Alan Anderson. (In re Scott Alan Anderson v. Annette Lynn Anderson).
    2090265 and 2090645.
    Court of Civil Appeals of Alabama.
    Dec. 10, 2010.
    Certiorari Denied Jan. 7, 2011 Alabama Supreme Court 1100355.

      Joan-Marie Dean, Huntsville, for appellant/petitioner Scott Alan Anderson.
    Dinah P. Rhodes of Rhodes & Creech, Huntsville, for appellee/respondent Annette Lynn Anderson.
   On Application for Rehearing in Case No. 2090265

BRYAN, Judge.

The opinion of September 17, 2010, is withdrawn, and the following is substituted therefor.

Scott Alan Anderson (“the husband”) appeals from a judgment of the Morgan Circuit Court that divorced him from Annette Lynn Anderson (“the wife”), and he petitions this court for a writ of mandamus directing the trial court to grant his request for a temporary restraining order, which sought to prevent the wife from changing the principal residence of the parties’ two minor children. We dismiss the husband’s appeal as being from a non-final judgment, and we grant the husband’s petition for writ of mandamus.

Procedural History

On April 9, 2009, the husband filed a complaint for a divorce alleging that he and the wife had married on October 2, 1999, and that two children had been born of the marriage: a boy, born in November 2001, and a girl, born in January 2005 (hereinafter referred to collectively as “the children”). The husband further alleged that he was entitled to a divorce on the ground of physical cruelty, and he requested custody of the children, an award of child support, and division of the parties’ property and debts.

The wife filed an answer to the husband’s complaint and asserted that the breakdown of the marriage was due to the husband’s adultery. The wife also filed a counterclaim for a divorce and sought custody of the children, an award of child support, permission to move with the children to North Carolina, an equitable division of the parties’ property and debts, an award of periodic alimony, and an award of her attorney’s fees. The wife subsequently filed an amendment to her counterclaim for a divorce requesting an award of 50% of the husband’s retirement benefits and arguing, among other things, that Ala. Code 1975, § 30-2-51, was unconstitutional because it deprived the wife of equal protection of the law and due process afforded under the United States Constitution and the Constitution of the State of Alabama. The wife served the attorney general pursuant to Ala.Code 1975, § 6-6-227, and the attorney general filed an acceptance and waiver of his right to be heard.

In August 2009, the trial court conducted an ore tenus hearing on the parties’ pending complaints for a divorce and on the pending contempt petitions that had been filed by both parties. On September 29, 2009, the trial court issued an order finding Jessica Slocumb, the husband’s paramour, in contempt of court for her failure to appear at the parties’ divorce trial.

On October 7, 2009, the trial court entered a judgment divorcing the parties. In its judgment, the trial court stated:

“The parties appeared in court, represented by their attorneys, and presented evidence and testimony in open court. After the presentation of the evidence, the Court held a show cause hearing due to the failure of a witness, Jessica Slo-eumb, to appear at trial in response to a subpoena served upon her by the [wife]. At said show cause hearing, Jessica Slo-cumb appeared with her attorney and presented testimony, including testimony that she was involved in a sexual relationship with the [husband] and was pregnant with his child, that she had experienced prior miscarriages of the [husband’s] child, that she used the [husband’s] last name, even though she was not married to him, and that she was wearing a ring given to her by the [husband] on her left ring finger. The testimony of Jessica Slocumb gave the Court no confidence in the credibility of the [husband’s] testimony presented at trial. Upon consideration of the same, the Court does hereby ORDER, ADJUDGE and DECREE as follows....”

The trial court divorced the parties on the ground of the husband’s adultery, awarded the parties joint legal custody of the children, awarded the wife sole physical custody of the children, and awarded the husband “standard” visitation with the children. The judgment also stated:

“The [wife]’s request to move the residence of the children more than 60 miles from the current marital residence is granted, and the [wife] shall be allowed to do so should she deem it appropriate for her and the children. In said event, the [wife] shall provide the [husband] with the children’s new residence address and telephone number, and the name and address of the children’s schools. In said event, the [husband] shall have visitation with the children in accordance with the Court’s Standard Out of State Schedule, attached hereto. ...”

Among other things, the judgment ordered the husband to pay $2,500 a month in child support, $2,500 a month for 60 months in periodic alimony to the wife, and $12,424.06 to the wife for payment of her attorney’s fees. The judgment further divided the parties’ property and debts and awarded the wife one-half of the value of the husband’s retirement benefits.

The husband filed a motion to alter, amend, or vacate the judgment pursuant to Rule 59, Ala. R. Civ. P., and requested a hearing on his postjudgment motion. The husband argued that the trial court had wrongfully considered the testimony heard at Jessica Slocumb’s contempt hearing because the taking of evidence in the parties’ divorce trial had closed on August 12, 2009, the last day of the ore tenus hearing in the divorce action. The husband also challenged, among other things, the award of sole physical custody of the children to the wife; the permission granted to the wife to relocate the children more than 60 miles from the marital residence, alleging that it was contrary to provisions of the Alabama Parent-Child Relationship Protection Act, codified at Ala.Code 1975, § 30-3-160 et seq. (“the Act”); the award of child support; the award of periodic alimony; the division of marital property and debts; and the award of 50% of his retirement benefits to the wife, because the parties had not been married for 10 years.

The trial court issued an order that granted the husband’s postjudgment motion insofar as the husband argued that the trial court had wrongfully considered the testimony from Jessica Slocumb’s contempt hearing. The trial court set a hearing “to reopen the case for the presentation of additional testimony relating to the [husband]’s credibility, which is the only issue the Court considered at the show cause hearing previously held.” The trial court denied all other relief requested in the husband’s postjudgment motion. The husband subsequently filed an objection to holding an evidentiary hearing and argued that the trial court did not have jurisdiction to amend the divorce judgment because it had lost jurisdiction over the case in light of the fact that it had denied the husband’s requested postjudgment relief related to the divorce judgment. The husband argued that additional testimony regarding the husband’s credibility was rendered irrelevant by the trial court’s order. The husband timely filed his notice of appeal on December 16, 2009.

On February 16, 2010, the husband filed an emergency motion for a temporary restraining order in response to receiving notice by the wife, on January 28, 2010, that she intended to move with the children to Sturgeon Bay, Wisconsin, on February 27, 2010; the husband did not notify the wife when he filed the motion. On February 25, 2010, the trial court entered an order denying the husband’s motion for a temporary restraining order, citing the provision in the parties’ divorce judgment that permitted the wife to move more than 60 miles from the location of the marital residence. On April 9, 2010, the husband filed a petition for a writ of mandamus, arguing that this court should grant his petition and order the trial court to issue a temporary restraining order preventing the wife from changing the principal residence of the children to Sturgeon Bay. In his petition for a writ of mandamus, the husband argues that the testimony presented by the wife at the parties’ divorce trial was related to a possible move to North Carolina, not Wisconsin, and he argues that the relocation provision in the divorce judgment is not in compliance with the Act. This court consolidated the husband’s appeal from the divorce judgment and his petition for a writ of mandamus ex mero motu.

Issues

In addition to the issues presented by the husband in his petition for a writ of mandamus, the husband presents several issues for review by this court resulting from the divorce judgment, namely: (1) that the trial court erred by failing to conduct a hearing on his postjudgment motion and by failing to grant relief to the husband in light of the trial court’s implicit concession that it had improperly considered evidence from Jessica Slocumb’s contempt hearing; (2) that the trial court erred by awarding the wife one-half of his retirement benefits in light of the fact that the parties’ had not been married for 10 years; (3) that the trial court erred in its custody determination; (4) that the trial court exceeded its discretion by allowing the wife to change the principal residence of the children; (5) that the trial court exceeded its discretion by ordering the husband to pay $2,500 a month in child support; (6) that the trial court exceeded its discretion in ordering the husband to pay the wife periodic alimony in the amount of $2,500 a month; (7) that the trial court erred in its division of property and debts; and (8) that the trial court exceeded its discretion in ordering the husband to pay the wife’s attorney’s fee.

Discussion

A. The Husband’s Appeal from the Divorce Judgment

The husband first argues that the trial court erred by considering testimony presented at Slocumb’s contempt hearing when making a final determination regarding the issues presented by the parties as part of their divorce proceedings. The husband argues that because the trial court agreed to reopen the case for presentation of additional testimony regarding his credibility, the trial court implicitly conceded that it had wrongfully considered the testimony presented at Slocumb’s contempt hearing. In response, the wife argues that, even if the trial court wrongfully considered the testimony presented at Slo-cumb’s contempt hearing, any error committed was harmless because the trial court denied the husband’s requested post-judgment relief despite agreeing to conduct a hearing on the husband’s credibility.

The statement made by the trial court in the divorce judgment, quoted above, leaves no doubt that the trial court considered the testimony presented at Slocumb’s contempt hearing, which the husband was apparently not present for (see supra note 1), when it made its final determination regarding the issues presented by the parties pursuant to their divorce proceedings. The record reveals that the trial court attempted to ameliorate the error alleged by the husband by reopening the case so that additional testimony regarding the husband’s credibility could be presented. The trial court was not able to conduct such a hearing because the husband filed a notice of appeal with this court based on his belief that a hearing on the husband’s credibility was moot because the trial court had denied the husband’s remaining post-judgment challenges to the divorce judgment.

However, the trial court’s order, which granted the husband’s motion to alter, amend, or vacate the judgment in part and ordered the case reopened for the presentation of additional testimony, does not reflect an intent to finally adjudicate all the issues before the trial court. Cf. Rule 58(b), Ala. R. Civ. P. (“A written order or a judgment will be sufficient if it is signed or initialed by the judge ... and indicates an intention to adjudicate, considering the whole record, and if it indicates the substance of the adjudication.”).

Pursuant to its November 26, 2009, post-judgment order, the trial court clearly ordered that the case be reopened for the presentation of additional testimony. If the trial court had expressly allowed the reopening of the case for presentation of additional testimony with an intent that it would not consider changing any aspect of the divorce judgment, we agree that the taking of additional testimony would have been a useless act. However, we will not presume that the trial court agreed to conduct a hearing that would have been a vain and useless act, because the law does not require the doing of a vain or useless thing. See, generally, Corsino v. Corsino, 904 So.2d 1261, 1265 (Ala.Civ.App.2004). Although the trial court purported to deny the husband’s Rule 59 motion on all other grounds, the only reasonable explanation for the trial court’s order granting an evi-dentiary hearing was so the trial court could reconsider all the issues presented in the divorce proceedings in light of any evidence regarding the husband’s credibility that might be produced at the evidentia-ry hearing. Thus, we must conclude that the trial court’s order allowing the presentation of additional testimony was an indication that the trial court did not consider the case to be finally adjudicated on the merits after the entry of its postjudgment order. Accordingly, because the husband’s appeal was not taken from a final judgment, we must dismiss the husband’s appeal for lack of subject-matter jurisdiction. See Sexton v. Sexton, 42 So.3d 1280, 1282 (Ala.Civ.App.2010) (“Generally, an appeal will lie only from a final judgment, and if there is not a final judgment then this court is without jurisdiction to hear the appeal.”).

B. The Husband’s Petition for a Writ of Mandamus

In his petition for a writ of mandamus, the husband argues that the trial court erred by failing to grant his motion for temporary restraining order, which sought to prevent the wife from changing the principal residence of the children to Sturgeon Bay. See Rule 65(b), Ala. R. Civ. P. (setting forth the requirements for the issuance of a temporary restraining order when no notice is provided to the adverse party). The husband argues that the trial court erred by relying on the provision in the parties’ divorce judgment that permitted the wife to change the principal residence of the children to any place more than 60 miles from the marital residence.

“A writ of mandamus is an extraordinary remedy, and it will be ‘issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.’ Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993). A writ of mandamus will issue only in situations where other relief is unavailable or is inadequate, and it cannot be used as a substitute for appeal. Ex parte Drill Parts & Serv. Co., 590 So.2d 252 (Ala.1991).”

Ex parte Empire Fire & Marine Ins. Co., 720 So.2d 898, 894 (Ala.1998).

Because we have determined that the parties’ divorce judgment is not a final judgment, we will consider the provision in the parties’ divorce judgment that permits the wife to relocate with the children more than 60 miles from the location of the marital residence to be a temporary order permitting the change of principal residence of the children pursuant to § 30-3-169.2(b), Ala. Code 1975.

In support of his motion for a temporary restraining order, the husband argued that the wife, at the August 2009 ore tenus hearing in the divorce action, had presented evidence regarding her intent to change the principal residence of the children only to North Carolina and that there had been no mention of a possible relocation to Sturgeon Bay. The materials presented with the husband’s petition for a writ of mandamus indicate that the trial court summarily denied the husband’s motion for a temporary restraining order based on the provision in the parties’ divorce judgment that permitted the wife to move more than 60 miles from the marital residence. The husband argues that that provision in the parties’ divorce judgment is too broad to comply with the strict mandates of the Act. We agree.

The Act requires the trial court, in cases such as this, to consider various factors before making an initial determination of custody in a divorce action when one parent has expressed an intent to change the principal residence of the parties’ children. See § 30-3-169.7, Ala.Code 1975 (which requires a trial court in a divorce proceeding to consider the factors set. forth in § 30-3-169.2 and § 30-3-169.3, Ala.Code 1975, when making a custody determination when one parent wishes to change the principal residence of the child). Pursuant to § 30-3-169.7, the trial court was required to consider the 17 factors set forth in § 30-3-169.3(a) before making a determination of custody, considering the wife’s intent to change the principal residence of the children; those factors include: the increase in travel time for the children and the nonrelocating parent; the feasibility of preserving the relationship between the children and the nonrelocating parent, considering the logistics and financial circumstances of the parties; whether a change of principal residence of the children will enhance the general quality of life for the children and the custodial parent, considering financial or emotional benefits and educational opportunities; whether there is a support system available in the area of the proposed principal residence of the children; the reason the relocating parent is seeking to change the principal residence of the children; and any other factor that the trial court deems material to the determination. See § 30-3-169.3(a)(3), (5), (11), (12), (15), and (17), Ala.Code 1975. Thus, it would be impossible for a trial court to determine whether a change in principal residence of a child is proper unless the trial court was aware of the actual place of the proposed principal residence of the child.

Because the evidence initially presented by the wife concerned a proposed change of principal residence to North Carolina, the trial court could not have properly considered all the factors set forth in § 30-3-169.3(a) in determining whether a proposed change of principal residence of the children to Sturgeon Bay was proper. The relocation provision in the trial court’s divorce judgment allowed the wife to circumvent application of the Act; under the circumstances in this case, the wife was not required to present evidence related to a proposed change of principal residence of the children to Sturgeon Bay simply because she had presented evidence that may have supported a change in principal residence of the children to North Carolina.

Therefore, because the wife had not presented any evidence to support a change in principal residence of the children to Sturgeon Bay, we conclude that the trial court had no basis to allow the wife to change the principal residence of the children to Sturgeon Bay. Because the parties’ divorce judgment is not yet final, a proposed change of principal residence is still subject to the provisions of § 30-3-169.7. Therefore, before the trial court can permit a change in the principal residence of the children, it must first consider the factors set forth in § 30-3-169.2 and § 30-3-169.3, in light of the wife’s desire to relocate with the children to Sturgeon Bay. Finding no indication in the record that the trial court considered the Act in light of the wife’s desire to relocate to Sturgeon Bay, we conclude that the husband’s motion for a temporary restraining order should have been granted. Because the trial court refused to grant the husband’s motion for a temporary restraining order, we conclude that the husband’s petition for a writ of mandamus is due to be granted. Accordingly, we issue the writ and instruct the trial court to restrain the wife from changing the principal residence of the children until the trial court conducts an evidentiary hearing on the wife’s request to change the principal residence of the children to Sturgeon Bay.

Conclusion

We instruct the trial court to reopen the parties’ divorce case for presentation of additional testimony as originally ordered by the trial court before the husband filed a notice of appeal to this court. The wife’s request for an attorney’s fee on appeal is denied. We further instruct the trial court to conduct a hearing on the wife’s request to change the principal residence of the children to Sturgeon Bay and to enter an order consistent with this opinion.

2090265 — APPLICATION FOR REHEARING OVERRULED; OPINION OF SEPTEMBER 17, 2010, WITHDRAWN; OPINION SUBSTITUTED; APPEAL DISMISSED.

2090645 — ON APPLICATION FOR REHEARING IN CASE NO. 2090265: OPINION OF SEPTEMBER 17, 2010, WITHDRAWN; OPINION SUBSTITUTED. PETITION GRANTED; WRIT ISSUED.

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

      . In its September 29, 2009, order, the trial court stated that Slocumb, Slocumb’s attorney, and the wife’s attorney were present at the contempt hearing and that testimony was taken before the determination of contempt was made. There was no indication in the trial court’s order that either the husband or the husband’s attorney was present for Slo-cumb’s contempt hearing.

      . The husband, in a verified pleading and in an affidavit, sets forth facts indicating that immediate and irreparable harm would have resulted if a temporary restraining order was not issued before the wife could be heard on his motion. The husband's attorney also certified that he had not made any attempt to give notice to the wife because of the potential for irreparable injury if the temporary restraining order was not immediately issued. The potential harm caused by the relocation of the children, without proper evidentiary support, was a sufficient showing of immediate and irreparable harm to the husband.

      . Section 30-3-169.2(b) provides:
      "The court may grant a temporary order permitting the change of principal residence of a child and providing for a revised schedule for temporary visitation with a child pending a final hearing if the court finds that the required notice of a proposed change of principal residence of a child as provided in this article was provided in a timely manner, contained sufficient and accurate information, and if the court finds from an examination of the evidence presented at a hearing for temporary relief that there is a likelihood that on final hearing the court will approve the change of the principal residence of the child.”
      We note that § 30-3-169.2(c), Ala.Code 1975, provides that a trial court "may not give weight to the temporary change of principal residence as a factor in reaching its final decision” regarding whether to allow a change of principal residence.

      . In issuing a judgment of divorce, the trial court should not consider any evidence from any proceeding before the court except the evidence presented in this case, case no. DR-08-270. In his application for rehearing, the husband argues that our decision fails to address the denial of his due-process rights that he argues occurred when the trial court considered testimony taken at Slocumb's contempt hearing, which the husband describes as an ex parte communication. Our decision does not address that issue because the husband’s appeal was not taken from a final judgment and this court has no jurisdiction to consider that issue. Our decision places the parties and the trial court in the position they would have been in had the husband not filed a premature notice of appeal. Any challenge the husband may have to these proceedings from that point forward, including a due-process challenge or a motion requesting that the trial-court judge recuse himself, must be addressed by the trial court before this court may consider those issues on appeal.