author: THOMAS, Judge.

text:
    Carla ALLEN v. Warren HILL.
    2100318.
    Court of Civil Appeals of Alabama.
    July 29, 2011.

      Christy W. Graham, Moulton, for appellant.
    Harry Montgomery, Moulton, for appel-lee.
   THOMAS, Judge.

In February 2010, Carla Allen (“the mother”) filed a modification complaint, seeking an order requiring Warren Hill (“the father”) to pay postminority educational support for Briona Allen (“the child”). After a trial, the trial court ordered the father to pay the child’s automobile insurance, to maintain health insurance on the child, and to pay the child $100 per month toward her college expenses. The mother appeals that judgment, arguing that the father should have been required to pay half the child’s college expenses.

“Our supreme court authorized the imposition of postminority educational support in Ex parte Bayliss, 550 So.2d 986 (Ala.1989). When considering an application for postminority educational support, ‘the trial court shall consider all relevant factors that shall appear reasonable and necessary, including primarily the financial resources of the parents and the child and the child’s commitment to, and aptitude for, the requested education.’ Ex parte Bayliss, 550 So.2d at 987. Other factors the trial court may consider include ‘the standard of living that the child would have enjoyed if the marriage had not been dissolved and the family unit had been preserved and the child’s relationship with his parents and responsiveness to parental advice and guidance.’ Id.”

Bowen v. Bowen, 28 So.3d 9, 13 (Ala.Civ. App.2009). Because “the general principles concerning child support [are] equally applicable to a[n] [Ex parte ] Bayliss [, 550 So.2d 986 (Ala.1989),] motion for postmi-nority college support,” this court considers only whether the trial court abused its discretion in determining whether to award support and, if it awarded support, whether it abused its discretion in determining what amount of support is appropriate under the circumstances of the case. Berry v. Berry, 579 So.2d 654, 656 (Ala. Civ.App.1991); see also Wells v. Wells, 648 So.2d 617, 619 (Ala.Civ.App.1994) (quoting Berry, 579 So.2d at 656). As with all judgments based on the trial court’s receipt of oral testimony, the factual findings of the trial court in a judgment awarding or denying postminority educational support are presumed correct; moreover, in the absence of express findings by the trial court, any findings that are necessary to the judgment are presumed to have been made, provided that the record evidence would support such findings. Fielding v. Fielding, 24 So.3d 468, 472 (Ala.Civ.App. 2009).

No trial transcript was available, so the parties have submitted an approved Rule 10(d), Ala. R.App. P., statement of the evidence. That statement indicates that the child’s college expenses, including tuition and room-and-board costs, at Jacksonville State University was $5,900 for the first semester. The child also spent $663.09 on textbooks. The child had the benefit of three scholarships, totaling $2,356; the statement of the evidence does not indicate whether the scholarships covered the entire academic year or only one semester.

The mother is employed at International Paper Company. She earned approximately $42,500 in 2009, despite the fact that she was receiving disability pay for four months of that year; the mother had earned as much as $63,000 per year in the past. The mother had purchased the child’s automobile and had been paying $419 per quarter for the child’s automobile insurance. According to the mother, she had taken out loans to pay for the child’s college tuition and expenses.

The father is also employed at International Paper. He typically earns approximately $80,000 per year; in 2008, the father had earned $106,000. The father’s monthly expenses totaled $4,774. He pays for health-insurance coverage for the child; he said that he paid $110 biweekly for that coverage.

In addition to the child, the father has two other college-aged children, an older adult daughter who is self-supporting, and a 14-year-old son. The father testified that his “philosophy” was that his children should be primarily responsible for paying for their own college expenses out of the money they earned. He said that one of his children, Candace Hill, paid the majority of her own college expenses; he stated that he paid her automobile payment and assisted her with living expenses. His other college-aged child, Nakia McDaniel, was also the subject of a postminority-edu-cational-support action; that action was consolidated with this action for purposes of trial. Ms. McDaniel had an athletic scholarship to the University of Alabama at Birmingham; the trial court ordered the father to provide Ms. McDaniel with automobile insurance, health insurance, and $100 per month.

The mother argues on appeal that the trial court abused its discretion by awarding only $100 per month to the child despite the fact that the evidence demonstrated that the father could afford to pay half the child’s college expenses without undue hardship. According to the mother, the award of such a “very small monthly stipend” is error in light of the clear evidence concerning the father’s financial resources and the child’s aptitude for a college education. The mother contends that the trial court placed “much consideration” on the child’s failure to consult with the father regarding her college selection and financial planning. The mother argues that we should reverse the award of post-minority educational support and remand the cause with instructions that the trial court consider the appropriate factors without giving what she perceives to be “undue weight” to the child’s failure to discuss her college choice and financial planning with the father.

As a preliminary matter, we cannot agree with the mother that the trial court ordered the father to pay only $100 toward the child’s postminority educational expenses. This court has long held that postminority-educational-support awards should be based “on the reasonable necessaries, including room and board, for the child to attend college after reaching majority.” Thrasher v. Wilburn, 574 So.2d 839, 841 (Ala.Civ.App.1990). A trial court may require a parent to contribute to more than the actual expenses of tuition, room and board, and books. Wagner v. Wagner, 989 So.2d 572, 581-82 (Ala.Civ.App.2008) (“[PJostminority educational support may include more than the costs of tuition and books, and may include other expenses that the trial court, acting within its discretion, determines to be reasonably necessary for the child to attend college.”). In Wagner, we affirmed a postminority-educational-support award that included monthly allotments for, among other things, automobile-related expenses and automobile insurance. Wagner, 989 So.2d at 581-82. We have also held that health-insurance costs may be included in a postminority-educational-support award. Waddell v. Waddell, 904 So.2d 1275, 1286 (Ala.Civ.App.2004).

The father in the present case was required to pay automobile insurance and health insurance for the benefit of the child so long as she attended an in-state, four-year college as a full-time student in “good academic standing.” Thus, we must include those amounts in the calculation of his total postminority-educational-support obligation. The father’s actual monthly postminority-educational-support obligation, including the amount the mother had been paying for automobile insurance for the child and the health-insurance premiums the father had been regularly paying for coverage for the child, would be approximately $460 per month. Although that amount will not necessarily be credited toward the child’s tuition or room-and-board costs, the child will benefit from the father’s payment of those expenses while she pursues her college education.

In light of the father’s income, his expenses, and the fact that he is providing some financial assistance to three children attending college, we cannot agree with the mother that the trial court abused its discretion in its award of $460 in monthly postminority educational support in the present case. Although the trial court specifically referenced the fact that the child had not consulted the father regarding her college plans, we cannot agree with the mother that the trial court placed “undue weight” on that particular factor. The trial court ordered the father to pay $460 on behalf of the child as postminority educational support, which presumably is equal to or less than what the trial court thought the father had the ability to pay. However, the lack of a responsive parent-child relationship “is a factor for the court to consider and it may, therefore, be the basis for reducing what might, under other circumstances, be a greater amount of support.” Stinson v. Stinson, 729 So.2d 864, 869 (Ala.Civ.App.1998).

Furthermore, the father testified that his “philosophy” was that his children should shoulder the majority of the responsibility for their own college educations. As proof of the father’s “philosophy,” he testified that his oldest college-aged child was paying the majority of her college-related expenses. The trial court could well have determined that the father would not have paid for all or even half the child’s college expenses had the parties ever been married.

The trial court clearly considered the required factors and balanced the father’s “philosophy” with his ability to assist the child with college expenses to benefit the child by requiring the father to shoulder the responsibility of providing automobile and health insurance for the child while she pursues her college education. We cannot find fault with the trial court’s exercise of discretion here. Because the child clearly has the aptitude for college and had managed to secure three small scholarships for her freshman year, we expect her to enjoy continued academic success, which should assist her in retaining or acquiring other scholarships. In addition, the mother and the child may seek grants, loans, or other financial assistance to offset the remaining expenses associated with the child’s college education. We therefore affirm the judgment of the trial court.

AFFIRMED.

PITTMAN and MOORE, JJ., concur.

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

      . We note that Ex parte Bayliss, 550 So.2d 986, 987 (Ala. 1989), speaks of the trial court's considering, among other things, "the standard of living that the child would have enjoyed if the marriage had not been dissolved and the family unit had been preserved.” The parents in this case were never married. However, postminority educational support is not restricted to the children of divorced parents. Ex parte Jones, 592 So.2d 608, 610 (Ala. 1991) ("Therefore, we hold that the 'college education exception’ to the general rule that a ‘parent has no duty to contribute to the support of his or her child after that child has reached the legislatively prescribed age of majority,' Bayliss, 550 So.2d at 992, applies as well where the parents were not married at the time of the birth of the child and were not married thereafter.”). Thus, the trial court could have considered what the father might have done regarding the child’s college expenses if he and the mother had ever married and had remained married.


source: Caselaw Access Project

author: THOMPSON, Presiding Judge.

license: Public Domain

text:
    Lori HOOD v. Scott HOOD.
    2100358.
    Court of Civil Appeals of Alabama.
    July 29, 2011.

      Richard L. Watters, Mobile, for appellant.

      W. Gregory Hughes, Mobile, for appel-lee.
   THOMPSON, Presiding Judge.

Lori Hood (“the mother”) appeals from the judgment of the Mobile Circuit Court in favor of Scott Hood (“the father”). For the reasons stated herein, we affirm the judgment in part and reverse it in part.

This is the second appeal involving these parties related to their 2001 divorce. In the first appeal, this court recounted the following procedural history:

“[The father] and [the mother] were divorced by a 2001 judgment of the trial court that incorporated an agreement reached by the parties. The divorce judgment awarded the mother custody of the two minor children born of the parties’ marriage, awarded the father a standard schedule of visitation, ordered the father to pay $419 per month in child support, and required the father to provide health insurance for the benefit of the parties’ children and to reimburse the mother for any noncovered medical expenses. In addition, the divorce judgment stated that the parties waived all claims to alimony, but paragraph five of the judgment required the father to pay the mother $296 per month from income from a trust fund established for the benefit of the father; paragraph five of the divorce judgment also specified that the amount to be paid to the mother pursuant to that paragraph would increase if the monthly benefits paid to the father increased.
“In April 2007, the father filed a petition for a rule nisi, seeking to have the mother held in contempt for allegedly denying him visitation with the parties’ two children. Also in April 2007, the father filed a complaint seeking to modify custody and to terminate his obligation to pay the mother amounts pur-
suant to paragraph five of the divorce judgment. The mother responded to the father’s petition for a rule nisi by filing an answer denying the material allegations in that petition. She also counterclaimed, seeking an increase in the father’s child-support obligation and seeking to have the father held in contempt for his failure to pay certain amounts as required by the 2001 divorce judgment.
“The trial court conducted an ore ten-us hearing. During that hearing, the mother requested that the trial court increase what she characterized as the father’s ‘alimony’ obligation imposed by paragraph five of the 2001 divorce judgment. The father did not object to that request, and, therefore, we conclude that that claim was tried by the implied consent of the parties. See Rule 15(b), Ala. R. Civ. P.
“On June 11, 2008, the trial court entered an order in which it denied the mother’s contempt claim and her claim seeking an increase in child support, denied the father’s claim seeking a modification of custody, and granted the father’s claim seeking to modify visitation.

Hood v. Hood, 23 So.3d 1160, 1161-62 (Ala.Civ.App.2009) (footnote 1 omitted).

Subsequent to the trial court’s entry of its June 11, 2008, order, .the trial court resolved the remaining issues, and the mother appealed. The mother contended that the trial court had erred in refusing to modify the father’s child-support obligation. Because this court was unable to ascertain how the trial court had determined whether to modify the father’s child-support obligation, we reversed the trial court’s judgment and remanded the cause for the trial court to calculate the father’s child-support obligation pursuant to Rule 82, Ala. R. Jud. Admin. Id. at 1165. The mother also contended on appeal that the trial court had erred in refusing to hold the father in contempt for failing to comply with paragraph five of the divorce judgment by failing to increase the payment she was due under that paragraph as the income he received from the trust fund increased. Addressing that contention, this court wrote that, although the father had “openly acknowledged that he had not complied with that part of paragraph five that required him to increase the payment to the mother in proportion to the increase in the amount of funds he received from the trust fund,” the mother had failed to present evidence from which the trial court could have determined “when, and by how much, the payments to the mother should have been increased pursuant to the requirements of paragraph five.” Id. at 1166. Thus, this court concluded that the trial court had not abused its discretion in failing to hold the father in contempt. Id. The record in the present appeal reflects that on, March 4, 2010, following remand, the trial court entered a judgment establishing a new amount for the father’s child-support obligation. No appeal was taken from that order.

On October 27, 2009, before the trial court entered the order on remand, the father filed a petition to modify the divorce judgment. He alleged that there had been a material change in circumstances, and, based on that alleged change, he sought primary physical custody of the parties’ daughter and a modification of his child-support obligation. The father also sought the termination of his obligation under paragraph five of the divorce judgment to pay the mother $296 per month, which he characterized as an award of alimony, alleging that she had begun cohabiting with someone of the opposite sex. The father later amended his petition by withdrawing his claim for modification of custody and child support but adding a request for an offset against any child-support arrearage that had accrued based on the extended period the parties’ daughter had resided with him.

The mother filed a motion to enforce the divorce judgment in which she alleged that the father had failed to pay her certain money required by paragraph five of the divorce judgment and that, at the time she filed her motion, he had discontinued making payments to her under that paragraph. The mother later filed a motion to hold the father in contempt for his failure to make payments to her pursuant to paragraph five of the divorce judgment.

On September 17, 2010, the mother filed an amended motion to enforce the divorce judgment and to hold the father in contempt. In addition to realleging the claims from her previous motions, she asserted that, on March 4, 2010, the trial court had entered a judgment, following remand from this court, in which it had ordered the father to pay $616 per month as child support effective retroactively to June 2008 and to pay the mother $1,000 as an attorney fee. The mother asserted that the father had failed to pay the ordered child support and, thus, that a child-support arrearage had accrued and that he had failed to pay the attorney fee ordered by the trial court. She sought an order finding the father in contempt and awarding her an attorney fee.

On October 18, 2010, the trial court held a bench trial at which it received ore tenus and documentary evidence. The father did not appear for the trial. The mother testified that she presently resided with the parties’ children and her boyfriend and that she had been living with her boyfriend for approximately two years. She stated that she had received a monthly payment of $296 from the father’s trust account beginning after the parties’ 2001 divorce until October 2009, at which time the father had terminated those payments. The mother admitted that she had claimed the $296 monthly payment from the father’s trust fund as income on her income-tax returns during the years she had received it, although she testified that the parties had considered the monthly payment a “property settlement.”

The mother stated that her attorney had obtained documentation from the company that handled the father’s trust fund and that she had had her attorney prepare an itemization of all the benefits the father had received from the trust fund in excess of the $700 he had been receiving on a monthly basis from the trust fund at the time of the divorce. The mother testified that the father’s trust fund had been paying a portion of his child support and his student loans, as well as other benefits for the father, including $85,000 toward the purchase of a house for the father. She stated that, according to her attorney’s calculations, she was presently entitled to at least $58,970.47 in payments from the trust fund, as well as interest on that amount of $11,986.46.

The mother submitted summaries of the documentation her attorney had obtained relative to the father’s trust fund. Those summaries showed what each party had received from the trust fund on a monthly basis, as well as one-time payments the trust fund had made to or on behalf of the father for items such as travel expenses, estate-planning work, and the purchase of a house. The summaries indicated that in March 2007 the trust fund began making monthly payments on behalf of the father for his student loans. Those summaries were introduced into evidence without objection.

The mother testified that the father owed her child support based on the fact that the trial court’s previous modification of the father’s child-support obligation had been retroactive to June of 2008. She also testified that she was seeking an attorney’s fee of $10,000.

On November 9, 2010, the trial court entered a judgment terminating the father’s obligation under paragraph five of the parties’ divorce judgment to pay the mother a portion of the income of his trust. The trial court construed that obligation as periodic alimony and specifically found that it was due to be terminated because the mother had admitted to cohabiting with her boyfriend. The trial court also awarded custody of the parties’ daughter to the father and modified the father’s child-support obligation. The trial court denied the parties’ remaining claims. The trial court made only a single finding of fact in the judgment — that the mother had admitted to cohabiting with her boyfriend; the trial court made no findings of fact bearing on the mother’s allegations that the father was in arrears as to his child-support obligation or that he had failed to pay an attorney fee to her as the trial court had previously ordered.

The mother filed a motion to alter, amend, or vacate the judgment in which she argued that the father’s request for custody of the parties’ daughter was no longer pending at the time of the trial and that no evidence was put forward in support of that request. She also argued that the trial court had erred in interpreting paragraph five of the divorce judgment as providing an award of periodic alimony to the mother and that the trial court should have held the father in contempt for failing to pay amounts that were due pursuant to that provision. The trial court granted the mother’s motion in part and set aside those portions of its judgment modifying custody of the parties’ daughter and modifying the father’s child-support obligation. The trial court denied the balance of the mother’s postjudgment motion. The mother appeals.

On appeal, the mother contends that the trial court erred in concluding that the award of a portion of the income from the father’s trust constituted an award of periodic alimony rather than an award of alimony in gross. She points out that paragraph four of the divorce judgment provides that “[e]ach party waives all claims to alimony, past, present, and future,” and that she testified at the hearing that the award of funds in paragraph five had “always been a property settlement.” Thus, she argues, that portion of the trial court’s judgment terminating the father’s obligation to pay funds to the mother under paragraph five of the divorce judgment should be reversed. We disagree.

In Daniel v. Daniel, 841 So.2d 1246 (Ala.Civ.App.2002), this court discussed the difference between periodic alimony and alimony in gross:

“Our supreme court has explained the difference between periodic alimony and alimony in gross. Hager v. Hager, 293 Ala. 47, 299 So.2d 743 (1974). Alimony in gross is considered ‘compensation for the [recipient spouse’s] inchoate marital rights [and] ... may also represent a division of the fruits of the marriage where liquidation of a couple’s jointly owned assets is not practicable.’ Hager v. Hager, 293 Ala. at 54, 299 So.2d at 749. An alimony-in-gross award ‘must satisfy two requirements, (1) the time of payment and the amount must be certain, and (2) the right to alimony must be vested.’ Cheek v. Cheek, 500 So.2d 17, 18 (Ala.Civ.App.1986). It must also be payable out of the present estate of the paying spouse as that estate exists at the time of the divorce. Hager v. Hager, 293 Ala. at 55, 299 So.2d at 750. In other words, alimony in gross is a form of property settlement. Hager v. Hager, 293 Ala. at 54, 299 So.2d at 749. An alimony-in-gross award is generally not modifiable. Id.
“Periodic alimony, on the other hand, ‘is an allowance for the future support of the [recipient spouse] payable from the current earnings of the [paying spouse].’ Hager v. Hager, 293 Ala. at 55, 299 So.2d at 750. Its purpose ... ‘is to support the former dependent spouse and to enable that spouse, to the extent possible, to maintain the status that the parties had enjoyed during the marriage, until the spouse is self-supporting or maintaining a status similar to the one enjoyed during the marriage.’ O’Neal v. O’Neal, 678 So.2d 161, 165 (Ala.Civ.App.1996) (emphasis added). Periodic alimony is modifiable based upon changes in the parties’ financial conditions or needs, such as an increase in the need of the recipient spouse, a decrease in the income of the paying spouse, or an increase in the income of the recipient spouse. See Tibbetts v. Tibbetts, 762 So.2d 856, 858 (Ala.Civ. App.1999). The paying spouse’s duty to pay periodic alimony may be terminated by petition and proof that the recipient spouse has remarried or is cohabiting with a member of the opposite sex. Ala. Code 1975, § 30-2-55.”

841 So.2d at 1250.

As previously noted, paragraph five of the divorce judgment provides:

“5. The parties agree that the [father] shall pay to the [mother] the sum of $296 per month from the income of the trust which is identified as ‘The Helen Trane Hood Trust for the Benefit of Benjamin Scott Hood,’ with said monthly payment to increase by the same percentage as the increase in the monthly benefits increase which are paid to the [father] from said trust.”

The amount of an award of alimony in gross is required to be certain, see Daniel, supra; however, the award made in this paragraph is not. First, there is no provision limiting the amount of time during which the award is to be paid. Second, the award was subject to an automatic increase upon the happening of an uncertain future event, i.e., an increase in benefits paid to the father. Thus, there is no way to determine the amount of the award to which the mother was entitled. See Rose v. Rose, 70 So.3d 429, 433 (Ala.Civ.App. 2011) (“Additionally, the former wife’s award of a share of the former husband’s benefits cannot be deemed to constitute an unmodifiable division of marital property, or alimony in gross, because both the time at which the former wife’s award will completely vest and the total amount the former wife will receive are indefinite.”).

Furthermore, the parties have treated the award as constituting periodic alimony rather than as nonmodifiable alimony in gross. For example, both parties have sought a modification of the award, the mother in the action that led to the previous appeal and the father in the action leading to the present appeal. Moreover, the mother testified that she has consistently treated her receipt of the monthly payment called for in paragraph five as income on her income-tax returns, which is not consistent with its treatment as alimony in gross but, instead, is consistent with its treatment as periodic alimony. See Rose, 70 So.3d at 433 (“The record also shows that the former wife has listed her share of the former husband’s benefits as income in her tax filings — a characterization that would not be valid if the former husband’s benefits had been divided as marital property.”); Adkins v. Adkins, 61 So.3d 1071, 1077 (Ala.Civ.App.2010) (“The payments are also designated as taxable income to the former wife and tax deductible for the former husband, as is the case with periodic alimony.”); Brunner v. Ormsby, 10 So.3d 18, 23 (Ala.Civ.App.2008) (“The parties also stated their intent that the payments not be treated as taxable income by the former wife or as a tax deduction by the former husband. The former husband admits in his brief that this provision lends support to the former wife’s argument that the alimony award was intended to be ‘in gross.’ ”).

The fact that the parties purported to waive their “claims to alimony, past, present and future,” in a separate paragraph of the divorce judgment does not persuade us that paragraph five of the divorce judgment provided for an award of alimony in gross rather than an award of periodic alimony. The characterization of an award in a divorce judgment as alimony in gross or periodic alimony is properly determined from the substance of the award rather than from its form or label. See Kenchel v. Kenchel, 440 So.2d 567, 569 (Ala.Civ.App.198B). In the present case, as we have discussed, the substance of the award in paragraph five comports more readily with its characterization as periodic alimony rather than as alimony in gross, as does the parties’ intent, as gleaned from their treatment of the award after the entry of the divorce judgment.

Because paragraph five of the divorce judgment provided for an award of periodic alimony rather than an award of alimony in gross, we conclude that the trial court did not err in terminating the father’s obligation under that paragraph. Section 80-2-55, Ala.Code 1975, provides, in relevant part:

“Any decree of divorce providing for periodic payments of alimony shall be modified by the court to provide for the termination of such alimony upon petition of a party to the decree and proof that the spouse receiving such alimony has remarried or that such spouse is living openly or cohabiting with a member of the opposite sex.”

The mother admitted that she had been cohabiting with a person of the opposite sex since at least November 2009. Thus, the trial court properly terminated the father’s periodic-alimony obligation.

The mother next contends that the trial court abused its discretion in denying her motion for contempt because, she says, the evidence was undisputed that the father had violated the terms of paragraph five of the divorce judgment by failing to increase the payments to the mother required thereunder in the same proportion that the trust fund had increased its payments to him. As to certain alimony payments under that paragraph due before November 2009, we agree.

Discussing contempt, this court has written:

“ ‘ “Civil contempt” is defined as a “willful, continuing failure or refusal of any person to comply with a court’s lawful writ, subpoena, process, order, rule, or command that by its nature is still capable of being complied with.” Rule 70A(a)(2)(D), Ala. R. Civ. P. The determination of whether a party is in contempt is within the sound discretion of the trial court, and that determination will not be reversed absent a showing that the court exceeded the limits of its discretion. Stack v. Stack, 646 So.2d 51 (Ala.Civ.App. 1994).’
“Routzong v. Baker, 20 So.3d 802, 810 (Ala.Civ.App.2009). ‘ “The failure to perform an act required by the court for the benefit of an opposing party constitutes civil contempt.” Carter v. State ex rel. Bullock County, 393 So.2d 1368, 1370 (Ala.1981).’ J.K.L.B. Farms, LLC v. Phillips, 975 So.2d 1001, 1012 (Ala. Civ.App.2007). Furthermore, ‘ “[t]he purpose of a civil contempt proceeding is to effectuate compliance with court orders and not to punish the contemnor.” Watts v. Watts, 706 So.2d 749, 751 (Ala. Civ.App.1997).’ Hall v. Hall, 892 So.2d 958, 962 (Ala.Civ.App.2004).”

Reed v. Dyas, 28 So.3d 6, 8 (Ala.Civ.App. 2009).

In the prior appeal, this court wrote:

“In this case, the father openly acknowledged that he had not complied with that part of paragraph five that required him to increase the payment to the mother in proportion to the increase in the amount of funds he received from the trust fund. The father admitted that the funds he received from the trust fund had increased over the years since the divorce and that he had not increased the proportionate payment to the mother as required by paragraph five of the divorce judgment. The father does not contend that he was unable to pay the additional amount. Rather, he contends that the amounts paid by his family or the trust fund on his behalf exceed the amount he was required to have paid under paragraph five.
“However, although it is clear that the father did not comply with the provisions of paragraph five of the divorce judgment, the record does not contain any evidence presented to the trial court regarding when the amounts paid to the father by the trust fund increased or by how much those payments had increased. Thus, there was no way for the trial court to determine, based on the evidence presented to it, when, and by how much, the payments to the mother should have been increased pursuant to the requirements of paragraph five. Given the lack of evidence in the record pertaining to the specific facts of this issue, we cannot say that the trial court exceeded its discretion in failing to find the father in contempt for his failure to comply with the terms of paragraph five of the divorce judgment.”

Hood, 23 So.3d at 1166. The mother has made the same argument in the present action as she did in the prior action, but, unlike in the prior action, the mother has provided evidence as to payments made to her and to the father from the father’s trust fund. Therefore, in this action, the mother has provided a basis on which the courts may determine the extent to which the father should have increased his payments to her pursuant to paragraph five of the divorce judgment.

It is undisputed that, at the time of the divorce, the father’s trust fund was paying him $700 monthly. The evidence the mother presented in this action demonstrates that additional funds from the trust fund were used to make the father’s monthly student-loan payment of approximately $187 for him beginning in March 2007. It also demonstrates that, by that time, funds from the trust fund were being used to pay the father’s child-support obligation to the mother of $525 and that it was making a monthly payment of $200 to the father. Thus, it appears that, by March 2007, the monthly benefits paid to or on behalf of the father had begun to exceed $700. However, it is undisputed that the father did not, at any point, increase the periodic alimony he was paying to the wife as required by paragraph five based on the increase in the monthly benefits he received from his trust fund.

In failing to increase the amount of alimony due the mother pursuant to paragraph five of the divorce judgment, the father “fail[ed] to perform an act required by the court for the benefit of’ the mother. Reed, 28 So.3d at 8. Thus, we conclude that the trial court abused its discretion when it failed to hold the father in contempt. To that extent, the trial court’s judgment is reversed, and the cause is remanded for the trial court to enter a judgment adjudging the father to be in contempt.

We note however, that, to the extent the trial court did not hold the father in contempt for any periodic-alimony payments that he failed to make after he filed his petition to terminate that alimony obligation, the trial court acted appropriately. Discussing the termination of periodic alimony based on the receiving spouse’s cohabitation with someone of the opposite sex, our supreme court has written:

“The Court of Civil Appeals, in its cases construing § 30-2-55, has established the rule that ‘once there is sufficient proof that the spouse is openly living or cohabitating with a member of the opposite sex, no alimony accrues or matures beyond the time that such cohabitation began.’ Russell v. Russell, 586 So.2d 12, 13 (Ala.Civ.App.1991). See Wood v. Wood, 682 So.2d 1386 (Ala. Civ.App.1996). Therefore, the husband is not liable for any alimony after the date the wife began cohabitating with her boyfriend in 1986. The trial court thus erred in finding the husband in contempt and in ordering him to pay alimony for that period after the cohabitation began.”

Ex parte Ward, 782 So.2d 1285, 1288 (Ala. 2000). As previously noted, the mother began cohabiting with her boyfriend at least as early as November 2009, which is when the father stopped paying periodic alimony to her and after he had filed his petition to terminate his alimony obligation. Thus, the trial court did not err in failing to hold the father in contempt with regard to any alimony payments the mother claims for the period following November 2009.

Finally, the mother contends that the trial court erred in failing to hold the father in contempt because of his failure to pay certain child support that, she says, had accrued. However, the mother failed to preserve that issue for appeal. In Kelley v. Kelley, 52 So.3d 534 (Ala.Civ.App. 2010), this court wrote:

“The wife next asserts that the trial court exceeded its discretion by failing to find the husband in contempt of court for his failure to pay alimony, to maintain health insurance on the wife, and to preserve the marital assets in accord with the pendente lite order....
“We cannot address the issues regarding unpaid alimony and health insurance because the wife failed to preserve those issues for appeal. ‘[I]n a nonjury case in which the trial court makes no specific findings of fact, a party must move for a new trial or otherwise properly raise before the trial court the question relating to the sufficiency or weight of the evidence in order to preserve that question for appellate review.’ New Props., L.L.C. v. Stewart, 905 So.2d 797, 801-02 (Ala.2004). See also Point Clear Landing Ass’n, Inc. v. Kaylor, 959 So.2d 672, 677 (Ala.Civ.App.2006) (accord); and Rule 52(b), Ala. R. Civ. P.
“In this case, the trial court made no findings of fact; it simply entered a judgment divorcing the parties and dividing the marital property. Although the wife filed a postjudgment motion, the trial court’s failure to find the husband in contempt on the basis of unpaid alimony and lapsed health insurance was not asserted as error in that motion. As a result, the wife has failed to preserve those issues for appellate review.”

52 So.3d at 544.

In the present case, the trial court did not make any findings of fact relative to the issue of child support. Thus, to preserve for appeal the issue whether the evidence demonstrated that the trial court was required to hold the father in contempt for failure to pay all the child support required by the trial court’s prior judgments, the mother was required to have filed a postjudgment motion specifically raising that issue. Kelley, supra. Although the mother did file a post-judgment motion, she did not raise that issue, focusing instead on the trial court’s improper change of custody of the parties’ daughter and paragraph five of the divorce judgment. As a result, this court cannot consider the mother’s contention related to the issue of child support.

Based on the foregoing, we reverse the trial court’s judgment to the extent that it failed to find the father in contempt for failing to pay, before November 2009, the additional alimony due the mother as a result of the increase in the monthly benefits he was paid from his trust fund. We affirm the balance of the trial court’s judgment. We remand the cause for the trial court to consider the evidence presented and to enter a judgment consistent with this opinion. Both parties’ requests for an attorney’s fee on appeal are denied.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

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

      " Specifically, paragraph five of the divorce judgment states:
      " 'The parties agree that the [father] shall pay to the [mother] the sum of $296 per month from the income of the trust which is identified as "The Helen Trane Hood Trust for the Benefit of Benjamin Scott Hood," with said monthly payment to increase by the same percentage as the increase in the monthly benefits increase which are paid to the [father] from said Trust.' "

      . The mother also submitted two compact discs that, according to her, contain electronic copies of the documents her attorney had obtained from the company handling the father’s trust fund. However, except for an electronic version of the record of appeal in the prior appeal and certain other files related to an entirely different case, the files on those discs are protected by passwords, and there is no indication that the mother provided the trial court with those passwords necessary to access the files on those discs. Although the discs are part of the record on appeal, this court was not provided with the passwords necessary to access the information on them related to the father's trust fund, and, as a result, this court has been unable to consider any such information contained on those discs.

      . Although the mother does not use the phrase "alimony in gross” in her principal appellate brief, it is clear from her reply brief that she is contending that the award in paragraph five constitutes alimony in gross, which is a form of property settlement. See Lambert v. Lambert, 22 So.3d 480, 485 (Ala.Civ.App. 2008) (" '[A]limony in gross is a form of property settlement.’ ” (quoting TenEyck v. Ten-Eyck, 885 So.2d 146, 152 (Ala.Civ.App. 2003))).

      . We note that the father has not asserted the doctrine of res judicata as a bar to the mother's contempt action against him, despite the fact that her action raises the same issues as her prior contempt petition that was litigated to a final judgment. '‘Res judicata is an affirmative defense and if it is not raised in the trial court, it is deemed to have been waived.” Imperial Crown Marketing Corp. v. Wright, 560 So.2d 1025, 1027 (Ala. 1989).

      . This payment appears to represent an amount of child support that the father had voluntarily increased from what had been ordered in the divorce judgment.

      . In his appellate brief, the father argues that the monthly benefits he received from the trust fund never exceeded $700, relying on testimony from the mother in which she agreed with the father’s attorney on cross-examination that the father had not been paid more than $700 per month by the trust. However, when the whole context of the mother’s testimony is considered, it is clear that, in agreeing with the father’s attorney, she was not considering the items, such as the father’s child-support obligation, that the trust fund had begun to pay on the father’s behalf.

      . Although we conclude that the trial court erred in failing to hold the father in contempt, we will leave it to the trial court to determine, based on the evidence presented, the period during which the father was in violation of the divorce judgment and the amount owed the mother as a result of that violation.


author: THOMPSON, Presiding Judge. MOORE, Judge,

text:
    D.E.F. v. L.M.D.
    2100466.
    Court of Civil Appeals of Alabama.
    July 29, 2011.

      C. Joseph Norton of Kopesky, Britt & Norton, LLC, Fairhope, for appellant.
    William E. Scully, Jr., Daphne, for ap-pellee.
   THOMPSON, Presiding Judge.

D.E.F. (“the father”) is the father of L.L.F. (“the child”). Following his birth in June 2008, the child resided for a time in the home the father shared with his wife, R.F., and her three children from a previous relationship.

On October 31, 2008, the child and R.F.’s three children were taken into protective custody following allegations that the father and R.F. had physically abused some or all of the children in the home. The Baldwin County Department of Human Resources (“DHR”) then filed in the juvenile court a petition alleging, in pertinent part, that the child was dependent. On December 8, 2008, the juvenile court entered an order in which it found the child dependent and awarded temporary legal and physical custody of the child to DHR.

Following a hearing, the juvenile court, on December 17, 2008, entered a judgment in which it found the child dependent, placed the child “in the legal and physical custody of [J.E.D.] and [L.M.D.],” and specified that “[t]his case is hereby closed and DHR is relieved of supervision on this case.” The father did not appeal that judgment.

On February 5, 2009, the father filed in the juvenile court a Rule 60(b), Ala. R. Civ. P., motion seeking relief from the December 17, 2008, judgment. The juvenile court granted the motion on March 16, 2009. J.E.D. and L.M.D. filed a petition for a writ of mandamus in this court challenging the March 16, 2009, order setting aside the December 17, 2008, judgment. The father did not respond to the petition for a writ of mandamus filed in this court. On May 7, 2009, this court entered an order granting the petition for a writ of mandamus. Ex parte J.D., 51 So.3d 1134 (Ala.Civ.App.2009) (table).

Thereafter, on July 8, 2009, the father filed in the juvenile court a petition seeking to modify the December 17, 2008, judgment. The father alleged that the child was “currently in the legal and physical custody” of J.E.D. and L.M.D. and that a material change of circumstances had occurred warranting an award of custody of the child to him. J.E.D. and L.M.D. answered and opposed the father’s custody-modification action.

The juvenile court received ore tenus evidence over the course of four days between July 2010 and December 2010. At the conclusion of the father’s presentation of evidence, J.E.D. and L.M.D. orally moved for a judgment as a matter of law, arguing that the father had not met his evidentiary burden. The child’s guardian ad litem joined the motion for a judgment as a matter of law. The juvenile court orally granted the motion during the hearing. Later, on January 12, 2011, the juvenile court entered a judgment denying the father’s modification petition on the basis that the father had not met his burden of proof in support of his petition to modify custody. The father timely appealed that portion of the judgment entered in favor of L.M.D.; the father did not appeal the judgment as it pertained to J.E.D.

A recitation of the evidence presented at the ore tenus hearing is not necessary to resolve the issues raised on appeal. The two arguments asserted by the father in his brief submitted to this court each involve only legal issues. “When this court is presented with a question of law in a child-custody case, we review the judgment of the trial court de novo, without affording it any presumption of correctness.” C.B. v. B.B., 998 So.2d 489, 491 (Ala.Civ.App.2008) (citing Patrick v. Williams, 952 So.2d 1131, 1138 (Ala.Civ. App.2006), and Barber v. Moore, 897 So.2d 1150, 1153 (Ala.Civ.App.2004)).

The father first argues that the juvenile court applied an incorrect legal standard. Specifically, the father contends that the juvenile court erred in requiring him to meet the evidentiary burden established in Ex parte McLendon, 455 So.2d 863 (Ala. 1984). This court has explained:

“In Ex parte McLendon, ... our supreme court held that the proper standard to be applied in child-custody cases wherein a parent has either voluntarily forfeited custody or has lost custody due to a prior judgment is whether there has been a material change in circumstances since the prior judgment; whether a change in custody will materially promote the best interests of the child; and whether the benefits of the change in custody will more than offset the inherently disruptive effect caused by uprooting the child. 455 So.2d [868,] 865 [ (Ala.1984) ].”

Barber v. Moore, 897 So.2d at 1158. The father argues that, rather than the McLendon standard, the juvenile court should have applied the best-interests-of-the-child standard applicable in dependency actions. See B.S.L. v. S.E., 826 So.2d 890, 892-93 (Ala.Civ.App.2002) (the best-interests-of-the-child standard applies in a dependency action); and O.L.D. v. J.C., 769 So.2d 299, 302 (Ala.Civ.App.1999) (same).

This court has held, however, that when a juvenile court has entered a judgment awarding custody of a dependent child to a relative, a parent seeking to modify that custody order must meet the McLendon standard in order to regain custody of the child. J.W. v. C.B., 56 So.3d 693, 699 (Ala.Civ.App.2010); M.B. v. S.B., 12 So.3d 1217, 1219-20 (Ala.Civ.App.2009). L.M.D. argues that the father “either voluntarily forfeited custody or has lost custody due to a prior judgment,” i.e., the December 17, 2008, judgment. See Barber v. Moore, 897 So.2d at 1153. Therefore, she contends, the father was required to meet the McLendon standard.

The father does not dispute the existence of the December 17, 2008, judgment or that it awarded J.E.D. and L.M.D. legal and physical custody of the child. Rather, on appeal, he disputes the validity of that prior judgment. However, as already indicated, the father did not appeal the December 17, 2008, judgment, and, in his February 2009 Rule 60(b) motion, the father asserted the same arguments concerning that judgment that he currently asserts before this court. Although the juvenile court granted the father’s Rule 60(b) motion, J.E.D. and L.M.D. successfully petitioned this court for a writ of mandamus with regard to that ruling. Accordingly, this court’s May 7, 2009, order granting the petition for a writ of mandamus and directing the juvenile court to vacate its March 16, 2009, order became the law of the case. Ex parte King, 821 So.2d 205, 209 (Ala.2001). Even assuming that the father had, in the current action, again challenged the validity of the December 17, 2008, judgment, the juvenile court would have been without authority to ignore the effect of that judgment. Ex parte King, supra.

The juvenile court properly concluded that the father was required to meet the McLendon standard in order to modify the December 17, 2008, judgment awarding custody of the child to J.E.D. and L.M.D. Accordingly, we cannot say that the father has demonstrated error with regard to this issue. We note that the father has not argued on appeal that the juvenile court erred in determining that he had not met his evidentiary burden under Ex parte McLendon, supra. Accordingly, that argument is waived. Pardue v. Potter, 632 So.2d 470, 473 (Ala.1994) (“Issues not argued in the appellant’s brief are waived.”).

The father also argues on appeal that he should not be required to meet the McLendon standard because, he says, the

stringency of that standard violates public policy by creating a barrier to the reunification of a parent and a child. The father asks this court to “revisit current laws and standards relating to custody as they violate public policy.” The precedent the father would have this court overrule is not confined to the holdings of this court, but also encompasses opinions from the Alabama Supreme Court. See, e.g., Ex parte McLendon, 455 So.2d at 865 (stating that “[a] natural parent has a prima facie right to the custody of his or her child. However, this presumption does not apply after ... a prior [judgment] removing custody from the natural parent and awarding it to a non-parent.”). This court is bound by the precedent established by our supreme court. § 12-8-16, Ala.Code 1975 (“The decisions of the Supreme Court shall govern the holdings and decisions of the courts of appeals.... ”); Farmers Ins. Exch. v. Raine, 905 So.2d 832, 885 (Ala.Civ.App. 2004) (“Although the supreme court might choose to revisit this issue, this court is bound by precedent .... ”). Thus, even if we agreed with the father that the Ex parte McLendon standard somehow interferes with his reunification with the child, we may not overrule precedent established by our supreme court.

AFFIRMED.

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

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

MOORE, Judge,

concurring in the result.

I concur in the result. I write specially to explain why, in this case, the custody-modification standard established in Ex parte McLendon, 455 So.2d 863 (Ala.1984), does not conflict with the public policy favoring reunification of a dependent child with his or her natural parents. See § 12-15-312, Ala.Code 1975.

Section 12 — 15—101(b)(3), Ala.Code 1975, a part of the Alabama Juvenile Justice Act (“the AJJA”), § 12-15-101 et seq., Ala. Code 1975, establishes a goal for juvenile courts to

“reunite a child with his or her parent or parents as quickly and as safely as possible when the child has been removed from the custody of his or her parent or parents unless reunification is judicially determined not to be in the best interests of the child.”

In pursuit of that goal, once a child is removed from the family home for protective purposes, juvenile courts commonly order state child-welfare agencies to use reasonable efforts to assist the family in correcting the conduct, conditions, or circumstances that endangered the child so as to allow for family reunification. See generally R.T.B. v. Calhoun Cnty. Dep’t of Human Res., 19 So.3d 198, 204 (Ala.Civ. App.2009).

To safeguard the child during that rehabilitation and reunification process, the juvenile courts must provide for some alternative custodial arrangement involving temporary placement of the child with a nonparent. See generally J.B. v. Cleburne Cnty. Dep’t of Human Res., 992 So.2d 34 (Ala.Civ.App.2008). However, a judgment awarding a nonparent such “temporary protective custody” during the parental-rehabilitation and family-reunification process does not constitute a final disposition of the custody of the dependent child. See S.P. v. E.T., 957 So.2d 1127, 1131-32 (Ala. Civ.App.2005) (explaining that dependency proceedings often involve a series of ap-pealable temporary custody orders before a final “permanent” dispositional judgment is entered).

“[W]hen a juvenile court places a child in the custody of a nonparent during the rehabilitation period, the transfer of custody is not intended to be so long-lasting that the child is expected to lay down roots and stabilize in the custody of the nonparent; rather, it is designed to be a temporary protective measure to safeguard the child until either the parent can safely resume custody or, reunification efforts having failed, some other permanent disposition of the [custody of the] child may be made.”

J.B., 992 So.2d at 48 (Moore, J., dissenting).

Viewing this process properly, i.e., as an aid to family reunification, it naturally follows that a judgment awarding a nonpar-ent temporary protective custody of a dependent child should be modifiable when the need for family separation no longer exists. Hence, as I explained at length in my dissent in J.B., 992 So.2d at 47-50, a parent should be able to reclaim a child from temporary protective custody in a dependency proceeding upon proof that the best interests of the child would be thereby served unless the party resisting the resumption of parental custody proves by clear and convincing evidence that the child remains dependent and that reasonable efforts to rehabilitate the parent and reunite the family have not succeeded. J.B., 992 So.2d at 50 (Moore, J., dissenting). Once a parent has established his or her fitness to resume custody, that parent should not have to bear the burden of further proving that a return to parental custody would materially promote the best interests and welfare of the child so that “ ‘[t]he positive good brought about by the modification ... more than offset[s] the inherently disruptive effect caused by uprooting the child.’” McLendon, 455 So.2d at 865 (quoting Wood v. Wood, 838 So.2d 826, 828 (Ala.Civ.App.1976)).

On the other hand, when a juvenile court enters a final dispositional judgment ending the dependency of the child, see S.P., 957 So.2d at 1131 (noting that dependency ends when a juvenile court awards custody to a proper custodian in a “final” disposi-tional judgment and the child is no longer in need of the care or supervision of the State), that judgment implies a judicial determination that family reunification no longer serves the best interests of the dependent child, effectively ending the parental-rehabilitation and family-reunification process. Y.N. v. Jefferson Cnty. Dep’t of Human Res., 67 So.3d 76, 85 (Ala.Civ. App.2011) (Moore, J., concurring in-the result). At that point, any presumption in favor of parental custody dissolves, see generally M.A.J. v. S.B., 73 So.3d 1287, 1291 (Ala.Civ.App.2011), and the law shifts its focus from preserving family integrity to securing the safety and stability of the child in the new custodial arrangement. A final dispositional judgment necessarily intends that the child will stabilize in his or her new home environment and develop “ ‘those roots necessary for the child’s healthy growth into adolescence and adulthood.’ ” McLendon, 455 So.2d at 863 (quoting Wood v. Wood, 333 So.2d at 828). Accordingly, after the entry of a final dis-positional judgment in a dependency proceeding, a parent can no longer rely on the general public policy in favor of family reunification. However, as a long line of cases have held, correctly so, a parent may then reclaim custody of the child only by meeting the McLendon standard, i.e., by proving a material change of circumstances since the entry of that judgment that demonstrate that the best interests and welfare of the child would be materially promoted by returning the child to the custody of the parent. See, e.g., S.B.L. v. E.S., 865 So.2d 1214 (Ala.Civ.App.2003); A.H. v. R.M., 793 So.2d 799 (Ala. Civ.App. 2001); and In re F.W., 681 So.2d 208, 211 (Ala.Civ.App.1996).

Having carefully considered the terms of the December 17, 2008, judgment entered by the Baldwin Juvenile Court (“the juvenile court”), and the circumstances surrounding its rendition, I conclude that that judgment constitutes a final disposition of the custody of a dependent child that may be modified only by satisfying the McLen-don standard.

D.E.F. (“the father”) contends that the judgment arose from an agreement between himself and L.M.D. and J.E.D. at a time when the Baldwin County Department of Human Resources (“DHR”) had established a permanency plan to reunite L.L.F. (“the child”) with the father. According to the father, he did not want the child to be in a foster home with strangers during the reunification process, so he agreed with L.M.D. and J.E.D. that they would assume custody of the child only temporarily and that they would cooperate with the father in his efforts to rehabilitate himself and reunite with the child. However, the record reflects that the December 17, 2008, judgment resulted from an agreement recited by the parties in open court on December 15, 2008. Pursuant to that agreement, the father stipulated to the dependency of the child, which DHR had alleged resulted from physical abuse by the father and R.F., the child’s stepmother, and consented to L.M.D. and .J.E.D.’s assuming custody of the child. Despite specific questioning by the juvenile court as to any undisclosed terms, the father did not reveal that the parties intended that custody to be temporary while the father rehabilitated himself. On the other hand, the father explicitly agreed that DHR would maintain custody of the child’s three stepsiblings, that DHR would use reasonable efforts to reunite those children with the father and R.F., and that their dependency cases would remain open and subject to review in three months.

The December 17, 2008, judgment, which was expressly intended to incorporate the agreement of the parties, clearly does not indicate in any manner that the award of custody to L.M.D. and J.E.D. was intended only for temporary protective purposes while the father underwent rehabilitation or DHR used reasonable efforts to reunite the child with the father. On its face, the judgment terminates the dependency action by awarding unconditional legal and physical custody of the child to L.M.D. and J.E.D., closing the case, and relieving DHR of any further supervision over the matter. See GM. v. T.W., 75 So.3d 1181, 1184 (Ala.Civ.App. 2011) (holding that judgment that indicated “[f]ile closed” and that relieved county department of human resources of supervision terminated dependency proceeding). If the father believed that the December 17, 2008, judgment erroneously failed to incorporate the entirety of the oral agreement reached by the parties in open court, the father should have moved to set aside the judgment within 14 days, see Rule 1(B), Ala. R. Juv. P., which he did not. As a result, the unambiguous terms of that judgment bind the father and the court system as to the nature of the custody awarded to L.M.D. and J.E.D.

Because of the ramifications it has on the family unit, a final dispositional judgment awarding custody of a dependent child to a nonparent cannot be entered lightly. All manner of procedures are instituted in dependency proceedings to assure that parents are not deprived of the custody of their children without notice and a meaningful and fair opportunity to contest the action. See, e.g., § 12-15-305, Ala.Code 1975 (requiring appointment of counsel for indigent parents in dependency proceedings). Substantively, the law requires clear and convincing evidence of the continuing dependency of the child. See generally D.M.P. v. State Dep’t of Human Res., 871 So.2d 77 (Ala.Civ.App.2003) (authored by Murdock, J., with Crawley, J., concurring, and Yates, P.J., and Thompson and Pittman, JJ., concurring in the result). During a dependency proceeding, out of respect for the fundamental right to family integrity, a parent is entitled to strict observance of those procedural and substantive safeguards. See Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (“The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents....”). Accordingly, such a judgment ordinarily re-fleets a careful and considered determination that the family relationship must be disintegrated in order to protect the child from harm.

In this case, the father, by stipulating to the dependency of the child, basically agreed that the child was in danger of physical abuse if returned to the family home. By consenting to the unconditional award of custody of the child to L.M.D. and J.E.D., the father essentially agreed that it was not in the child’s best interests to reunite with the family. In other words, the father waived his rights under the AJJA and consented to a judgment adverse to his right to pursue family reunification. That judgment carries the same weight as any other final dispositional judgment entered without the consent of a parent. See generally Sanders v. First Bank of Grove Hill, 564 So.2d 869, 872 (Ala.1990) (“[A] consent judgment is generally entitled to the same conclusive effect as a judgment on the merits.”). Because it was judicially established in the dependency proceedings that the goal of family reunification could not be achieved, the father cannot rely on any principles favoring family reunification in his custody-modification action. Thus, the juvenile court did not violate public policy by applying the McLendon standard in this case, and its judgment is therefore due to be affirmed.

      . R.F. is not the mother of the child. The record and briefs before this court do not indicate that the child’s mother, although served with process, has been involved in any of the litigation concerning the child.

      . The father filed his notice of appeal after the juvenile court's oral ruling but before the entry of the January 12, 2011, final judgment. The father’s notice of appeal is deemed timely filed. See Hood v. Hood, 23 So.3d 1160, 1162 (Ala.Civ.App.2009) ("The ... notice of appeal is deemed to have been held in abeyance until the entry of that final judgment, see Rule 4(a)(4), Ala. R.App. P., and the appeal is timely.”).

      . In the current modification action, the father did not file a claim seeking to vacate the December 17, 2008, judgment. Although the father arguably attempted to try that issue by the implied consent of the parties pursuant to Rule 15(b), Ala. R. Civ. P., given our conclusion that the claim was barred by the doctrine of law of the case, this court need not determine whether he properly did so.

      . In J.B., the Cleburne County Department of Human Resources held legal custody of the child at the time the parents petitioned to regain custody of the child. Hence, I wrote that "the state” bears the burden of proving continuing dependency and the failure of reasonable efforts to reunite the family. 992 So.2d at 50 (Moore, J., dissenting). I believe the same standard should apply when an individual nonparent holds temporary protective custody of a child in the same context.

      . L.M.D. and J.E.D. dispute that contention.

      . In February 2009, the father did file a Rule 60(b), Ala. R. Civ. P., motion seeking to have the judgment vacated, but that motion was not based on any error committed by the juvenile court in drafting the judgment. In his Rule 60(b) motion, the father maintained that L.M.D. had defrauded him into agreeing to the entry of the December 17, 2008, judgment by falsely stating that she would cooperate with him in his efforts to reunite with the child when she had no intention of doing so. At the hearing on the motion, the father presented no evidence to prove his fraud allegations; nevertheless, the juvenile court granted the motion based on its conclusion that its decision to treat the child differently from his three stepsiblings had violated the due-process rights of the child, a theory not advanced by the father in his Rule 60(b) motion'and not proven by any evidence in the record. This court issued a writ of mandamus to the juvenile court to vacate its order granting the Rule 60(b) motion, Ex parte J.D., 51 So.3d 1134 (Ala.Civ.App.2009) (table), thus reinstating the December 17, 2008, judgment. Our issuance of -the writ of mandamus does not in any way preclude the father from arguing the nature of the restored judgment and its effect on his burden of proof in his subsequent custody-modification action.


author: PER CURIAM.

text:
    Danny W. TURNER v. Willie MOORE et al.
    2100523.
    Court of Civil Appeals of Alabama.
    July 29, 2011.

      Danny W. Turner, pro se.
    Anne Adams Hill, gen. counsel, and Kathryn D. Anderson, asst. atty. gen., Alabama Department of Corrections, for ap-pellees.
   PER CURIAM.

Danny W. Turner appeals from the judgment entered in favor of Willie Moore, Lindsey Self Smith, and Emmett J. Graham (hereinafter collectively “the defendants”). In his complaint, Turner alleged that the defendants were liable for various torts because, he said, they improperly withheld $24 from money deposited into his Prisoner Money on Deposit (“PMOD”) account to pay for medical co-pays. Turner asserts that, pursuant to the regulations of the Alabama Department of Corrections (“the DOC”), he was exempt from having to pay the co-pays because, he says, he is a chronic-care patient.

On January 27, 2011, the defendants filed a motion for a summary judgment and attached several exhibits to the motion. The next day, January 28, 2011, the trial court entered a judgment granting the defendants’ motion and dismissing Turner’s action. The trial court did not state its basis for the dismissal. Turner appealed on February 8, 2011.

Turner contends that the trial court erred in entering a judgment in favor of the defendants without giving him the opportunity to respond to their motion and because genuine issues of material fact exist that would preclude a summary judgment. At the outset, the defendants assert that, because Turner did not file a postjudgment motion challenging the trial court’s decision to grant their summary-judgment motion or challenging its having granted the motion before Turner had had an opportunity to respond, neither issue raised by Turner has been preserved for appellate review.

The defendants correctly point out that

“[this court will not place a trial court ‘ “ ‘in error on matters which the record reveals it neither ruled upon nor was presented, the opportunity to rule upon.”” Verneuille [v. Buchanan Lumber of Mobile, Inc.], 914 So.2d [822,] 824 [ (Ala.2005) ] (quoting J.K. v. Lee County Dep’t of Human Res., 668 So.2d 813, 817 (Ala.Civ.App.1995), quoting in turn Wilson v. State Dep’t of Human Res., 527 So.2d 1822, 1324 (Ala.Civ.App. 1988) (emphasis added in Vemeuille)).”

A.W., by and through Hogeland v. Wood, 57 So.3d 751, 759 (Ala.2010).

Because Turner never raised in the trial court the issue of whether the trial court erred in entering the judgment without allowing him the opportunity to respond to the defendants’ motion, the trial court did not have the opportunity to rule on that issue. Thus, we agree with the defendants that the issue of the timing of the entry of the judgment cannot be considered on appeal. However, as to the propriety of the judgment itself, that issue was squarely before the trial court on the defendants’ motion. The issue before the trial court was whether the defendants had met their burden of demonstrating they were entitled to a judgment based upon the pleadings or on the materials submitted to the trial court. Because that issue was considered and decided by the trial court, this court can consider the propriety of the judgment.

In reviewing whether the trial court erred in dismissing Turner’s action, we first note that, although the defendants titled their motion as one seeking a summary judgment, “[i]t is well settled that ‘[t]his Court will look at the substance of a motion rather than its title, to determine how that motion is to be considered under the Alabama Rules of Civil Procedure.’ ” Brasfield & Gorrie, L.L.C. v. Soho Partners, L.L.C., 35 So.3d 601, 604 (Ala.2009) (quoting Pontius v. State Farm Mut. Auto. Ins. Co., 915 So.2d 557, 562-63 (Ala. 2005)). The substance of the defendants’ motion indicates that they were seeking a dismissal of the action on the grounds that Turner’s complaint failed to establish that any act or omission of the defendants violated any of Turner’s constitutional rights; that Turner had failed to state a claim upon which relief could be granted; that Turner had failed to avail himself of administrative remedies before bringing this action; that they were not proper parties to the action; and that, to the extent they were sued in their official capacities under 42 U.S.C. § 1983, as employees of the State of Alabama, they could not be held liable for damages. To the extent they were sued in their individual capacities, the defendants asserted that the were protected from liability by the doctrine of qualified immunity.

We cannot determine from the record whether the trial court considered the exhibits attached to the defendants’ motion when it entered the judgment. “ ‘If matters outside the pleadings are presented to and considered by the trial court, then the motion for a judgment on the pleadings must be treated as a motion for a summary judgment. See Rule 12(c), Ala. R. Civ. P. Otherwise, in deciding a motion for a judgment on the pleadings, the trial court is bound by the pleadings. See Stockman v. Echlin, Inc., 604 So.2d 393, 394 (Ala.1992).’ ” Medlock v. Safeway Ins. Co. of Alabama, 15 So.3d 501, 507 (Ala.2009) (quoting Universal Underwriters Ins. Co. v. Thompson, 776 So.2d 81, 82-83 (Ala.2000)). For purposes of this opinion, we will assume that the trial court did consider the evidence the defendants submitted in support of their motion; therefore, we will use the standard applicable in reviewing the propriety of a summary judgment.

“Summary judgment is appropriate only when ‘there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.’ Rule 56(c)(3), Ala. R. Civ. P., and Dobbs v. Shelby County Economic & Indus. Dev. Auth, 749 So.2d 425 (Ala.1999). The court must accept the tendencies of the evidence most favorable to the nonmoving party and must resolve all reasonable doubts in favor of the nonmoving party. System Dynamics Int’l, Inc. v. Boykin, 683 So.2d 419 (Ala.1996). In reviewing a summary judgment, an appellate court, de novo, applies the same standard as the trial court. Dobbs, supra.

Ex parte Kraatz, 775 So.2d 801, 803 (Ala. 2000).

“Once the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce ‘substantial evidence’ as to the existence of a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989); Ala. Code 1975, § 12-21-12. ‘[Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assur. Co. of Fla., 547 So.2d 870, 871 (Ala.1989).”

Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038-39 (Ala.2004).

In their answer to Turner’s complaint, the defendants admitted that money was deducted from Turner’s PMOD account for co-pays that they claimed Turner owed for eight medical visits he had made while incarcerated at the Elmore Correctional Facility and two other prisons. As mentioned, Turner contended that, because he is a chronic-care patient, DOC regulations exempt him from having to pay the co-pays. The defendants asserted that a summary judgment was proper because, they say, in withholding the money Turner allegedly owed for medical co-pays, Turner’s constitutional rights were not infringed. In support of their argument, the defendants cited caselaw from both Alabama and federal courts approving DOC’s practice of charging inmates medical co-pays and finding that such charges could be imposed without violating inmates’ constitutional rights. However, DOC Administrative Regulation No. 601, § IV.C.l., a copy of which the defendants attached to their motion, states that “inmates will not be charged” a co-pay for medical visits to chronic-care clinics, among several other enumerated reasons. In Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), the Supreme Court of the United States discussed what constitutes a constitutionally protected property interest:

“To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined. It is a purpose of the constitutional right to a hearing to provide an opportunity for a person to vindicate those claims.
“Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.”

Therefore, the regulation stating that an inmate will not be charged a medical copay under certain circumstances does create a property interest entitled to protection under the Due Process Clause of the Fourteenth Amendment to the United States Constitution and the Alabama Constitution of 1901, Art. I, § 6.

In his complaint, Turner alleged that he is a chronic-care patient. Therefore, at a minimum, a genuine issue of material fact exists as to whether, pursuant to DOC’s own regulations, the co-pays at issue here were improperly deducted from his PMOD account. Accordingly, we conclude that the defendants failed to demonstrate that there was no genuine issue of material fact or that they were entitled to a judgment as a matter of law. Because they failed to meet their burden, see Dow, 897 So.2d at 1038-39, the burden did not shift to Turner to produce substantial evidence of a genuine issue of material fact, and the trial court erred in entering the summary judgment.

The defendants also contend that they were immune from liability under “all applicable immunities,” including qualified, absolute, discretionary-function, and state-agent immunity. According to the pleadings submitted by all the parties, each of the defendants was an employee at the Elmore Correctional Facility, where Turner was an inmate at the time this civil action was filed. The complaint states that each defendant is being sued individually and that he or she acted under the color of law. In other words, even though Turner did not state the specific “tort” upon which he was basing his cause of action, it appears that he asserted claims against the defendants pursuant to 42 U.S.C. § 1983. That statute provides, in pertinent part,

“[ejvery person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in any action at law, suit in equity, or other proper proceeding for redress.... ”

This court recently addressed the application of immunity to § 1983 actions.

“In Will v. Michigan Department of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989), the United States Supreme Court concluded that a state was not a ‘person’ subject to suit under § 1983. Id. at 65-66. The Court also concluded that actions filed pursuant to § 1983 and asserting claims for damages against government officials or employees in their official capacities were, in essence, claims asserted against the state itself. Thus, the Court concluded, such claims were no different from claims asserted against the state itself. Id. at 71. The Court recognized, however, that a state official in his or her official capacity, when sued for injunc-tive relief, would be a ‘person’ under § 1983 because ‘“official-capacity actions for prospective relief are not treated as actions against the State.” ’ Id. at 71 n. 10 (quoting Kentucky v. Graham, 473 U.S. 159, 167 n. 14, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985)). See also Griswold v. Alabama Dep’t of Indus. Relations, 903 F.Supp. 1492, 1500 n. 7 (M.D.Ala.1995) (applying the rationale of Will v. Michigan Dep’t of State Police, supra, to conclude that the Alabama Department of Industrial Relations was immune from suit in former employee’s § 1983 action; also recognizing that governmental officials or governmental employees may be sued in their official capacities but only for prospective in-junctive relief).

“Against the backdrop of Will, supra, and Griswold, supra, we consider the claims and defenses asserted in this action. Watkins named the Alabama Department of Corrections as a defendant in this case. As recognized in Griswold, a state agency, as an arm of the state, is immune from suit in a § 1983 action. Thus, the trial court properly dismissed Watkins’s claims against the Department of Corrections.

“Watkins also named as defendants in this action Warden Mitchem, Captain Wallace, and Lieutenant Halbrooks. From our reading of the complaint, it is unclear whether Watkins intended to assert claims against these defendants in their official capacities, in their individual capacities, or both. At this stage of the litigation, we must construe the complaint liberally in favor of Watkins. Medlock v. Safeway Ins. Co. of Alabama, 15 So.3d at 507. Thus, we read the complaint as asserting claims against the individual defendants in both their official and individual capacities.

“In the defendants’ answer, they stated: ‘The defendants named in their official capacity plead the affirmative defense of sovereign immunity.’ Sovereign immunity, arising pursuant to the Alabama Constitution of 1901, § 14, provides no protection to the defendants because ‘[sjection 14 immunity has no applicability to federal-law claims.’ Bedsole v. Clark, 33 So.3d 9, 13 (Ala.Civ.App.2009) (rejecting defendants’ argument that they were entitled to a summary judgment on plaintiffs 42 U.S.C. § 1983 claim on the basis of sovereign immunity). See also Ex parte Russell, 31 So.3d 694, 696 (Ala. Civ.App.2009) (actions seeking a declaratory judgment or actions seeking to enjoin state officials from enforcing an unconstitutional law are not subject to sovereign immunity). But see Will, supra (recognizing that governmental officials and governmental employees are subject to suit in § 1983 actions for prospective injunctive relief); and Gris-wold, supra (same). Because Watkins’s complaint asserted only federal-law claims, the trial court could not have properly granted the individual defendants, named in their official capacities, a judgment on the pleadings on the basis of sovereign immunity. To the extent Watkins sought monetary damages against the individual defendants in their official capacities, however, the trial court’s judgment in favor of the individual defendants is affirmed because claims for such relief are barred under § 1983. See Will, supra; and Griswold, supra.

“The individual defendants also asserted in their answer: ‘The defendants named in their individual capacity plead the affirmative defense of qualified immunity.’ Qualified immunity applies only to governmental officials and governmental employees sued in their individual capacities. See Flood v. State of Alabama Dep’t of Indus. Relations, 948 F.Supp. 1585, 1547 (M.D.Ala.1996) (discussing application of qualified immunity). In Ex parte Madison County Board of Education, 1 So.3d 980 (Ala. 2008), our supreme court stated:

“ ‘ “ ‘Qualified immunity is designed to allow government officials to avoid the expense and disruption of going to trial, and is not merely a defense to liability.’ Hardy v. Town of Hayne-ville, 50 F.Supp.2d 1176, 1189 (M.D.Ala.1999). ‘An official is entitled to qualified immunity if he is performing discretionary functions and his actions do “ ‘not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” ’ Hardy, 50 F.Supp.2d at 1189 (quoting Lancaster v. Monroe County, 116 F.3d 1419, 1424 (11th Cir.1997)).” ’

“Ex parte Madison County Bd. of Educ., 1 So.3d at 990 (quoting Ex parte Alabama Dep’t of Youth Servs., 880 So.2d 393, 402 (Ala.2003)).

“In Hardy v. Town of Hayneville, 50 F.Supp.2d 1176 (M.D.Ala.1999), an inmate brought claims, pursuant to 42 U.S.C. § 1983, against an arresting police officer, the chief of police, the may- or, and the Town of Hayneville. Upon consideration of the defendants’ motion to dismiss the inmate’s claims, the United States District Court for the Middle District of Alabama discussed at length the law applicable to the affirmative defense of qualified immunity. The court stated:

“ ‘[The] Defendants ... have asserted the defense of qualified immunity in a Rule 12(b)(6) motion to dismiss, and they are entitled to qualified immunity at this stage in the proceedings if the Plaintiffs[’] complaint fails to allege a violation of a clearly established constitutional right. Santa-morena v. Georgia Military College, 147 F.3d 1337, 1340 (11th Cir.1998). To overcome this immunity, a plaintiff has the burden of “pointing to case law which predates the official’s alleged improper conduct, involves materially similar facts, and truly compels the conclusion that the plaintiff had a right under federal law.” Id. When considering whether the law applicable to certain facts is clearly established, the facts of the case need not be the same, but must be materially similar. Id. at 1339. Only in exceptional cases are the words of a federal statute or constitutional provision specific enough, or the general constitutional rule already identified in decisional law so clearly applicable, so that specific case law is not required. See id. at 1339 n. 6. “If case law, in factual terms, has not staked out a bright line, qualified immunity almost always protects the defendant.” Lassiter v. Alabama A & M Univ., Bd. of Trustees, 28 F.3d 1146, 1150 (11th Cir.1994) (internal quotations and citations omitted).’
50 F.Supp.2d at 1189-90. Because in response to the individual defendants’ motions to dismiss the inmate in Hardy failed to provide the necessary caselaw, the district court granted the motions to dismiss as to the defendants sued in their individual capacities. Id. at 1190.
“Upon consideration of the claims asserted in Watkins’s complaint and the defenses asserted in the defendants’ answer, the trial court entered a judgment in favor of the defendants. Because the trial court considered only those two pleadings, the trial court could not have possibly considered any response filed by Watkins to the defendants’ claim of qualified immunity. Thus, the trial court has not afforded Watkins the opportunity to rebut the defendants’ claim that they were entitled to qualified immunity. To the extent the trial court entered a judgment in favor of the individual defendants on the basis of that affirmative defense, that judgment was prematurely entered.”

Watkins v. Mitchem, 50 So.3d 485, 489-91 (Ala.Civ.App.2010).

In his complaint, Turner stated that he was suing Moore, Smith, and Graham in their individual capacities. As explained in Watkins, supra, the immunity applicable to governmental officials and governmental employees sued in their individual capacities is qualified immunity.

“ ‘ “Qualified immunity protects government officials performing discretionary functions from suits in their individual capacities unless their conduct violates ‘clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Dalrymple v. Reno, 334 F.3d 991, 994 (11th Cir.2003) (quoting Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (quoting Harbw v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982))), cert. denied, 541 U.S. 935, 124 S.Ct. 1655, 158 L.Ed.2d 355 (2004); see also Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir.2002) (ruling that qualified immunity “protect[s] from suit ‘all but the plainly incompetent or one who is knowingly violating the federal law1 ” (quoting Willingham v. Loughnan, 261 F.3d 1178, 1187 (11th Cir.2001))). When a government official seeks summary judgment based on qualified immunity, courts apply a two-step test to determine whether qualified immunity is appropriate. First, “[a] court required to rule upon the qualified immunity issue must consider ... this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right?” Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). When a court answers this question affirmatively, the court moves to the second step, which is to consider whether the constitutional right was “clearly established” on the date of the violation. Id.’
“Andujar v. Rodriguez, 486 F.3d 1199, 1202-03 (11th Cir.2007).”

Bedsole v. Clark, 33 So.3d 9, 13 (Aa.Civ. App.2009). As previously discussed, if Turner proves that he was exempt from having to make the co-pays, then he has a constitutionally protected property interest to the money withdrawn from his PMOD account. The DOC regulation that was in effect at the time the defendants allegedly withheld the money at issue, a copy of which the defendants submitted to the trial court in support of their motion for a summary judgment, states that inmates will not be charged a medical co-pay for visits to chronic-care clinics. Therefore, if Turner is able to demonstrate that he was a chronic-care patient at the time the money was withheld from his PMOD account, then a genuine issue of material fact exists as to whether a reasonable person should have known that withholding the money was a violation of Turner’s constitutionally protected rights.

The defendants contend that the summary judgment was proper because, they say, they are not the parties responsible for initiating the withholding of money from PMOD accounts. Their affidavits indicate that, at the time of the conduct complained of, Moore was a captain at the Elmore Correctional Facility (“the prison”) and was responsible for overseeing the security of the prison; Smith was an account clerk at the prison and was responsible for PMOD accounts at the prison, including placing holds on money or deducting medical co-pays from those accounts; and Graham was the supervisor of the prison’s business office who occasionally performed Smith’s duties. Whether they were in fact the parties responsible for the wrongful conduct Turner alleged in his complaint is a question of fact. Based on the record before us, we cannot determine whether the defendants were, in fact, responsible for the conduct at issue.

The defendants also contend that “Turner failed to establish that he had challenged his medical co-pay fees in accordance with the process set forth in Regulation 601.” We read that contention as an argument by the defendants that summary judgment was proper because Turner failed to exhaust his administrative remedies.

“‘To be sure, Alabama recognizes the doctrine of exhaustion of administrative remedies. City of Huntsville v. Smartt, 409 So.2d 1353, 1357 (Ala. 1982). “This doctrine ‘requires that where a controversy is to be initially determined by an administrative body, the courts will decline relief until those remedies have been explored and, in most instances, exhausted.’ ” Id. (quoting Fraternal Order of Police, Strawberry Lodge No. W v. Entrekin, 294 Ala. 201, 209, 314 So.2d 663, 670 (1975)).’

“Patterson v. Gladwin Corp., 835 So.2d 137, 141-42 (Ala.2002). There are recognized exceptions to that doctrine, including

“ “when (1) the question raised is one of interpretation of a statute, (2) the action raises only questions of law and not matters requiring administrative discretion or an administrative finding of fact, (3) the exhaustion of administrative remedies would be futile and/or the available remedy is inadequate, or (4) where there is the threat of irreparable injury.’
“Ex parte Lake Forest Prop. Owners’ Ass’n, 603 So.2d 1045, 1046-47 (Ala. 1992).”

City of Graysville v. Glenn, 46 So.3d 925, 929 (Ala.2010).

In Fraternal Order of Police, Strawberry Lodge No. 40 v. Entrekin, 294 Ala. 201, 209, 314 So.2d 663, 670 (1975), our supreme court approved the “exhaustion of administrative remedies” doctrine found in United States v. Western Pacific R.R., 352 U.S. 59, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956), which applies “ “where a claim is cognizable in the first instance by an administrative agency alone.’ ” Entrekin, 294 Ala. at 210, 314 So.2d at 673 (quoting Western Pacific R.R., 352 U.S. at 63). Under that doctrine “ ‘judicial interference is withheld until the administrative process has run its course.’ ” Id.

“ ‘In Hall v. City of Dothan, 539 So.2d 286 (Ala.Civ.App.1988), the Court of Civil Appeals discussed the purpose of the requirement that public employees exhaust administrative remedies before obtaining judicial review:
“ ‘ “The exhaustion doctrine allows an agency to fully develop technical issues and factual records within its particular area of expertise prior to judicial review. The agency can thereby have the first opportunity to correct any errors it may have made, and further judicial action may become unnecessary.”
“ ‘539 So.2d at 289.’
“Talton Telecomm. Corp. v. Coleman, 665 So.2d 914, 919 (Ala.1995).”

Ex parte Alabama Dep’t of Postsecondary Educ., 50 So.3d 439, 444 (Ala.Civ.App. 2009).

In this case, Administrative Regulation No. 601, § VII., provides:

“A. Inmates who complain that they have been charged a co-payment that is not authorized by this regulation shall send an Inmate Request Slip to the Warden or his/her designee asking that the charge be reviewed.
“B. The Warden or his/her designee will review the complaint to ensure that the complaining inmate initiated the health care visit for which a co-pay was charged. The Warden or his/her designee will determine whether an inmate is entitled to a waiver of the co-payment under the criteria set forth in Paragraph IV/C of this regulation.
“C. Under no circumstances will a Warden or his/her designee override a medical determination as to whether an inmate’s complaint is a serious medical need. However, the Warden or his/her designee may request that the administrator of the health care unit reconsider this finding.”

In his affidavit, Graham, the business manager at the prison, acknowledged that Turner had sent a “request slip” to Smith in the business office, but, Graham said, he returned the slip because Turner had included Smith’s first name in the address. Graham said prisoners are not allowed to use employees’ first names, either orally or in writing. Graham said he did not receive a second “request slip” from Turner.

Regulation No. 601 does not provide the inmate challenging the charged co-pay with a hearing or establish a mechanism through which the inmate may submit evidence in support of his complaint; it only states that the inmate shall file a complaint with the warden regarding the co-pay. The regulation also does not provide a mechanism through which the inmate may appeal the warden’s decision regarding the propriety of the co-pay to the DOC or to an administrative-law judge. Furthermore, simply reviewing an inmate’s complaint does nothing to advance the purpose of requiring the exhaustion of administrative remedies, that is, the review of an inmate’s complaint by a warden does nothing to allow the DOC “to fully develop technical issues and factual records within its particular area of expertise prior to judicial review.” Hall v. City of Dothan, 539 So.2d 286, 289 (Ala.Civ.App.1988).

From the record before us, we cannot say that having a warden or “his/ her designee” review an inmate’s complaint regarding whether a medical copay was properly assessed constitutes a determination of a controversy by an administrative body, as contemplated by the doctrine of exhaustion of administrative remedies, so as to preclude judicial review of Turner’s § 1983 complaint.

For the reasons set forth above, the judgment is reversed, and the cause is remanded to the trial court for further proceedings consistent with this opinion. In reaching our decision, we express no opinion on the likelihood that Turner will ultimately prevail in this action; we hold only that the trial court erred in entering the summary judgment in favor of the defendants at this point in the litigation.

REVERSED AND REMANDED.

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

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

      . In his complaint, Turner named Moore and Lindsey Smith as defendants, as well as individuals named Self and Graham, whose first names Turner said were unknown to him. An attorney for the Alabama Department of Corrections submitted a notice of appearance on behalf of Moore, Lindsey Self Smith, and Graham.