author: IRVING, P.J.,

text:
    John W. BARRETT a/k/a John William Barrett, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-01316-COA.
    Court of Appeals of Mississippi.
    July 23, 2013.
    John W. Barrett, Lexington, appellant, pro se.
    Office of the Attorney General by Lisa Lynn Blount, attorney for appellee.
    Before IRVING, P.J., BARNES and MAXWELL, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. John W. Barrett filed a petition for a writ of habeas corpus in the Lauderdale County Circuit Court, asserting that the indictment was defective and did not charge him with murder. He further argued that he was being falsely imprisoned as a result of the allegedly defective indictment. The circuit court, treating the petition as a motion requesting post-conviction relief (PCR), denied the motion. Feeling aggrieved, Barrett appeals and argues that the circuit court erred in treating the petition as a PCR motion, in denying the motion, and in its interpretation of what is required for an indictment to be constitutionally valid.

¶ 2. Finding that the circuit court had no jurisdiction to consider the motion, we vacate its judgment and dismiss this appeal.

FACTS

¶ 3. In February 2001, Barrett and Mary Ann Adams were convicted of murder for the death of Mary Ann Woolf. Both Adams and Barrett appealed their convictions, which were affirmed by this Court in 2002. Adams v. State, 851 So.2d 366, 370 (¶ 1) (Miss.Ct.App.2002). Since his conviction, Barrett has filed three applications with the Mississippi Supreme Court for leave to seek post-conviction relief in the circuit court. The supreme court has denied all of Barrett’s requests and, in its order denying Barrett’s last request, warned him against future frivolous filings. He was assessed a $100 sanction in November 2011 after filing his third application.

¶ 4. In February 2012, Barrett filed a petition for a writ of habeas corpus in the circuit court, claiming that the circuit court did not have jurisdiction to try or convict him because the indictment was defective. The indictment reads, in pertinent part:

The [g]rand [j]ury for the State of Mississippi, taken from the body of good and lawful men and women of Lauder-dale County ... in the name and by the authority of the State of Mississippi[,] ... present that MARY ANN ADAMS [and] JOHN WILLIAM BARRETT in Lauderdale County, Mississippi, on or about the 7th day of June, A.D., 1998, did willfully, unlawfully, and feloniously and of her malice aforethought or with deliberate design to effect the death of MARY ANN WOOLF, did kill and murder MARY ANN WOOLF, a human being, without authority of law and not in necessary self[-] defense, by drowning her and, if not this greater crime, then the lesser crime of [mjanslaughter for having killed MARY ANN WOOLF by drowning her without any design to effect her death; in violation of Mississippi Code Annotated Section 97-3-19(1) and Section 97-3-33 ... against the peace and dignity of the State of Mississippi.

(Emphasis added).

¶ 5. Barrett claimed that because the indictment contained the word “her” in reference to the defendants, it only indicted Adams for murder and did not indict him for any crime. He further contended that he had been falsely imprisoned as a result of the defective indictment. As stated, the circuit court considered Barrett’s petition on the merits and disposed of it as a PCR motion, stating that Barrett merely pointed out a clerical error in the indictment and that the indictment contained all of the necessary elements mandated by the Uniform Circuit and County Court Rules, the Mississippi Code, and the case law from our supreme court.

¶ 6. Additional facts, as necessary, will be related in the analysis and discussion of the issue.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 7. Barrett contends that the circuit court erred in treating his petition as a PCR motion. We disagree. The Uniform Post-Conviction Collateral Relief Act (UPCCRA) “abolishes the common[-]law writs relating to post-conviction collateral relief, including ... post-conviction habeas corpus, as well as statutory post-conviction habeas corpus.” Miss. Code Ann. § 99-39-3(1) (Rev.2007). In repealing post-conviction use of habeas corpus, the UPCCRA “implemented a motion framework specifically for post-conviction collateral review of challenges to convictions and sentences[.]” Edmond v. Miss. Dep’t of Corr., 783 So.2d 675, 677 (¶ 8) (Miss.2001) (citations omitted). Pleadings that are “cognizable under the UPCCRA will be treated as [PCR motions] that [are] subject to the procedural rules promulgated therein, regardless of how the plaintiff has denominated or characterized the pleading[s].” Knox v. State, 75 So.3d 1030, 1035 (¶ 12) (Miss.2011) (citations omitted). Because Barrett’s petition challenged his conviction, it was cognizable under the UPCCRA. Accordingly, the circuit court properly treated Barrett’s petition as a PCR motion.

¶8. Mississippi Code Annotated section 99-39-7 (Supp.2012) provides that when a petitioner has appealed his conviction and sentence to the supreme court or this Court, and his conviction and sentence have been affirmed or his appeal has been dismissed, the petitioner must obtain permission from the Mississippi Supreme Court to file a PCR motion in the circuit court. See Wardley v. State, 37 So.3d 1222, 1224-25 (¶ 8) (Miss.Ct.App.2010). “This procedure is not merely advisory, but jurisdictional.” Cortez v. State, 9 So.3d 445, 446 (¶ 6) (Miss.Ct.App.2009) (quoting Doss v. State, 757 So.2d 1016, 1017 (¶ 6) (Miss.Ct.App.2000)). As stated, Barrett appealed his conviction and sentence, and this Court affirmed his conviction and sentence. Our supreme court did not grant Barrett permission to file a PCR motion. Therefore, the circuit court lacked jurisdiction to entertain Barrett’s motion.

¶ 9. “If the circuit court did not have jurisdiction to address the defendant’s [PCR motion], the appellate court is also without jurisdiction.” Id. (citing Wheeler v. State, 903 So.2d 756, 758 (¶ 6) (Miss.Ct.App.2005)). Accordingly, this Court has no jurisdiction to consider Barrett’s motion.

¶10. THE JUDGMENT OF THE CIRCUIT COURT OF LAUDERDALE COUNTY DENYING THE MOTION FOR POST-CONVICTION RELIEF IS VACATED, AND THIS APPEAL IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAUD-ERDALE COUNTY.

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR. ROBERTS, J., NOT PARTICIPATING.


source: Caselaw Access Project

author: MAXWELL, J.,

license: Public Domain

text:
    Sherry Chandler RAINER, Appellant v. WAL-MART ASSOCIATES, INC., Wal-Mart Stores, Inc., Lisa King, and Kimberly Turnbow, Appellees.
    No. 2012-CA-00014-COA.
    Court of Appeals of Mississippi.
    July 30, 2013.

      Clarence McDonald Leland, Jackson, attorney for appellant.
    Thomas M. Louis, Kenna L. Mansfield, Jr., Ridgeland, Shanda M. Yates, Jackson, attorneys for appellees.
    Before IRVING, P.J., BARNES and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. On October 21, 2010, Sherry Chandler Rainer, a former personnel manager at the Wal-Mart in Magee, Mississippi, sued Wal-Mart alleging she had been wrongfully arrested and charged with embezzlement. During the discovery phase of trial, Rainer’s counsel failed to timely respond to Wal-Mart’s requests for admissions. The trial court deemed the responses admitted, finding Rainer’s counsel had not offered a justifiable explanation for failing to act. Based on the deemed-admitted responses, the court granted Wal-Mart’s motion for summary judgment.

¶ 2. We find the requests at issue were properly deemed admitted. And because no factual or legal issues were then in dispute, the trial court properly granted summary judgment in Wal-Mart’s favor. We affirm.

Background

¶ 3. On October 23, 2009, Rainer was terminated by Wal-Mart and charged with embezzlement for allegedly violating store policies regarding the use of employee discounts and merchandise refunds. Specifically, Wal-Mart accused Rainer of double-dipping on refunds by obtaining an employee discount as well as a price reduction on two previously purchased Nintendo Wii video-game consoles, which she returned. After the charges against her were dismissed, Rainer sued Wal-Mart in the Simpson Court Circuit Court. She asserted claims of malicious prosecution, libel, slander, intentional infliction of emotional distress, negligence, and gross negligence.

¶ 4. On June 28, 2011, Wal-Mart served Rainer with discovery requests, including requests for admissions. When Wal-Mart did not receive Rainer’s answers within the thirty-day time period allowed under Mississippi Rule of Civil Procedure 36(a), it sent Rainer’s attorney a good-faith letter providing Rainer additional time to respond. Despite Wal-Mart’s show of good faith, Rainer’s counsel neither responded to the propounded discovery nor otherwise responded to Wal-Mart’s letter.

¶ 5. On September 15, 2011, Wal-Mart moved for summary judgment. It argued there were no genuine issues of material fact concerning liability because its requests for admissions were admitted as a matter of law. In reply, Rainer’s counsel filed a motion to withdraw admissions on October 6, 2011. His attempt to withdraw was seventy days after the thirty-day time period allowed for answers under Rule 36(a) had passed and approximately fifty-five days after receipt of Wal-Mart’s good-faith letter.

¶ 6. The court held a hearing in which Rainer’s counsel claimed to have not received Wal-Mart’s propounded discovery. And while counsel admitted receiving Wal-Mart’s good-faith letter on August 12, 2011, he insisted he had simply overlooked the portion of the letter concerning requests for admissions. The court found this reason insufficient to grant Rainer’s request to withdraw admissions. Based upon the deemed-admitted responses, the court found that there were no genuine issues of material fact concerning liability and that Wal-Mart was entitled to a judgment as a matter of law.

Discussion

I. Requests for Admissions

¶ 7. Rule 36 governs requests for admissions. Its purpose is to narrow and define issues for trial by determining which facts are not in dispute. Haley v. Harbin, 933 So.2d 261, 262 (Miss.2005) (citing Joseph L. v. Conn. Dep’t of Children & Families, 225 F.R.D. 400, 402 (D.Conn.2005); DeBlanc v. Stancil, 814 So.2d 796, 801-02 (¶ 26) (Miss.2002)). Rule 36(a) provides in pertinent part that a “matter is admitted unless, within thirty days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter[.]”

¶ 8. Under Rule 36(b), the trial court has the discretion to allow withdrawal of the deemed-admitted requests. The rule states that “the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits.” M.R.C.P. 36(b). So “[wjhile [Rule] 36 provides a harsh penalty for the failure to comply, a trial court is still given great discretion when determining whether it will allow the untimely answers to requests for admissions.” Triangle Constr. Co. v. Foshee Constr. Co., 976 So.2d 978, 981 (¶ 7) (Miss.Ct.App.2008) (citing Earwood v. Reeves, 798 So.2d 508, 515 (¶ 22) (Miss.2001)).

¶ 9. Among the discovery propounded to Rainer were the following requests for admissions:

6. Admit that [Wal-Mart] had probable cause to institute judicial proceedings against [Rainer].
7. Admit that [Wal-Mart] made no false statements concerning [Rain-er].
8. Admit that any statements made by [Wal-Mart] about [Rainer] in connection with the matters described in the Complaint were privileged in nature because they were made to police and/or other law enforcement in connection with an ongoing investigation.
9. Admit [Rainer] has no evidence that [Wal-Mart] published false statements (either verbally or in writing) to any third party other than those involved with the investigation of the matters alleged in [Rainer’s] Complaint.
10. Admit that [Wal-Mart] [is] not liable for any injury allegedly sustained by [Rainer].
11. Admit that the actions of [Rainer] were the sole proximate cause of any injury to [Rainer].

Other requests asked Rainer to admit that she had obtained a refund on the two video-game consoles knowing that the refund exceeded the amount allowed by Wal-Mart’s policies.

¶ 10. On appeal, Rainer argues the trial court should have granted her motion to withdraw the deemed-admitted responses. She claims that because her attorney did not receive the propounded discovery, she had no opportunity to respond to Wal-Mart’s discovery requests. We addressed a similar argument in Langley v. Miles, 956 So.2d 970 (Miss.Ct.App.2006).

¶ 11. In Langley, the plaintiffs counsel failed to respond to the defendant’s requests for admissions because he was undergoing treatment for cancer. Id. at 972 (¶ 5). We recognized plaintiffs counsel’s medical treatment reasonably prevented him from responding to the requests. Id. at 975 (¶ 15). But we found that even after plaintiffs counsel returned to work, more than thirty days elapsed before he responded to the outstanding discovery requests. Id. Because plaintiffs counsel offered no valid reason for his continued failure to respond, we found that the plaintiff could not withdraw the deemed-admitted responses and that summary judgment was proper. Id.

¶ 12. Similarly, Rainer’s counsel offered a reasonable explanation for his initial failure to respond — not receiving Wal-Mart’s requests for admissions. But he gave no justifiable explanation for his continued failure to respond after receipt of Wal-Mart’s good-faith letter. Upon receipt of Wal-Mart’s letter, counsel had a duty to follow up with Wal-Mart or the trial court about the outstanding discovery. However, he failed to do so. And the trial judge was not swayed by his reasons given for not following up with Wal-Mart or the court. Thus, we find it was within the trial judge’s discretion to deny Rainer’s request to withdraw the deemed-admitted responses.

II. Summary Judgment

¶ 13. The trial court found all issues of liability were conclusively established by the deemed-admitted responses and granted summary judgment in Wal-Mart’s favor.

¶ 14. Mississippi Rule of Civil Procedure 56(c) instructs that summary judgment “shall be rendered ... if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” To withstand summary judgment, the nonmoving party must produce significant probative evidence of a genuine issue for trial. Borne v. Dunlop Tire Corp., 12 So.3d 565, 570 (¶ 16) (Miss.Ct.App.2009) (citing Price v. Purdue Pharm. Co., 920 So.2d 479, 485 (¶ 16) (Miss.2006)).

¶ 15. This court reviews grants of summary judgment de novo. Conrod v. Holder, 825 So.2d 16, 18 (¶ 7) (Miss.2002). In conducting our de novo review, we view the evidence in the light most favorable to the party against whom the motion for summary judgment has been made. Leslie v. City of Biloxi, 758 So.2d 430, 431 (¶ 5) (Miss.2000) (citation omitted).

A.Defamation

¶ 16. To prove defamation, Rainer must demonstrate the following elements:

(a) [A] false statement that has the capacity to injure the plaintiffs reputation;
(b) [A]n unprivileged publication, i.e., communication to a third party;
(c) [NJegligence or greater fault on [the] part of [the] publisher; and
(d) “[E]ither actionability of [the] statement irrespective of special harm or [the] existence of special harm caused by publication.”

Speed v. Scott, 787 So.2d 626, 631 (¶ 21) (Miss.2001) (quoting Franklin v. Thompson, 722 So.2d 688, 692 (¶ 12) (Miss.1998)).

¶ 17. The deemed-admitted responses conclusively established: (1) Wal-Mart made no false statements about Rainer; (2) any statements made by Wal-Mart about Rainer in connection with the matters described in the complaint were privileged because they were made to police during the course of an ongoing investigation; (3) Rainer had no evidence that Wal-Mart had published false statements; (4) Wal-Mart was not liable for any injury sustained by Rainer; and (5) Rainer’s actions were the sole proximate cause of any alleged injury she sustained. In light of the deemed-admitted responses, Rainer could not establish the requisite elements of defamation. Therefore, summary judgment was proper on this claim.

B. Malicious Prosecution

¶ 18. To prevail on her claim of malicious prosecution, Rainer had to show by a preponderance of the evidence:

(1) [T]he institution of a proceeding; (2) by, or at the insistence of the defendant; (3) the termination of such proceeding in the plaintiffs favor; (4) malice in instituting the proceedings; (5) want of probable cause for the proceeding; and (6)the suffering of the injury or damage as a result of the prosecution.

Perkins v. Wal-Mart Stores, Inc., 46 So.3d 839, 844 (¶ 10) (Miss.Ct.App.2010) (citations omitted). Because Rainer admitted, among other things, that Wal-Mart had probable cause for the underlying criminal proceeding, the court properly granted summary judgment on this claim.

C. Intentional Inñiction of Emotional Distress

¶ 19. A claim of intentional infliction of emotional distress requires that

1. The defendant acted willfully or ■ wantonly towards the plaintiff by [committing certain described actions];
2. The defendant’s acts are ones “which evoke outrage or revulsion in civilized society”;
3. The acts were “directed at or intended to cause harm to” the plaintiff;
4. The plaintiff “suffered severe emotional distress as a direct result of the [acts] of the defendant; and”
5. “Such resulting emotional distress was foreseeable from the intentional [acts] of the defendant.”

J.R. ex rel. R.R. v. Malley, 62 So.3d 902, 906-07 (¶ 15) (Miss.2011) (quoting Miss. Practice Model Jury Instr. Civil § 21:1 (2010)). As discussed, Rainer’s deemed-admitted responses conclusively established that Wal-Mart had probable cause to institute the underlying criminal proceeding against Rainer. And thus, Wal-Mart did not act in such a way to evoke outrage or revulsion in civilized society. So the trial court properly granted summary judgment to Wal-Mart on this claim.

D. Negligence and Gross Negligence

¶ 20. Where a plaintiffs negligence claims are inextricably intertwined with his or her malicious-prosecution claim, as they are here, the negligence claims cannot survive if the malicious-prosecution claim is not viable. See McGuffie v. Herrington, 966 So.2d 1274, 1278 (¶ 10) (Miss.Ct.App.2007). Because Wal-Mart is entitled to summary judgment on Rainer’s malicious-prosecution claim, it is likewise entitled to summary judgment on Rainer’s claims of negligence and gross negligence.

Conclusion

¶ 21. Based on the deemed-admitted responses, the trial judge’s decision to grant summary judgment in Wal-Mart’s favor on all claims was proper.

¶ 22. THE JUDGMENT OF THE SIMPSON COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, FAIR AND JAMES, JJ., CONCUR.


author: ROBERTS, J.,

text:
    Reuben WILLIAMS a/k/a Rueben Williams a/k/a Reuben K. Williams a/k/a Ruben Williams, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-00411-COA.
    Court of Appeals of Mississippi.
    July 30, 2013.

      Reuben Williams, appellant, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before GRIFFIS, P.J., ROBERTS and CARLTON, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. On November 18, 2010, Reuben Williams appeared with his court-appointed attorney before the Leflore County Circuit Court and pled guilty to one count of aggravated domestic violence. On a later date, the circuit court sentenced Williams to twenty years in the custody of the Mississippi Department of Corrections (MDOC), with fifteen years to serve and five years of post-release supervision (PRS). Williams filed his motion for post-conviction relief (PCR) on September 20, 2011, and the circuit court summarily dismissed the PCR motion on April 13, 2012. It is from this summary dismissal that Williams now appeals.

FACTS AND PROCEDURAL HISTORY

¶ 2. A Leflore County grand jury indicted Williams on May 26, 2010, on one count of rape, one count of felon in possession of a firearm, one count of aggravated domestic violence, and one count of kidnapping. All charges stemmed from an April 15, 2009 incident in which Williams attacked Lakivia Greenleaf, the biological mother of his two children. After plea negotiations, Williams pled guilty to one count of aggravated domestic violence in exchange for the dismissal of the remaining three counts. Williams’s indictment for aggravated domestic violence stated:

That [Williams] ... did unlawfully, willfully, purposely and knowingly and felo-niously attempt to cause or cause bodily harm to [Greenleaf], a person with whom [Williams] has had a biological child, by striking her about her head and face with a handgun, a means likely to produce death or serious bodily harm, in violation of [Mississippi Code Annotated section 97-3-7(4) (Supp.2012) ]....

At Williams’s plea hearing, the State asserted that at trial it would prove that Williams did “willfully and unlawfully attempt to cause or cause bodily harm to [Greenleaf], a person with whom [Williams] has a biological child, by striking her about her head and face with a handgun, a means likely to produce death or serious bodily harm.” Williams’s attorney stated that the facts presented by the State were true, “[w]ith the exception of the [use of a] handgun.... [I]t may be an aggravating ... circumstance that the victim wants to bring up in sentencing, but ... we do agree that he struck her, we do agree it was aggravated, [and] we do agree that it was domestic violence.” The circuit court asked Williams whether he accepted the State’s statement of facts, with the qualification his attorney had stated, as true. Williams responded: “Yes, sir.” The circuit court accepted Williams’s guilty plea. Subsequently, Williams was sentenced to twenty years in the custody of the MDOC, with fifteen years to serve and five years of PRS.

¶ 3. Williams filed his PCR motion on September 20, 2011. The circuit court addressed each issue raised and found them all to lack merit. As a result, the circuit court summarily dismissed Williams’s PCR motion, finding that it plainly appeared from the face of the PCR motion and record that Williams was not entitled to any relief. It is from this summary dismissal that Williams now appeals. On appeal, he raises the following issues:

I. Whether the [circuit court] erred in not granting [his] motion to dismiss after [the] State failed to indict [him] in 270 days in violation of his constitutional right to [a] speedy trial.
II. Whether the [circuit court] erred in allowing [him] to plead guilty to [aggravated domestic violence] with the use of hands after [he] was indicted for [aggravated domestic violence] with the use of a deadly weapon.
III. Whether [the circuit judge] erred in sentencing [him] to [the maximum] allowed by law when [the] evidence [did not] support aggravated assault[.]
IV. Whether [the circuit court] erred in illegally amending [his] indictment changing [the substance of the indictment],
V. Whether [the circuit court] erred in not granting [his] motion for an evidentiary hearing.
VI. Whether [the circuit court] erred in not dismissing [the aggravated domestic violence] charge and [reducing it] to the lesser included offense of simple domestic violence, after deadly weapon [language] was dismissed [from the indictment] and “serious” [was no longer] a modifier of the injury....
VII. [Whether the trial court erred] in allowing [the] victim to mention two of the dismissed charges at [his] sentencing hearing.

¶ 4. Although Williams raises these issues, for the sake of clarity and judicial economy, we will combine several issues. Additionally, some issues outlined above were not addressed in Williams’s brief; therefore, we will not address them in this appeal.

STANDARD OF REVIEW

¶ 5. In State v. Santiago, 773 So.2d 921, 923-24 (¶ 11) (Miss.2000), the Mississippi Supreme Court stated that “a trial court may summarily dismiss a petition for PCR, without having held an evi-dentiary hearing, when it is clear that the petitioner is not entitled to relief under the [Uniform Post-Conviction Collateral Relief Act].” The supreme court further elaborated by stating that the “dismissal of a PCR motion is proper where ‘it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ” Id. at 924 (¶ 11) (quoting Turner v. State, 590 So.2d 871, 874 (Miss.1991)). Questions of law receive a de novo review. Russell v. State, 73 So.3d 542, 544 (¶ 5) (Miss.Ct.App.2011) (citing Williams v. State, 872 So.2d 711, 712 (¶ 2) (Miss.Ct.App.2004)).

ANALYSIS

I. INDICTMENT

¶ 6. Several of Williams’s arguments focus on his concerns about his indictment. He argues that his indictment was substantively amended when the circuit court accepted his guilty plea with the qualification that he disputed that he struck Green-leaf with a handgun. As a result of this qualification, Williams contends that he should not have been allowed to plead guilty to aggravated domestic violence once the handgun language was removed from the indictment.

¶ 7. First, we do not find anything in the record to evince that Williams’s indictment was amended, either substantively or as to form. The handgun language remained in the indictment even though Williams may dispute that he struck Greenleaf with a handgun. Mississippi permits defendants to enter Alford pleas, also known as best-interest pleas. See North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). This type of plea allows a defendant to acknowledge that the State has sufficient evidence for him to be found guilty beyond a reasonable doubt, but still maintain his innocence. Sims v. State, 102 So.3d 1227, 1230 n. 1 (Miss.Ct.App.2012). Although it is not clear whether this was an Alford plea, the circuit court was permitted to accept Williams’s guilty plea even though he may have factually disputed striking Greenleaf with a handgun. See Alford, 400 U.S. at 37, 91 S.Ct. 160. Therefore, Williams’s claim that the indictment was improperly amended is without merit, as it was never actually amended.

¶ 8. Next, Williams claims that he should not have been permitted to plead guilty to aggravated domestic violence when he only used his hands, and not a handgun, to strike Greenleaf. He contends that, at most, he could have been permitted to plead guilty to simple domestic violence. Williams pled guilty to aggravated domestic violence with the qualification that he did not use a handgun. However, when questioned about his guilt, Williams agreed with his attorney’s statement that while Williams disputed the use of the handgun, he admitted that he “struck [Greenleaf], ... it was aggravated, [and] ... it was domestic violence.” “Solemn declarations made in open court under the trustworthiness of the official oath carry a strong presumption of verity.” Rodolfich v. State, 858 So.2d 221, 223 (¶ 8) (Miss.Ct.App.2003) (citing Baker v. State, 358 So.2d 401, 403 (Miss.1978)).

¶ 9. Further, the use of a weapon is not a necessary element of aggravated domestic violence. Rather, it is sufficient if the use of one’s hands or fists “constitutes a ‘means likely to produce either death or serious bodily harm.’ ” Sellers v. State, 108 So.3d 456, 459 (¶ 7) (Miss.Ct.App.2012) (quoting Jackson v. State, 594 So.2d 20, 24 (Miss.1992)). The State does not have to prove that the victim suffered serious bodily injury, as “[m]ere ‘bodily injury’ is sufficient so long as it was caused with ‘other means likely to produce death or serious bodily harm.’” Id. Although the record does not contain Williams’s sentencing hearing transcript, the record does show that Greenleaf, pregnant at the time, was sent to the emergency room as a result of Williams’s attack and suffered an injury to her right eye and a serious laceration to her head requiring four staples to close the wound. Given Williams’s agreement at his guilty-plea hearing that he struck Green-leaf, that the assault was aggravated, and that it was domestic violence, coupled with the evidence of Greenleafs injuries, we cannot find that this issue has merit.

II. CONSTITUTIONAL VIOLATIONS

¶ 10. On appeal, Williams argues that his right to a speedy trial was violated, his sentence was cruel and unusual, and he received ineffective assistance of counsel.

¶ 11. First, in Williams’s sworn guilty-plea petition, which he signed, he specifically agreed to waive his right to a speedy and public trial by jury. Further, at Williams’s plea hearing, the circuit court explained that Williams had certain constitutional rights, including the right to a speedy trial, and that by pleading guilty, Williams would be waiving these rights. Williams affirmed that he understood the constitutional rights he was giving up by pleading guilty. “A [valid] guilty plea waives all non-jurisdictional rights or defects, ... including the right to a speedy trial.” Fulton v. State, 844 So.2d 1171, 1172 (¶ 4) (Miss.Ct.App.2003) (citing Anderson v. State, 577 So.2d 390, 391 (Miss.1991)). As such, this issue is without merit.

¶ 12. Next, for Williams to be successful in his claim of ineffective assistance of counsel, he must prove that: (1) “counsel’s performance was deficient,” and (2) “the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Williams argues that his attorney was ineffective in failing to pursue his motion to dismiss for a violation of his right to a speedy trial. The record contains Williams’s motion to dismiss for a violation of his right to a speedy trial that was filed on May 5, 2010. It states that Williams had been in custody for over 350 days and had not yet been indicted. The State filed its response to the motion explaining that it did not receive the lab results until April 8, 2010, and Williams was indicted by the grand jury the next time it convened on May 10, 2010. The State further claimed that Williams was not in any way prejudiced by the delay, and Williams made no claim that his ability to defend himself was impaired by the delay. This Court has stated that “the decision not to pursue a speedy trial violation is not ineffective assistance if a defendant waives his right to a speedy trial by pleading guilty.” Nick v. State, 62 So.3d 409, 412 (¶ 9) (Miss.Ct.App.2010) (citing Madden v. State, 991 So.2d 1231, 1237 (¶¶ 25-26) (Miss.Ct.App.2008)). Further, Williams provides no evidence to show his attorney’s alleged actions caused him to plead guilty, much less that he would have prevailed at trial. Therefore, his claim of ineffective assistance of counsel is without merit.

¶ 13. Lastly, Williams argues that he was subject to cruel and unusual punishment because he received a sentence of twenty years, and other criminals, having committed more serious crimes, have received shorter sentences. At Williams’s plea hearing, the circuit court explained that the maximum sentence for the crime of aggravated domestic violence was twenty years. Sentencing is left to the discretion of the circuit court, and it is not subject to appellate review so long as it is within the minimum and maximum sentences authorized by statute. Nichols v. State, 826 So.2d 1288, 1290 (¶ 10) (Miss.2002). In the present case, twenty years is the maximum sentence authorized; therefore, the circuit court was permitted to sentence Williams to twenty years. This issue is also without merit.

¶ 14. THE JUDGMENT OF THE LE-FLORE COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LEFLORE COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR AND JAMES, JJ., CONCUR. MAXWELL, J„ CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.


author: PITTMAN, Judge.

text:
    Gail QUINN and Patricia Hampton v. ALABAMA STATE BOARD OF EDUCATION et al.
    2101107.
    Court of Civil Appeals of Alabama.
    July 27, 2012.
    Rehearing Denied Jan. 4, 2013.

      Amardo W. Pitters, Montgomery; and Monica L. Arrington, Montgomery, for appellants.
    David R. Boyd and JoClaudia Moore of Balch & Bingham LLP, Montgomery; Larry E. Craven and Juliana T. Dean, Alabama State Department of Education, Montgomery; Aaron L. Dettling of Balch <& Bingham LLP, Birmingham; and Luther Strange, atty. gen., for appellees Alabama State Board of Education and Alabama Department of Revenue.
    Kenneth L. Thomas, Frederic A. Boll-ing, and Richele T. Harris of Thomas, Means, Gillis & Seay, P.C., Birmingham, for appellees Alabama State University, Board of Trustees of Alabama State University and certain employees/officials of Alabama State University.
   PITTMAN, Judge.

This appeal arises from a judgment entered by the Montgomery Circuit Court in an action filed in January 2011 by Gail Quinn and Patricia Hampton, former teacher-education students at Alabama State University (“ASU”), against two classes of defendants: (a) ASU, its trustees, and certain named and fictitiously named employees of ASU (collectively, “the ASU defendants”), and (b) the Alabama State Board of Education (“the Board”), the state education superintendent and deputy superintendent, and two employees of the Board (collectively, “the Board defendants”). The ASU defendants and the Board defendants filed separate motions to dismiss in which they asserted the doctrines of sovereign and state-agent immunity; the Board defendants further contended that various counts of the complaint did not state valid claims as a matter of law. After receiving briefs and arguments from the parties, the trial court entered an order on March 21, 2011, dismissing the Board defendants from the action, directing the entry of a final judgment as to the dismissal of the Board defendants (see Rule 54(b), Ala. R. Civ. P.), allowing the plaintiffs until April 4, 2011, to amend the complaint “[w]ith respect to the remaining [defendants” (ie., the ASU defendants), and setting a hearing on “the amended complaint” for April 14, 2011.

On April 4, 2011, the plaintiffs filed a postjudgment motion pursuant to Rule 59(e), Ala. R. Civ. P., attacking the judgment dismissing the Board defendants. On April 5, 2011, the plaintiffs filed an amended complaint restating their claims against the ASU defendants, substituting certain named employees for fictitiously named parties, and purporting to again state claims against the Board defendants despite the trial court’s having entered a final judgment in favor of the Board defendants and despite not having leave to amend the complaint as to those defendants. The Board defendants filed a response in opposition to the plaintiffs’ post-judgment motion in which, out of an abundance of caution, those defendants moved to strike the amended complaint; the plaintiffs filed a response stating that the Board defendants had been included in the amended complaint primarily in order to avoid a potential claim of appellate waiver of any error as to the March 21, 2011, judgment of dismissal. The ASU defendants also filed a motion to strike or dismiss, asserting that the amended complaint was untimely and that the claims against the ASU defendants were barred as a matter of law. A hearing was held on the plaintiffs’ and the defendants’ motions on May 81, 2011, at which, among other things, counsel for the plaintiffs contended that a certain document, which was not offered into evidence or exhibited to counsel for the defendants, constituted evidence supporting the plaintiffs’ claims against the Board defendants. The defendants moved to compel production of that document, which the plaintiffs initially opposed but subsequently assented to after being orally directed to produce the document by the trial court in a subsequent hearing.

The plaintiffs’ postjudgment motion of April 4, 2011, which was directed to the March 21, 2011, judgment of dismissal as to the Board defendants, was not expressly ruled upon by the trial court within 90 days of April 4, 2011, and no express consent of all parties to the continued pen-dency of that motion appears in the record; that motion was thus automatically denied by operation of law on July 5, 2011 (see Rule 59.1, Ala. R. Civ. P.). The trial court entered an order on July 13, 2011, that purported to again dismiss the claims against the Board defendants, dismissed the claims against the trustees of ASU, and dismissed all damages claims against any ASU defendant sued in his or her official capacity. At the request of the Board defendants, the trial court purported to again direct the entry of a final judgment as to the Board defendants on August 12, 2011.

On August 15, 2011, within 42 days of the denial of their postjudgment motion by operation of law, the plaintiffs filed a notice of appeal. That appeal was transferred to this court pursuant to Ala. Code 1975, § 12-2-7(6). The plaintiffs’ appellate briefs challenge not only the judgment of March 21, 2011, dismissing their claims against the Board defendants, but also the July 13, 2011, order that purported to again dismiss the claims against the Board defendants and that did dismiss several claims against the ASU defendants. However, because the trial court had directed the entry of a final judgment on March 21, 2011, as to the Board defendants, it lacked residual subject-matter jurisdiction thereafter to consider any amended complaint in the action as to those defendants. See Gulf Beach Hotel, Inc. v. Gulf State Park Auth., 58 So.3d 727, 731 (Ala.2010). Further, the trial court has yet to direct a final judgment as to its July 13, 2011, order as it applies to any of the ASU defendants, and a number of claims against ASU officers and employees remain pending in the trial court. We thus conclude that the July 13, 2011, order, to the extent that it is valid, is not properly before this court. See Rule 54(b), Ala. R. Civ. P. (an order adjudicating fewer than all the claims pending “is subject to revision at any time before the entry of judgment adjudicating all the claims”). Appellate consideration of the correctness of the trial court’s dismissal of various claims against certain of the ASU defendants must await the entry of a final judgment.

We thus have for review whether the trial court properly dismissed the claims against the Board defendants. “Under Rule 12(b)(6), Ala. R. Civ. P., a motion to dismiss is proper when it is clear that the plaintiff cannot prove any set of circumstances upon which relief can be granted.” Ex parte Haralson, 853 So.2d 928, 931 (Ala.2003). In making that determination, an appellate court is not to “ ‘ “consider whether the plaintiff[s] will ultimately prevail, but only whether [they] may possibly prevail.” ’ ” Id. (quoting Cook v. Lloyd Noland Found., Inc., 825 So.2d 83, 89 (Ala.2001), quoting in turn Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993)). Further, all doubts regarding the sufficiency of the complaint are to be construed in favor of the plaintiffs. Ex parte Haralson, 853 So.2d at 931.

In their January 2011 complaint — the only complaint before the trial court at the time that its final judgment of dismissal was entered — the plaintiffs alleged the following pertinent facts. Both Quinn and Hampton were graduate students at ASU’s College of Education who received masters-level degrees, but they experienced difficulties in obtaining particular certifications from the Board. Specifically, Quinn was denied certification as an educational administrator beginning in 2001 after having completed the appropriate ASU course of study because she was not shown as having received any grade in a particular ASU class, “EDU 520,” that she had taken; although ASU officials were able to locate the appropriate grade record in 2009 and added the grade to Quinn’s academic transcript, the Board again declined to certify Quinn and noted that, under current state regulations, Quinn would need to take and pass the Praxis II educational examination and would also need to take and pass three additional academic courses. Hampton, for her part, enrolled at ASU in 2007 and was given transfer credit by ASU for three courses she had completed that had been offered by the “University of Phoenix”; however, upon her completion of the ASU masters-degree program, her having filed for certification by the Board as a Glass A (ie., masters-level) teacher, and her having succeeded in passing the Praxis II examination, the Board declined to certify her, citing the three courses “transferred in” to ASU as a rationale, and Hampton was thereafter required to take (and did complete) three courses at ASU in order to obtain her certification thereafter.

The plaintiffs’ complaint contained seven counts, of which only four contained allegations directed to the Board defendants. The plaintiffs asserted (a) that the Board and its agents breached a legal duty “to oversee and ensure that the ASU defendants understood how to implement” state requirements regarding educator certification; (b) that the Board should be enjoined from violating its “present rules and duties” and should be directed to certify Quinn as an educational administrator based upon the criteria for certification at the time of her graduation in 2001; (c) that a writ of mandamus should issue to the Board defendants to compel issuance of a certification to Quinn; and (d) that the trial court should award monetary relief to the plaintiffs in the form of “due compensation for mental anguish, out of pocket expenses, past and future los[t] wages and retirement income, lost compensation due to loss of job[s], and suffering due to embarrassment, loss of prestige, status and morale,” as well as costs and attorney fees. Of the Board defendants, the members of the Board were sued only in their official capacities, while the state education superintendent, deputy superintendent, and the two employees of the Board named as defendants were sued in both their official and individual capacities.

To the extent that the complaint sought monetary relief against the Board defendants in their official capacities, the trial court’s judgment of dismissal is unquestionably correct under the doctrine of “state immunity.” Under Alabama law, “[a] suit against a State agency, or against State agents in their official capacities, is a suit against the State” that is barred by Section 14 of the Alabama Constitution of 1901, and “State agents enjoy absolute immunity from suit in their official capacities”; accordingly, “[a] trial court must dismiss an action against ... a State agent acting in an official capacity at the earliest opportunity.” Burgoon v. Alabama State Dep’t of Human Res., 835 So.2d 131, 133 (Ala.2002). In contrast, “state-agent immunity” protects an agent of the state from civil liability in his or her individual capacity when the conduct made the basis of the claim against the agent is based upon the agent’s “discharging duties imposed on a department or agency by statute, rule, or regulation, insofar as the statute, rule, or regulation prescribes the manner for performing the duties and the State agent performs the duties in that manner.” Ex parte Cranman, 792 So.2d 392, 405 (Ala.2000). Thus, the issue of individual-capacity damages liability presented in this appeal devolves to the question whether the Board defendants acted in furtherance of state statutes and regulations.

The Board defendants correctly note in their appellate brief that the Board is vested with the authority under Alabama law to “prescribe rules and regulations governing the training and the certification of teachers in the public schools of the state, and for the acceptance of the diplomas of the colleges and universities of Alabama” (Ala.Code 1975, § 16-3-16(a)); indeed, the legislature has gone so far as to state that “[a]U matters relating to the issuance, extension and renewal of [teaching] certificates based upon credentials, including transcripts of applicants’ records submitted by institutions of higher learning in Alabama approved for the training of teachers, ... [are] subject to the rules and regulations of the State Board of Education.” Ala.Code 1975, § 16-23-2 (emphasis added). The Board, exercising that authority, has adopted regulations that— with particular reference to Hampton’s allegations — provide that “[transferred courses and/or credits used to meet approved program requirements in professional studies, instructional support, or other approved program requirements ... must have been completed at a regionally accredited institution that prepares teachers on the same degree level of certification.” Ala. Admin. Code (Bd. of Educ.), r. 290-3-3-.02(2)(b) (effective September 7, 2009); accord Ala. Admin. Code (Bd. of Educ.), r. 290-3-3-.02(13) (repealed in 2009). The Board has also promulgated regulations that — with particular reference to Quinn’s allegations — provide that an applicant for initial certification in instructional leadership must (a) demonstrate “[satisfactory completion of a State-approved program with a minimum GPA of 3.0 in all courses in the Alabama State Board of Education approved program in instructional leadership” (emphasis added), and (b) “must meet the Praxis II requirements of the Alabama Prospective Teacher Testing Program” after 2007. Ala. Admin. Code (Bd. of Educ.), r. 290-3-3-.49(3)(b) and 290-3-3-.49(4).

The complaint alleges that when Hampton made contact with the Board’s certification specialist in May 2009, the specialist informed Hampton that her advisor and the certifying officer at ASU had “signed off on” transferred classes that were not approved by the Board. Taken together, however, § 16-23-2 and the pertinent Board regulation make clear the propriety of the Board’s conduct in barring the use of nonequivalent transfer credits for certification purposes notwithstanding the prerogative of ASU, acting separately, to accept them for degree-granting purposes. A similar analysis applies to the individual-capacity claims as to Quinn, who alleges that she was denied certification between 2001 and 2007, before the Praxis II test requirement went into effect, because she had no reported grade in one of her courses taken at ASU; however, because the Board had validly adopted a regulation requiring an applicant to demonstrate a minimum GPA of 3.0 in all courses taken in pursuit of an instructional-leadership master’s degree, and adopted a further requirement that such an applicant pass the appropriate Praxis II exam that went into effect before Quinn could cause a report of her missing grade to be transmitted to the Board by ASU officials, the complaint alleges nothing more than that the Board defendants “discharg[ed] duties imposed on [them] by statute, rule, or regulation.” Ex parte Cranman, 792 So.2d at 405. We thus cannot conclude, as the plaintiffs would have us conclude, that the Board defendants are not entitled to state-agent immunity.

Our conclusions in this regard also foreclose the remaining nonmonetary forms of relief sought by the plaintiffs as to the Board defendants. To the extent that the plaintiffs have requested that the Board should be enjoined from violating its “present rules and duties” and should be made, via injunction or writ of mandamus, to certify Quinn as an educational administrator based upon the criteria for certification at the time of her graduation in 2001, the record does not reflect that, under the governing law, the Board has taken any unlawful action or that it has any duty to issue a certification to Quinn that would give rise to a right to such a certification. See State Dep’t of Indus. Relations v. Clegg Mfg. Co., 348 So.2d 249, 251-52 (Ala.Civ.App.1976) (injunction will not issue to restrain the legal actions of public officer); Ex parte Privett, 887 So.2d 854, 856 (Ala.2004) (denying petition for writ of mandamus because of absence of “clear legal right to the order sought”). Further, because the plaintiffs have not shown that the Board has any authority concerning the internal governance of ASU — an institution as to which the legislature has expressly divested the Board’s jurisdiction and that has been placed under the sole control of its board of trustees except as otherwise provided by law, see Ala.Code 1975, § 16-50-24 — the plaintiffs are not entitled to any relief, as a matter of Alabama law, on their claim that the Board has somehow failed to carry out a hypothetical duty to undertake oversight of educator-certification masters-degree programs at ASU.

The plaintiffs’ remaining contention is that the trial court erred in compelling them, during postjudgment proceedings, to produce, over their objection, a particular document that might have had some bearing on Quinn’s claims. As we have noted, the trial court did not expressly rule upon the plaintiffs’ postjudgment motion, and the record does not indicate that the trial court considered the document in entering its March 21, 2011, judgment of dismissal or in electing to allow the postjudgment motion to be denied by operation of law. Further, as we have noted herein, the trial court’s March 21, 2011, judgment of dismissal for failure to state a claim was correctly entered. Therefore, we conclude that if the trial court indeed erred in compelling production of that document, any such error necessarily did not “probably injuriously affect[ ] substantial rights of the” plaintiffs so as to permit reversal on that ground. See Rule 45, Ala. RApp. P.

AFFIRMED.

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

      . Rule 78, Ala. R. Civ. P., provides that, "[u]n-less the court orders otherwise, an order granting a motion to dismiss shall be deemed to permit an automatic right of amendment of the pleading to which the motion is directed within ten (10) days from service of the order." Because the plaintiffs' amended complaint was filed on April 5, 2011, 11 working days after the March 21, 2011, judgment of dismissal as to the Board defendants, it was untimely under that rule, and we need not decide whether the trial court’s grant of leave to the plaintiffs to amend their complaint only as to the ASU defendants represents an example of a trial court's "ordering] otherwise” so as to abrogate any automatic right of amendment inuring to a pleader under Rule 78.

      . Rule 59.1 provides that a postjudgment motion that is not ruled on by the court within 90 days is deemed denied at the expiration of the 90-day period. The 90th day following the plaintiffs' filing of their postjudgment motion on April 4, 2011, was Sunday, July 3, 2011, and Monday, July 4, 2011, was a state holiday. Therefore, the plaintiffs’ post-judgment motion was denied on Tuesday, July 5, 2011. See First Alabama Bank v. McGowan, 758 So.2d 1116 (Ala.Civ.App.2000), and Richburg v. Cromwell, 428 So.2d 621 (Ala.1983).

      . The Board defendants have labeled those courses as "continuing-education" courses, although the record, apart from the Board defendants’ own contentions in trial-court filings, does not substantiate that characterization.

      . Although Cranman was a plurality opinion, its rationale was subsequently applied by the majority in Ex parte Butts, 775 So.2d 173 (Ala.2000).


author: PER CURIAM. THOMPSON, Presiding Judge,

text:
    K.T.D. v. K.W.P. K.W.P. v. K.T.D.
    2110531.
    Court of Civil Appeals of Alabama.
    Nov. 9, 2012.
    Rehearing Denied Dec. 21, 2012.

      William F. Pfeifer, Jr., Birmingham, for appellant/cross-appellee K.T.D.
    Trudie Anne Phillips, Anniston, for ap-pellee/cross-appellant K.W.P.
   PER CURIAM.

K.T.D. (“the mother”) appeals from a judgment of the Cleburne Circuit Court (“the trial court”) that modified her custodial rights to K.P. (“the child”). K.W.P. (“the father”) cross-appeals from the same judgment insofar as the trial court failed to modify his child-support obligation.

Procedural History

The child was born in March 2007 when the mother was 16 years old and the father was 21 years old. The record indicates that the trial court entered a judgment on or about December 4, 2007, that adjudicated the father as the father of the child, awarded sole custody of the child to the mother, awarded the father “standard” visitation with the child after a “phase-in” period, and ordered the father to pay $548 a month in child support to the mother. Neither party was ordered to provide health insurance for the child, but the parties were required to equally share the cost of “noncovered” medical expenses for the child. The record indicates that the December 2007 judgment stated that the parties “shall communicate regarding the ... child through the [fatherj’s mother and the [motherj’s mother.” The father’s mother (“the paternal grandmother”) and the mother and her mother (“the maternal grandmother”) were the only individuals authorized to exchange custody of the child, which was to take place at the Heflin Police Department. The trial court also ordered the child’s surname to be changed from the mother’s surname at the time, T., to the father’s surname, P.

On July 26, 2010, the mother filed a petition to modify the December 2007 judgment, and she sought: (1) specific and reasonable telephone visitation with the child while the father was exercising visitation, (2) an order requiring the father to provide her with advance written notice of his intention to travel with the child for distances greater than 60 miles, (3) an order requiring the father to notify her if the child stays anywhere other than the father’s home overnight, (4) an order requiring the father to notify her if the child requires medical treatment during the father’s visitation periods, (5) an order requiring the father to notify her if someone else is caring for the child during his visitation periods, (6) the “right of first refusal” if the father requires child care for more than 3 hours during his visitation periods, (7) removal of the requirement in the December 2007 judgment that the parties communicate through the maternal grandmother and the paternal grandmother, and (8) an order modifying the father’s visitation rights with the child.

The father subsequently filed an answer and a counterclaim to modify the December 2007 judgment. The father sought sole custody of the child or, in the alternative, a modification of his visitation rights so that he had the child “50% of the time.” The father also sought an order requiring him to pay health insurance for the child and a corresponding modification of his child-support obligation. Finally, the father sought to hold the mother in contempt for her failure to change the child’s surname to the father’s surname or to use the father’s surname.

The trial court conducted an ore tenus hearing over two days — January 30, 2012, and February 2, 2012. On February 7, 2012, the trial court entered a judgment modifying the December 2007 judgment by awarding the parties joint legal and joint physical custody of the child. The trial court found that there had been a material change in circumstances that warranted a modification of custody, that the change in custody would materially promote the child’s best interest, and that the benefits of the change in custody would more than offset the disruptive effects caused by the change. Specifically, the trial court found that the parties had been unable to communicate with one another, that the parties cannot co-parent the child without communicating with one another about the child, that the mother had “used very poor judgment in her behavior towards the [father] and his family,” that the mother’s behavior had been detrimental to the child, and that the mother had attempted to interfere with the relationship between the child and the father.

The father was awarded physical custody of the child during weeks containing the first, third, and fifth weekends of each month from Wednesday at 6:00 p.m. until Monday at 9:00 a.m. During the weeks that the father did not have a weekend custodial period, he was awarded custody of the child from Tuesday at 6:00 p.m. until Thursday at 9:00 a.m. The father was awarded four weeks of physical custody in the summer, one week during Christmas, and other specific holiday visitation. The trial court, in its lengthy judgment, set forth numerous provisions in an attempt to facilitate communication between the mother and the father, including an order that the mother, the father, and the child attend family counseling. The trial court held the mother in contempt for willfully failing to use the child’s surname as ordered in the December 2007 judgment. The judgment did not modify the father’s child-support obligation.

On February 20, 2012, the mother filed a timely postjudgment motion pursuant to Rule 59(e), Ala. R. Civ. P., arguing that the father had failed to meet the burden of modifying physical custody of the child pursuant to Ex parte McLendon, 455 So.2d 863 (Ala.1984). On February 21, 2012, the father filed a timely post-judgment motion requesting, among other things, that the trial court order him to be responsible for the child’s health-insurance costs and to modify his child-support obligation in light of the new custodial arrangement and the evidence that he was paying the cost of the child’s health insurance.

On March 5, 2012, the trial court entered an order amending its judgment to provide the father with custody of the child on Father’s Day and to remove the requirement that the maternal grandmother and the paternal grandmother “be involved in arranging physical custody or placement of the child with the parties.” The trial court denied all other postjudgment requests for relief. The mother timely appealed, and the father timely filed a cross-appeal.

Issues

In her appeal, the mother argues that the trial court erred by concluding that the father had met his burden of proving that there had been a material change in circumstances sufficient to warrant a modification of custody pursuant to Ex parte McLendon, supra. In his cross-appeal, the father argues that the trial court erred by failing to modify his child-support obligation.

Facts

At the time of trial, the mother was 21 years old, the father was approximately 25 years old, and the child was 4 years old. The record indicates that the mother and the father did not speak to each other, or even have each other’s telephone numbers, from before the child was born in 2007 until early summer 2010. After the child reached her third birthday in March 2010, the father was able to exercise a full week of visitation with the child for the first time in the summer of 2010, so the mother began contacting the father in order to speak to the child while she was visiting the father. Both parties agreed that the child did not like to talk on the telephone before this point because of her age.

The record indicates that there is a history of animosity between the father and the mother and her family. In 2007, the father was convicted of third-degree assault and harassing communications. The circumstances of those convictions are not clear in the record, but the record indicates that the mother’s father was involved. The record indicates that the father was also convicted of menacing in 2008, in a matter unrelated to the mother or her family, when he “made [a] gun visible” during a traffic dispute with another driver on a busy road. The father admitted that he had spent 40 days in jail for that charge. The father admitted that he had had an anger problem and that he had begun seeing a psychiatrist. He testified that his psychiatrist had prescribed two medications to stabilize his mood and that he sees his psychiatrist approximately every three months.

The lengthy record on appeal reveals an almost complete inability of the mother and the father to effectively communicate with each other about the child. The mother admitted that the father had tried to communicate with her about his visitation with the child by sending messages with the paternal grandmother, by sending the mother a certified letter, and by calling the mother. The mother admitted that she had received the father’s communications and that she had not responded to any of them because, she said, visitation matters did not concern the child. The mother complained that the father took the child on vacation without telling her, that he took the child to the doctor for medical treatment without informing her until after it was completed, and that the father did not answer her telephone calls when he was exercising his visitation rights with the child. The father admitted that he had not called the mother before he took the child to the emergency room for stitches on one occasion but that he had called the mother on his way home from the hospital. The father disputed the mother’s contention that he did not answer her telephone calls during the child’s visitation, and he presented telephone records to support his testimony. The mother admitted that she had never informed the father of any medical issues concerning the child and that she had never informed the father that she was taking the child on vacation. The father did not inform the mother when he got married in October 2009, and the mother did not inform the father when she got married in December 2010.

The father testified that he wanted custody of the child because the mother was doing everything that she could to alienate the child from the father and his family. The father testified that the mother still used her maiden name as the child’s surname instead of using the father’s surname as ordered by the trial court in the December 2007 judgment. The father presented evidence, namely, the child’s medical records and prescription records, indicating that the child’s surname was the same as the mother’s maiden name. The father stated that this had caused a great deal of confusion and stress for the child, who, he said, got visibly tense whenever a stranger asked her what her name was.

In addition, the father testified that the mother was unwilling to communicate with him about the child and that she was inflexible regarding his court-ordered visitation. For example, the father asked if he could switch his visitation weekend and have one extra day of visitation so he could take the child to Tennessee to visit his family for Christmas. After attempting to contact the mother several times without receiving a response, the father eventually received a letter from the mother’s attorney that stated that the mother was willing to allow the father to have custody of the child during the period he requested in return for him giving up his week of Christmas visitation with the child. The father chose not to give up his week of Christmas visitation with the child, so the child was not permitted to go on the trip. According to the father, the child was very upset that she could not go to Tennessee. The mother had also refused to allow the father to have a few “unscheduled” hours with the child so that the child’s paternal great-grandmother, who was coming to town for a funeral, could meet the child for the first time.

The father stated that the mother had told him that, because she had sole custody of the child, the father could not take the child more than 60 miles away from his home, that the father could not take the child to the doctor, and that the father had no rights to the child except to visit the child. He further testified that the mother had, on one occasion, required the father to take a picture of the child’s dinner to prove that she was eating spaghetti and that, on another occasion, the mother had told the child that the dinner of macaroni and cheese that the father had fixed for the child was not sufficient. The father testified that the mother’s comments and actions sent a message to the child that the father could not adequately care for the child.

According to the father, the mother arbitrarily changed his half day of visitation with the child on his birthday, which was initially scheduled from 12:00 p.m. to 6:00 p.m., to 9:00 a.m. to 3:00 p.m., which the father could not exercise because he was at work during those hours. The father also testified that the mother expects to talk to the child every day when the child is with the father but that she does not allow the father to talk to the child when the child is with the mother. The mother testified that the father never called her to talk to the child during her custodial periods, but she admitted that the December 2007 judgment required all communication about the child to go through the paternal grandmother and the maternal grandmother.

The paternal grandmother testified at length about problems she had had with the mother and the maternal grandmother during visitation exchanges. According to the paternal grandmother, the mother did not answer the father’s telephone calls, she did not sign for certified mail sent to her by the father, and she did not acknowledge the receipt of regular mail sent by the father, so the father’s only method of communicating with the mother was through the paternal grandmother at visitation exchanges. The paternal grandmother stated, however, that she thought that communicating at that time was inappropriate because it meant discussing issues in front of the child. According to the paternal grandmother, the mother had refused to accept the birth certificate that the father had obtained that changed the child’s surname to the father’s surname, that the mother had refused to accept written communication from the father at visitation exchanges, and that the mother refused to discuss altering the father’s visitation schedule.

On May 28, 2010, the mother refused to allow the paternal grandmother to take custody of the child because the paternal grandmother had the child’s child-restraint seat on one side of the back seat of her vehicle instead of in the middle of the back seat. The paternal grandmother explained that she had to put the child’s child-restraint seat on the side of her back seat because she had a second child-restraint seat on the other side of the back seat for the father’s infant son and that she had had both child-restraint seats installed by the fire department. When the mother told the paternal grandmother that she could not take the child, the paternal grandmother offered to move the child’s child-restraint seat to the middle of her back seat. According to the paternal grandmother, the mother stated that the paternal grandmother did not move the child-restraint seat fast enough so the mother “snatched” the child, put the child in the back seat of the mother’s vehicle without buckling the child in her seat, and left. The paternal grandmother went inside the police station to file a report, and the mother and the maternal grandmother eventually returned. Officer John Daniel testified that the mother and the maternal grandmother were “throwing a fit” in front of the child about the position of the child-restraint seat and that he had called the Department of Human Resources at the request of maternal grandmother because the parties could not resolve the issue on their own. Jennifer Rios, from the Department of Human Resources, came to the location of the visitation exchange. Rios stated that the mother was yelling and behaving irrationally and that she was concerned for the child because the mother would not calm down. However, she testified that she identified no safety risks to the child and that she left the scene without initiating an investigation or doing any follow-up investigation. Rios and Daniel both testified that the mother had overreacted to the situation. The record indicates that an officer eventually moved the child’s child-restraint seat to the center of the paternal grandmother’s back seat, and the paternal grandmother left with the child approximately two hours after she had arrived to pick up the child.

On August 22, 2010, the mother became upset at a visitation exchange because the paternal grandmother did not return the child’s “sippy cup.” The paternal grandmother explained that the sippy cup had been left on her sister’s boat on a lake approximately 45 minutes away and that, when the boat was returned later that night, she would bring the sippy cup to the mother. The mother demanded that the paternal grandmother immediately drive back to the lake to retrieve the sippy cup, and when the paternal grandmother told the mother that she would return the sip-py cup later that evening, the mother stated that she was going to file a police report and say that the sippy cup had been stolen. All of this was done in the presence of the child. When the boat was returned, the paternal grandmother returned the sippy cup to the mother around 8:30 p.m. The record indicates that the paternal grandmother wanted to make a record of the fact that she had returned the sippy cup to the mother so she went inside the police department and filed a “report.”

In December 2010, the paternal grandmother picked up the child for visitation and her vehicle was packed so that the father could take the child on a trip to Tennessee to see his family. The mother stated that the child could not go because she did not know about the trip and she was upset because the child’s child-restraint seat was not in the center of the back seat of the vehicle. The paternal grandmother testified that she and the father had tried to contact the mother about the trip but that the mother had refused to communicate with them. The mother began to put the child back in her vehicle, and the child began crying and trying to tell the mother that the paternal grandmother would move the child-restraint seat. The paternal grandmother stated that, at that time, the mother had allowed the child to ride in a “booster” seat on one side of the back seat of her vehicle but she would not allow the child to ride in a regular child-restraint seat on one side of the back seat of the paternal grandmother’s vehicle. Also in December 2010, the maternal grandmother threatened to not allow the child to visit the father because the paternal grandmother had the child’s half brother, who was seven months old at the time, in the vehicle with her.

The paternal grandmother stated that the mother had stopped speaking to her at visitation exchanges after court dates were set on the parties’ pending petitions. The paternal grandmother testified that, when she asks the mother a question, the mother ignores her, but the child will tell the mother to respond or the child will prompt the mother to respond. The paternal grandmother stated that the child had told her that the mother had told her that she did not have to obey the paternal grandmother.

The mother admitted that she had overreacted about the missing sippy cup and the position of the child’s child-restraint seat, but she stated that she had been thinking only of the child’s best interests. She also admitted that she allowed the child to call her current husband “daddy.” The mother testified that she did not mind if the child called the father’s current wife “mommy.” She admitted that she had continued to use her maiden name for the child’s surname even after the child’s birth certificate had been changed.

During the first day of the ore tenus hearing, the mother withdrew her request to decrease the father’s visitation with the child. The parties also stipulated that the maternal grandmother and the paternal grandmother would no longer act as intermediaries for the parties, that the father would maintain health-insurance coverage for the child, that each party would have the “right of first refusal” to care for the child during the other parties’ custodial periods, that each party would have reasonable telephone visitation with the child, and that each party would notify the other of the child’s medical issues.

The father admitted that the child was happy and healthy, that she appeared well cared for, and that the child probably considered the mother’s house to be her “home.” He accepted responsibility for some of the communication problems between himself and the mother, and he testified that the communication problems might be resolved by some of the joint stipulations that had been made by the parties.

Although she testified that she was willing to make some changes in order to communicate better with the father, the mother admitted that she had discussed the possibility of limiting the father’s visitation time with the child on the last day of the ore tenus hearing. She testified that she did not think that the father should get additional time with the child but that, if the father was awarded custody, she should get more time with the child then what the father had. She stated that she had encouraged the child’s relationship with the father by not talking negatively about the father, but she admitted that she did not talk about the father at all in front on the child. During her testimony, the mother could not think of another way to encourage the child’s relationship with the father. The mother stated that all the hostility and the problems she had with the father and his family were not having a very good affect on the child.

The record indicated that the child had been on Medicaid until approximately May 2010 when the father added the child to his family health-insurance coverage through the father’s wife’s employer. The father testified that he had obtained health insurance for the child when he began exercising longer periods of custody with the child in case something happened to the child while she was visiting him and that he did not know that his actions would operate to make the child ineligible for Medicaid. As noted above, the parties stipulated that the father would maintain health insurance for the child. The father’s cost of medical and dental insurance for the child was $465.26 per month, and the father testified that that amount was taken out of his wife’s paycheck every month.

Standard, of Review
“When evidence in a child custody case has been presented ore tenus to the trial court, that court’s findings of fact based on that evidence are presumed to be correct. The trial court is in the best position to make a custody determination — it hears the evidence and observes the witnesses. Appellate courts do not sit in judgment of disputed evidence that was presented ore tenus before the trial court in a custody hearing. See Ex parte Perkins, 646 So.2d 46, 47 (Ala.1994), wherein this Court, quoting Phillips v. Phillips, 622 So.2d 410, 412 (Ala.Civ.App.1993), set out the well-established rule:
“ ‘ “Our standard of review is very limited in cases where the evidence is presented ore tenus. A custody determination of the trial court entered upon oral testimony is accorded a presumption of correctness on appeal, Payne v. Payne, 550 So.2d 440 (Ala.Civ.App.1989), and Vail v. Vail, 532 So.2d 639 (Ala.Civ.App.1988), and we will not reverse unless the evidence so fails to support the determination that it is plainly and palpably wrong, or unless an abuse of the trial court’s discretion is shown. To substitute our judgment for that of the trial court would be to reweigh the evidence. This Alabama law does not allow. Gamble v. Gamble, 562 So.2d 1343 (Ala.Civ.App.1990); Flowers v. Flowers, 479 So.2d 1257 (Ala.Civ.App.1985).” ’ ”

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

Discussion

I. The Mother’s Appeal

In support of its judgment modifying custody of the child, the trial court specifically found (1) that the parties were unable to communicate, (2) that the mother had used poor judgment in her behavior toward the father and his family, (3) that the mother’s behavior had been detrimental to the child, and (4) that the mother had attempted to interfere with the relationship between the child and the father. On appeal, the mother contends that those findings are not supported by the evidence and that, even if they are, they are insufficient to support a finding of a material change in circumstances sufficient to meet the burden set forth in Ex parte McLendon, supra.

Regarding the McLendon burden, this court has held:

“The burden set out in McLendon requires the parent seeking a custody change to demonstrate [ (1) ] that a material change in circumstances has occurred since the previous judgment, [ (2) ] that the child’s best interests will be materially promoted by a change of custody, and [ (3) ] that the benefits of the change will more than offset the inherently disruptive effect resulting from the change in custody. Ex parte McLendon, 455 So.2d at 866.”

Dean v. Dean, 998 So.2d 1060, 1065 (Ala.Civ.App.2008). Regarding the first prong of the McLendon burden set forth above, the “material change” must be one “ ‘affecting the child’s welfare since the most recent decree ....’” McLendon, 455 So.2d at 865 (quoting Wood v. Wood, 333 So.2d 826, 828 (Ala.Civ.App.1976)). Our supreme court has rejected the notion that a party seeking to modify a prior custody judgment must prove that there is an “overwhelming necessity” for the change in custody. See Ex parte Cleghorn, 993 So.2d 462, 468-69 (Ala.2008).

We find sufficient evidence in the record to support the trial court’s conclusion that the parties were unable to communicate, that the mother exercised poor judgment in her behavior toward the father and his family, that the mother’s behavior had a detrimental impact on the child, and that the mother had attempted to interfere with the child’s relationship with the father. The record indicates that the mother behaved in an immature and unreasonable manner in various interactions with the father and the paternal grandmother, who was designated as the sole individual from the father’s side of the family who could communicate with the mother about the child. The record demonstrates that the four-year-old child had attempted to reason with the mother during her displays of unreasonable behavior and that most of the mother’s displays of unreasonable behavior, or her attempts to keep the child from spending time with the father, occurred in front of the child. The mother admitted that the hostility between herself and the father and his family was not having a good affect on the child and that the only thing that she had done to foster a relationship between the father and the child was to not say anything about the father at all. We cannot conclude that the trial court was plainly or palpably wrong by concluding that the mother’s behavior had had a detrimental impact on the child.

Finding evidence to support the trial court’s factual determinations, we must consider whether those findings were sufficient to support the trial court’s conclusion that there had been a material change in circumstances affecting the child’s welfare since the entry of the December 2007 judgment. We conclude that there was sufficient evidence to support such a conclusion. Although we do not believe that the evidence presented rises to a level of supporting a finding of parental alienation, see, e.g., C.J.L. v. M.W.B., 879 So.2d 1169 (Ala.Civ.App.2003) (affirming a judgment modifying custody of the children in favor of the father after the trial court concluded that the mother had, among other things, withheld visitation from the father in an attempt to completely alienate the children from the father), this court has recognized that a custodial parent’s attempts to interfere with a noncustodial parent’s relationship with the child should be considered in determining whether custody of the child should be modified. See, e.g., Sankey v. Sankey, 961 So.2d 896 (Ala.Civ.App.2007) (affirming a judgment modifying custody from the father to the mother when the evidence indicated that the father had a close relationship with the children, the father had encouraged and supported the mother’s relationship with the children, the mother had consistently attempted to harm the father’s relationship with the children, and the quantity and quality of the children’s contact with both parents would be better served by awarding custody of the children to the father); and Adams v. Adams, 21 So.3d 1247, 1254 (Ala.Civ.App.2009) (affirming a judgment modifying custody of the child from the mother to the father when the evidence indicated that the mother had exposed the children to foul language and inappropriate conduct and “had involved the children in her efforts to fight with or to punish the father”).

The mother contends that she did not interfere with the child’s relationship with the father because she did not withhold court-ordered visitation from the father and because the father testified that he had a good relationship with the child. We agree with the mother’s contention that custody should not be modified because she withheld supplemental visitation from the father, see Cochran v. Cochran, 5 So.3d 1220, 1228 (Ala.2008), and that visi tation disputes alone will not support a judgment modifying custody, see id. (citing Foster v. Carden, 515 So.2d 1258, 1260 (Ala.Civ.App.1987)). However, the facts of this case present a more serious problem than a visitation dispute. The trial court could have concluded that the mother had engaged in behavior designed to frustrate and thwart the father’s relationship with the child. The trial court was presented with evidence indicating that even after she had made certain stipulations that the father thought might improve circumstances between himself and the mother, the mother had still inquired of her attorney on the last day of the ore tenus hearing about the possibility of limiting the father’s time with the child. The mother’s testimony clearly indicated that she believed that she did not have to co-parent the child with the father because she had sole custody, and, despite the joint stipulations made, there is no indication that the mother had swayed from her position that the father is simply a visitor of the child with no additional rights. Certainly, the mother’s status as the child’s sole legal and physical custodian gave her superior custodial rights to the child, see Ala.Code 1975, § 30-3-151(4) and (5) (defining “sole legal custody” and “sole physical custody”), but the mother’s status as the child’s sole custodian did not give her the ability to use those rights to the detriment of the child.

Accordingly, we cannot conclude that the trial court erred by concluding that there had been a material change in circumstances that affected the welfare of the child since the entry of the December 2007 judgment. Although the mother has cited caselaw in her brief on appeal that generally sets forth the burden the father was required to meet pursuant to McLen-don, the mother does not argue on appeal that there was insufficient evidence to support the trial court’s conclusion that the change in custody would materially promote the child’s best interests or that there was insufficient evidence to support the trial court’s conclusion that the benefits of the change would more than offset the inherently disruptive effects caused by the change in custody. See McLendon, supra. Therefore, the mother has waived those arguments on appeal. See Gary v. Crouch, 923 So.2d 1130, 1136 (Ala.Civ.App.2005) (citing Boshell v. Keith, 418 So.2d 89, 92-93 (Ala.1982)) (“[T]his court is confined in its review to addressing the arguments raised by the parties in their briefs on appeal; arguments not raised by the parties are waived.”). Accordingly, we affirm the trial court’s judgment modifying custody of the child.

II. The Father’s Cross-Appeal

On appeal, the father contends that the trial court erred by failing to modify his child-support obligation. He argues that the trial court should have (1) deviated from the child-support guidelines in light of its custody-modification judgment, which awarded him joint physical custody of the child, and (2) that the trial court should have recalculated his child-support obligation to include the cost of the child’s health insurance.

Initially, we note that Rule 32, Ala. R. Jud. Admin., provides that an award of “[sjhared physical custody or visitation rights providing for periods of physical custody or care of children by the obligor parent substantially in excess of those customarily approved or ordered by the court” may be a reason for deviating from application of the child-support guidelines. Rule 32(A)(1)(a), Ala. R. Jud. Admin. However, considering the absence of authority cited by the father in his brief on appeal in support of this argument, we will not address it further. See Rule 28(a)(10), Ala. R.App. P. (requiring an appellant to cite authority to support arguments presented on appeal); and State Farm Mut. Auto. Ins. Co. v. Motley, 909 So.2d 806, 822 (Ala.2005) (citing Ex parte Showers, 812 So.2d 277, 281 (Ala.2001)) (“[I]t is well settled that a failure to comply with Rule 28(a)(10) requiring citation of authority in support of the arguments presented provides [an appellate cjourt with a basis for disregarding those arguments.”).

Regarding his second argument, that the trial court erred by failing to include the actual cost of the child’s health-insurance coverage in determining his child-support obligation, the father argues that the trial court erred by denying this request for relief in his postjudgment motion without first conducting a hearing. The record indicates that the father requested a hearing on his postjudgment motion, and there is no indication in the record that the trial court conducted a hearing before it denied the father’s requests for an amended judgment modifying his child-support obligation.

“ ‘Rule 59(g), Ala. R. Civ. P., provides that post-judgment motions “shall not be ruled upon until the parties have had an opportunity to be heard thereon.” We have said that if a hearing is requested, it must be granted. Staarup v. Staarup, 537 So.2d 56 (Ala.Civ.App.1988). On appeal, however, if an appellate court determines that there is no probable merit to the motion, it may affirm based on the harmless error rule. Walls v. Bank of Prattville, 554 So.2d 381 (Ala.1989).’ ”

Carleton v. Carleton, 84 So.3d 84, 86 (Ala.Civ.App.2011) (quoting Hill v. Hill, 681 So.2d 617, 619 (Ala.Civ.App.1996)). Accordingly, we must consider whether there was probable merit to the arguments presented in the father’s postjudgment motion, which were: (1) that the trial court should have ordered him to maintain health insurance for the benefit of the child and (2) that the trial court should have recalculated his child-support obligation to give him credit for paying the cost of the child’s health-insurance coverage.

Rule 32(B)(7)(a), Ala. R. Jud. Admin., provides, in part:

“Medical support in the form of health-insurance coverage and/or cash medical support shall be ordered provided that health-insurance coverage is available to either parent at a reasonable cost and/or cash medical support is considered reasonable in cost.”

(Emphasis added.)

The determination whether, given the parties’ incomes and the support to be paid to the child, health-insurance coverage is available at a reasonable cost is a factual determination to be made by the trial court; such a determination is within the trial court’s discretion and will not be reversed absent an abuse of discretion. Jones v. Jones, 101 So.3d 798, 800 (Ala.Civ.App.2012); Egres v. Egres, 85 So.3d 1026, 1030 (Ala.Civ.App.2011). Although neither party contended below that the cost of the health insurance obtained by the father was not reasonable and although there is no indication in the record that the trial court concluded that the cost of the health insurance provided by the father was not reasonable, a judgment that is correct for any reason may be affirmed on appeal, even if the trial court does not expressly rely on that reason in reaching its judgment or if it cites an incorrect reason. Boykin v. Magnolia Bay, Inc., 570 So.2d 639, 642 (Ala.1990).

The child-support guidelines define “reasonable cost” for health insurance in the calculation of child support to include:

“[T]he cost of private health insurance is considered reasonable in cost if the cost to the parent responsible for providing medical support does not exceed 10% of his of her gross income. For purposes of applying the 10% standard, the cost is the cost of adding the child or children to existing coverage or the difference between self-only and family coverage, whichever is greater.”

Rule 32(B)(7)(c)(3), Ala. R. Jud. Admin.

In this case, the father, who had the burden of proving that his child-support obligation was due to be modified, see Parker v. Parker, 87 So.3d 581, 583 (Ala.Civ.App.2012), failed to present any evi dence regarding the difference in cost of “adding the child or children to existing coverage or the difference between self-only and family coverage.” The record indicates that the father sought to reduce his $548 monthly child-support obligation by a proportionate share of health-insurance premiums that cost his wife $465.86 per month. The evidence demonstrates that the father’s wife’s payment for health-insurance coverage is equivalent to 17% of the father’s gross income. Accordingly, we conclude that the trial court could have determined that, given the parties’ incomes and the level of support for the child, the cost of providing private health insurance in this case was not reasonable under the Rule 32 child-support guidelines. The cost of providing that insurance would exceed the presumed “reasonable cost” to warrant inclusion in the calculation of child support. Further, the modification the father proposed would reduce the father’s child support by $316, more than half the amount he was ordered to pay in the original child-support judgment. Given those facts, we conclude that the evidence supports the trial court’s denial of the father’s claim seeking to modify child support, and, therefore, we cannot conclude that there was probable merit to the father’s post-judgment motion on that issue. Accordingly, the trial court’s failure to conduct a hearing on the father’s postjudgment motion was harmless error.

Conclusion

The mother’s appeal from the trial court’s judgment modifying custody of the child is affirmed. The father’s cross-appeal of the trial court’s judgment is also affirmed.

APPEAL — AFFIRMED.

CROSS-APPEAL — AFFIRMED.

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

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

THOMPSON, P.J., concurs in the result as to the cross-appeal and dissents as to the appeal, with writing.

THOMPSON, Presiding Judge,

concurring in the result as to the cross-appeal and dissenting as to the appeal.

As to the mother’s appeal, I must respectfully dissent from that part of the main opinion affirming the modification of custody. I cannot agree that the evidence supports a modification of custody under the standard set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984). The trial court had available to it methods of ensuring that the mother complied with its orders other than a modification of custody. In this case, the trial court has set forth a detailed judgment that ensures that the parents act in a mature manner that will not negatively impact the child, and the trial court may enforce that judgment through its contempt powers. I commend the trial court for ordering that these parents and the child participate in counseling.

As to the father’s cross-appeal, I concur in the result with regard to that part of the main opinion that affirms the trial court’s judgment on the issue of the child-support award.

      . The trial court specifically stated in its judgment that "the [father] used very poor judgment in pulling a firearm on another driver while driving down the road.”

      . The mother contends, for the first time on appeal, that the modification of custody was erroneous because there was not a compelling reason to separate the child from her half sister, i.e., the mother’s child with her current husband. There is no indication in the record on appeal that the mother presented this argument to the trial court. Accordingly, we will not consider it on appeal. See Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992) (an appellate court cannot consider argument that was not first presented to the trial court for its consideration).

      . In his CS-42 child-support form, the father calculated his proposed child-support obligation, including the offset for the full amount of the health-insurance premium paid by his wife, to be $232.57 per month.