author: THOMPSON, Presiding Judge.

text:
    Emily Brackin TERRY v. Adam G. TERRY.
    2110858.
    Court of Civil Appeals of Alabama.
    March 8, 2013.

      Rod M. Alexander, Moulton, for appellant.
    David W. Langston, Decatur, for appel-lee.
   On Application for Rehearing

THOMPSON, Presiding Judge.

This court’s opinion of December 7, 2012, is withdrawn, and the following is substituted therefor.

Emily Brackin Terry (“the mother”) appeals from a judgment of the Lawrence Circuit Court (“the trial court”) denying her request to move to South Carolina with the child she had with Adam G. Terry (“the father”).

The record indicates that the mother and the father have never been married to each other. The child was born in May 2007. As the result of a paternity action in the Lawrence Juvenile Court, the mother and the father were awarded joint legal custody of the child, and the mother was awarded primary physical custody, subject to the father’s visitation. The father pays child support.

The mother married Joshua Terry (“Terry”) in June 2011, when he graduated medical school. In his deposition, which was admitted at the evidentiary hearing in this matter, Terry said that when he proposed to the mother in January 2011, he did not know where he would be going to complete his residency program in anesthesiology. He explained that medical-school graduates do not have a choice regarding where they will go to complete their residencies; instead, they are “matched” with a program, and only one program is offered to each medical-school graduate. Completion of a residency program is required to obtain a license to practice medicine. In other words, Terry explained, the “system” tells a medical-school graduate where he or she has to go to take part in a residency program; the medical-school graduate does not make the choice. Terry explained that he applied to attend the residency program at the University of Alabama-Birmingham, and that that program was his first choice, but he was not assigned to that program. On March 15, 2011, Terry learned that he had been “matched” with the Medical University of South Carolina (“MUSC”), in Charleston. When Terry was deposed, he was in the first year of a four-year residency program in anesthesiology at MUSC.

The mother notified the father of her intention to move with the child from Lawrence County to Charleston when she and Terry married. The father agreed that the notice complied with the requirements of the Alabama Parent-Child Relationship Protection Act (“the Act”), § 30-3-160 et seq., Ala.Code 1975. The father timely objected to the proposed move, filed a petition to enjoin the move, and requested a custody modification. In response, the mother filed a counterclaim in which she asked that the father’s visitation schedule be modified in accordance with the trial court’s “out-of-state” visitation schedule. The child was permitted to move to South Carolina with the mother and Terry during the pendency of this action.

At the hearing on the parties’ respective pleadings, the father, who was 27 years old at the time of the hearing, testified that he was single and lived in a house in Trinity, in Lawrence County, that had belonged to his grandparents. The father testified that he was in a relationship with a woman who lived in Mississippi, that he hoped to marry, but that he did not intend to move to Mississippi.

The father worked for Naffco, a business that sells fire engines. His sales territory included north Alabama and all of Mississippi and Tennessee. The father said that he traveled for work and estimated that he stayed out of town overnight between four and six nights a month. The father was also required to travel to Pennsylvania for work a few times each year.

The mother testified that the child, Terry, and she lived in a gated community in a suburb of Charleston. At the time of trial, the child was four years old and attended a day care across the street from where the mother worked as a registered nurse for a gastroenterology center. The mother said she was never required to travel for work and that she was able to be home with the child every evening. She and Terry both described their life in Charleston, saying that they had joined a church there and that the child had made friends in the area. The evidence indicated that the child did not attend church with the father. The mother testified regarding cultural and historical sites the child had visited in Charleston that were not available in Lawrence County, such as a children’s museum, an aquarium, Fort Sumter National Monument, and the USS Yorktown, a World War II aircraft carrier.

The father said that he frequently spoke to the child on the telephone, but he complained that the mother was listening to the conversations by putting the father’s calls on the speakerphone. The mother testified that the child, who was four years old at the time, had learned to put the calls on the speakerphone after the mother allowed the child to talk to the father on the speakerphone as the child took a bath. The mother said that the child’s attention span for a “normal” telephone conversation was “not that long” and that the child would put the father’s calls on the speakerphone while he played. The mother said she did not intend to monitor the father’s conversations with the child, but she had become concerned when she overheard the father tell the child that South Carolina was not the child’s home. The mother said that, because they were living in South Carolina, she believed that South Carolina was the child’s home, and she did not believe the father’s comment was appropriate to tell a four-year-old child.

Much of the testimony involved the parties’ inability to reach an agreement regarding a visitation schedule, who would be required to travel for visitation, and who would be responsible for the costs associated with travel. There has been more than one visitation schedule entered in this matter, and the parties have gone to mediation in an attempt to work out a schedule between them. That effort was unsuccessful. The mother testified that she had discussed visitation issues with her attorney, and she believed that she was abiding by the schedule that was currently in place.

The father testified that he had continued to exercise his visitation after the child moved to South Carolina, and he acknowledged that, in fact, he was spending the same number of days with the child each month as he had before the child moved. The record also indicates that there had been conflict between the mother and the father when meeting to transfer the child, so the transfers have been carried out in public places, such as fast-food restaurants. The mother submitted a proposed visitation schedule that would provide the father with extended visitations around the holidays and during the summer. She also offered to let the father have additional visitations with the child in Charleston if the father visited there. The father proposed a visitation schedule that would require the child to use Thanksgiving Day and Christmas Day as travel days between the parties’ residences. The mother objected to that proposal on the basis that it would not be in the child’s best interest.

The father testified that he had taken vacations during the pendency of this litigation, but he had not traveled to South Carolina to see the child. The father said that he went to New Orleans when the University of Alabama played in the National Championship football' game in January 2012, but he did not have a ticket to attend the game. The father also traveled to two away games to see Alabama play football. The mother recalled an instance when the child’s maternal grandmother returned the child after the father’s scheduled weekend visitation because the father had gone out of state to see an Alabama football game. The father said that he also took a vacation to Gulf Shores, although he was aware that the child lived within minutes of a beach in South Carolina.

The mother and Terry are both from Lawrence County and have family in the area. When Terry’s sister married, the' child was in her wedding. The mother, Terry, and the child traveled from South Carolina to Lawrence County on the Friday before the Saturday wedding and returned home the day after the wedding. The father complained that the mother had not allowed a visit during that weekend. The father also complained that the mother had not allowed him to spend time with the child on the two other occasions when she and the child had returned to Alabama for a visit. The mother testified that the father had exercised a lengthy visitation just before one of those trips. She also said that the father had turned down offers totaling five weeks of visitation with the child. Because he had turned down those offers of visitation, the mother said, she did not believe the father should be entitled to visit with the child during her vacations with the child. The mother and Terry testified that, because of their work schedules, they did not have the opportunity to have long vacations in Alabama. Terry said that he and the mother hoped to return to north Alabama when he completed his residency, but, he said, whether he would be able to obtain a job as an anesthesiologist in north Alabama at that time would be dependent on the job market.

The evidence also indicated that the father had, on at least one occasion, refused to meet the mother at a location between Lawrence County and Charleston and that he did not take advantage of the visitation available to him on that occasion. When the father was asked whether he would expect the mother to travel from South Carolina for visitations with the child if the father was awarded custody, the father said he would be willing to drive the child to Georgia every other weekend if necessary. He also said that he did not believe that that much travel would be in the child’s best interest, adding, “I think the best interest of the child is for both parties to live here in Alabama and remain [sic] semblance of a normal family as much as possible.”

The mother testified that she intended to encourage the child to have a relationship with the father. The father said that, after the mother and the child moved to South Carolina, the father had taken the child to a counselor, and he conceded that ' there was no evidence indicating that the child had symptoms of separation anxiety or an attachment disorder.

After the hearing, the trial court found that the mother had failed to meet her burden of showing that the move to Charleston was in the child’s best interest and ordered that the child be returned to Lawrence County. In its findings of fact, the trial court wrote:

“There is little doubt in this Court’s mind that [the mother] has been the primary care giver for this child. However, this move to South Carolina involves a host of factors that affect this child. While the child does not seem to be suffering any negative effects, his father and joint legal custodian is. As the child has yet to begin school, a change of his principal place of residence from Alabama to South Carolina has not impacted him. To a certain degree, the change has not uprooted him although he is now living in an area where there is no support system. Other than his mother and stepfather, [the child’s] closest relatives, including his father, paternal grandparents, maternal grandparents, and step-grandparents, reside in Lawrence County, Alabama.”

(Emphasis added.)

The trial court went on to note the difficulties of implementing a visitation schedule when the parties lived approximately 400 miles from each other. It found that “previous court orders” regarding the father’s visitation rights had not been followed. However, earlier in the judgment, the trial court noted that “[t]he multitude of contempt actions and court orders only add to the confusion of this case,” and it set forth the visitation schedule the parties were to abide by until the child reached the age of five years. In discussing the difficulties involving visitation, the trial court stated: “This Court cannot fathom why this mother would not want her child, that lives some 400 miles away from his father, to have visitation with him when she comes to Lawrence County, other than to be spiteful and hurtful to [the father].”

In denying the mother the opportunity to relocate to South Carolina with the child, the trial court stated: “This Court is fully aware this order will create a hardship on [the mother]. However, it is a hardship partially of her own creation.” The trial court went on to point out that, before she married Terry, the mother knew of the “relocation language” set forth in the original visitation schedule that had resulted from the paternity action and knew that she might be denied the opportunity to relocate with the child when the father filed his objection to the move. The trial court also determined that the father’s request for a change in custody was moot, saying that it “assume[d] the mother will return with the minor child.” The mother appealed.

The mother argues that, in denying her request to relocate with the child, the trial court made findings that were plainly and palpably wrong, and she asserts that it improperly applied the presumption found in § 30-3-169.4, Ala.Code 1975, that a change in a child’s principal residence is not in the child’s best interest.

A trial court’s judgment based on ore tenus evidence is entitled to a presumption of correctness on appeal and will not be reversed absent a showing that the trial court abused its discretion or that the judgment is so unsupported by the evidence as to be plainly and palpably wrong. Scholl v. Parsons, 655 So.2d 1060 (Ala.Civ. App.1995). However, when the question presented on appeal is whether the trial court correctly applied the law, the ore tenus rule has no application. Ex parte Perkins, 646 So.2d 46 (Ala.1994).

Section 30-3-169.4 provides:

“In proceedings under this article unless there has been a determination that the party objecting to the change of the principal residence of the child has been found to have committed domestic violence or child abuse, there shall be a rebuttable presumption that a change of principal residence of a child is not in the best interest of the child. The party seeking a change of principal residence of a child shall have the initial burden of proof on the issue. If that burden of proof is met, the burden of proof shifts to the non-relocating party.”

In Clements v. Clements, 906 So.2d 952, 957 (Ala.Civ.App.2005), this court wrote of the presumption:

“Section 30-3-169.4 places the initial burden of proof on the party seeking the change in principal residence. If the party seeking the change in principal residence meets his or her burden of proving that the change in residence is in the child’s best interest, the burden then shifts to the nonrelocating party to demonstrate how the change in residence is not in the child’s hest interest. See § 30-3-169.4, Ala.Code 1975.”

The facts in Clements are similar to those in this case. The mother and the father in Clements lived in Autauga County when they divorced. The mother was awarded primary physical custody of their child. A year after the divorce, the mother married a physician who lived in Som-ers, New York, and she notified the father that she intended to move to New York with the child. The father objected, arguing, among other things, that the distance between him and the child would prohibit him from exercising visitation as often as he would like and that he was concerned he would have “no relationship” with the child if the child moved to New York. Id at 954.

In affirming the trial court’s judgment allowing the mother to relocate with the child, this court noted:

“The mother presented evidence indicating that she was the child’s primary caregiver; that she supported the furtherance of the child’s education; and that the move to New York would offer the child more cultural opportunities.
Thus, under § 30-3-169.4 the burden shifted to the father to demonstrate that a change in principal residence is not in the best interest of the child.”

Id. at 957.

In this case, too, the mother presented evidence indicating that she had always been the child’s primary caregiver. The mother testified that she worked across the street from the child’s day care and that she was home with the child every night. Like the child in Clements, the child in this case had not yet begun school, but the mother testified regarding the cultural opportunities the child had in Charleston that were not available in Lawrence County. The mother was married and her husband was taking an active role in assisting her with the child., There is no evidence indicating that the mother wished to move to South Carolina merely to stifle the relationship between the father and the child. The undisputed evidence indicated that the move was required for Terry to take part in a residency program. Without completing the residency program, Terry would not be able to practice medicine. We conclude that the mother presented sufficient evidence to support a finding that the relocation was in the child’s best interest. Therefore, pursuant to § 30-3-169.4, the burden shifted to the father to demonstrate that the relocation was not in the child’s best interest. The evidence indicated that the father is still .single and must frequently travel out of state for work, and he acknowledged that he spends four to six nights a month away from home. Additionally, the father is in a serious relationship with a woman who lives out of state. As the father and the trial court both acknowledged, there is no evidence indicating that the child has suffered any adverse effects from the move to South Carolina. The father made the statement that the mother and the child should have to remain in Lawrence County so they could “remain [sic] semblance of a normal family as much as possible.” In fact, the mother and the father were never married, and the parties have never lived together with or without the child.

In its judgment, the trial court admonished the mother for not providing time for the child to visit the father when the mother and the child returned to Lawrence County for a visit. However, the father acknowledged that, since the child had moved to South Carolina, he was seeing the child at least the same number of days as he had when the child lived in Lawrence County, and he talks to the child on the telephone five or six nights a week. The evidence indicated that Terry has only four days off a month. The mother testified that she and Terry chose to travel to Lawrence County occasionally to visit their families and have the child spend time with his extended maternal family; she testified that she wanted to do so without having to allocate time for the child to spend with the father beyond what is set forth in the visitation schedule. Nonetheless, the trial court’s judgment appears to penalize the mother for failing to provide the father with additional visitation time when she returns to Lawrence County for a visit. However, the father is free to vacation where he likes.

The trial court also stated that the situation the mother now finds herself in — i.e., facing a potential change of custody — is’ “partially of her own creation.” In denying the mother the opportunity to relocate with the child, the trial court explicitly stated that it “assumed” the mother would return to Lawrence County, and it “advised” the father that, if she did not, “he may file additional pleadings” regarding the custody of the child. Although visitation becomes more difficult when one parent relocates to a different area, there are viable solutions available to the parties without dismantling a family. In fact, the record indicates that the Lawrence Circuit Court has a standard “out-of-state” visitation schedule. The mother also agreed to provide reasonable visitation opportunities between the father and the child.

Based on the record before us, we conclude that, after the mother demonstrated that relocating the child to Charleston with the mother was in the child’s best interest, the father did not meet his burden of demonstrating that the move was not in the child’s best interest. Thus, the evidence does not support the trial court’s judgment, and the trial court abused its discretion in refusing to allow the mother to relocate to South Carolina with the child.

On rehearing, the father contends that, in our opinion on original submission, by instructing the trial court to enter a judgment consistent with this opinion, this court “failfed] to recognize the procedural posture of the case.” The father asserts that the judgment in this matter was entered before he had presented his case-in-chief. Therefore, he says, rather than having the trial court enter a judgment in favor of the mother, the cause should be remanded “for presentation of [the fa-therj’s case in chief.”

This matter came before the trial, court on the father’s petition objecting to the child’s proposed move. At the outset of the hearing, the trial judge said that the issues pending before the court included “the issue of the relocation matter of the child’s residence. There has also been filed a modification of custody by Adam Terry and there are also some various contempt charges that have been filed.” The trial judge then said that, because the mother had the burden of rebutting the presumption that the relocation was not in the child’s best interest, “we will proceed first with her testimony on that issue.” The record indicates that the father was the first witness to testify in this matter, but the direct examination was conducted by the mother’s attorney. At the close of the direct examination of the father, the father’s attorney stated that he reserved his questioning of the father “until we put on our case.”

At the close of the hearing, a recess was taken. When the hearing resumed, the parties’ attorneys and the trial judge had the following conversation:

“THE COURT: We just took a short break and the Court spoke with the attorneys. Is there anything else from you, [the mother’s attorney], at this time?
“[THE MOTHER’S ATTORNEY]: Not on this issue, Judge.
“THE COURT: Okay. And [the father’s attorney], understanding there are other issues, do you have anything at the present time?
“[THE FATHER’S ATTORNEY]: Not at this time, Judge.
“THE COURT: Okay. The question before this Court first is there is a presumption in the law that a parent is not to relocate outside of the State or more than 90 miles. I have to rule on that presumption before I can look any further at the other issues.
“Therefore, I’m going to have to take some things under advisement, I’m going to have to look at the testimony. I’m going to have to go into the code and look up some case law. So until that time, I’m going to issue an order that sets forth some visitation with [the father]. I will do that in the next day or so as quickly as I can. And the parties are to abide by that order.
“Once I issue my ruling, we may have the need for subsequent hearings or may not. So we will go forward at that point.”

In his brief on rehearing, the father asserts that the above-quoted statement indicates that “the trial court recognized that [the mother] had to carry her initial burden of proof before [the father] would be required to present his case against the move.” (Emphasis in original.) Therefore, he says, because the trial court entered a judgment determining that the mother had failed to carry her initial burden, the cause must now be remanded for the father to present his case-in-chief. We disagree.

The hearing was held on the father’s petition objecting to the child’s relocation. As indicated, the father chose not to put on any evidence of his own at that hearing. The trial court entered a judgment on the issue of relocation. This court reviewed the record and determined that the evidence did not support the trial court’s finding that the mother had failed to meet her burden of rebutting the presumption that the move was not in the child’s best interest and that the father had failed to demonstrate that that move was not in the child’s best interest.

The father has not cited any authority that would allow him to reopen the case to present further evidence in support of his petition. It is well established that

“Rule 28(a)(10)[, Ala. R.App. P.,] requires that arguments in briefs contain discussions of facts and relevant legal authorities that support the party’s position. If they do not, the arguments are waived. Moore v. Prudential Residential Servs. Ltd. P’ship, 849 So.2d 914, 923 (Ala.2002); Arrington v. Mathis, 929 So.2d 468, 470 n. 2 (Ala.Civ.App.2005); Hamm v. State, 913 So.2d 460, 486 (Ala. Crim.App.2002). ‘This is so, because “ ‘it is not the function of this Court to do a party’s legal research or to make and address legal arguments for a party based on undelineated general propositions not supported by sufficient authority or argument.’ ” ’ Jimmy Day Plumbing & Heating, Inc. v. Smith, 964 So.2d 1, 9 (Ala.2007) (quoting Butler v. Town of Argo, 871 So.2d 1, 20 (Ala.2003), quoting in turn Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251 (Ala.1994)).”

White Sands Group, L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1058 (Ala.2008).

If the father wished to rebut the mother’s evidence, the time to do so was at the hearing on the issue of the child’s relocation. See, e.g., Bates v. Bates, 103 So.3d 836 (Ala.Civ.App.2012). As the record clearly demonstrates, he made the decision not to do so. Accordingly, we conclude that the father knowingly waived his right to present further evidence on the issue of the child’s relocation.

Because we conclude that the trial court erred in denying the mother’s request to relocate, we pretermit consideration of the other issues the mother has raised on appeal. For the reasons set forth above, the judgment of the trial court is reversed, and the cause is remanded to the trial court for the entry of a judgment consistent with this opinion.

APPLICATION FOR REHEARING OVERRULED; OPINION OF DECEMBER 7, 2012, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED.

PITTMAN, THOMAS, MOORE, and DONALDSON, JJ„ concur.

      . We are unable to determine from the record who filed the paternity action.

      . Although the father and the mother’s husband have the same last name, there is no indication in the record that they are related.

      3. Section 30-3-169.4 provides that “there shall be a rebuttable presumption that a change of principal residence of a child is not in the best interest of the child.’’ We also note that § 30-3-162(b), Ala.Code 1975, provides that § 30-3-169.4, among others,
      “shall not apply to a change of principal residence of a child to a residence which is 60 miles or less from the residence of a non-relocating parent who is entitled to custody of or visitation with the child or if the change or proposed change results in the child residing nearer to the non-relocating parent than before the change or proposed change, unless such change in the principal residence of a child results in the child living in a different state."


source: Caselaw Access Project

author: STUART, Justice. MURDOCK, Justice WISE, Justice

license: Public Domain

text:
    Ex parte Adam G. TERRY. (In re Emily Brackin Terry v. Adam G. Terry).
    1120738.
    Supreme Court of Alabama.
    Dec. 13, 2013.

      David W. Langston of Harris, Caddell & Shanks, P.C., Decatur, for petitioner.
    Rod M. Alexander, Moulton, for respondent.

       Justice Bryan was a member of the Court of Civil Appeals when that court considered this case.

   STUART, Justice.

Adam G. Terry (“the father”) petitioned this Court for a writ of certiorari to review the judgment of the Court of Civil Appeals reversing an order of the Lawrence Circuit Court enjoining Emily Brackin Terry (“the mother”) from relocating from Lawrence County to Charleston, South Carolina, with their son (“the child”). See Terry v. Terry, 154 So.3d 993 (Ala.Civ.App.2013). We granted the father’s petition to consider whether the Court of Civil Appeals erred by reversing the trial .court’s judgment and directing the trial court to enter a judgment in favor of the mother. We affirm in part and reverse in part.

I.

The father and mother had a child together in May 2007; they were not married. Following a paternity action in the Lawrence Juvenile Court, the father and mother were awarded joint legal custody of the child, and the mother was awarded primary physical custody, subject to the father’s visitation. In January 2011, the mother became engaged to Joshua Terry, a fourth-year medical-school student. At that time, Joshua was applying for postgraduate residence programs. Although Joshua’s first choice was the University of Alabama at Birmingham, on March 15, 2011, he was ultimately “matched” with a program at the Medical University of South Carolina in Charleston, South Carolina. The mother subsequently notified the father pursuant to the requirements of the Alabama Parent-Child Relationship Protection Act (“the Act”), § 30-3-160 et seq., Ala.Code 1975, that she intended to move with the child to Charleston. The father opposed the move and petitioned the trial court to enjoin the move or, in the alternative, to award him sole physical custody of the child. In June 2011, the mother and Joshua married, and the child was subsequently allowed to move to South Carolina with them while this action was pending.

An evidentiary hearing was thereafter held. At the outset of that hearing, the trial court stated that it was there to consider “the relocation matter,” a petition seeking “a modification of custody” filed by the father, and “various contempt charges that have been filed as well.” The trial court then stated:

“The Court also notes that pursuant to the [Alabama] Code, § 30-3-169.4, it’s the burden of [the mother] to rebut the presumption that the change of residence of the child ... is not in the child’s best interest. So we will proceed first with her testimony on that issue.”

The mother then proceeded to question the father, give her own testimony, and submit deposition testimony from Joshua. The Court of Civil Appeals summarized the evidence adduced by the mother as follows:

“At the hearing on the parties’ respective pleadings, the father, who was 27 years old at the time of the hearing, testified that he was single and lived in a house in Trinity, in Lawrence County, that had belonged to his grandparents. The father testified that he was in a relationship with a woman who lived in Mississippi, that he hoped to marry, but that he did not intend to move to Mississippi.
“The father worked for Naffco, a business that sells fire engines. His sales territory included north Alabama and all of Mississippi and Tennessee. The father said that he traveled for work and estimated that he stayed out of town overnight between four and six nights a month. The father was also required to travel to Pennsylvania for work a few times each year.
“The mother testified that the child, [Joshua], and she lived in a gated community in a suburb of Charleston. At the time of trial, the child was four years old and attended a day care across the street from where the mother worked as a registered nurse for a gastroenterolo-gy center. The mother said she was never required to travel for work and that she was able to be home with the child every evening. She and [Joshua] both described their life in Charleston, saying that they had joined a church there and that the child had made friends in the area. The evidence indicated that the child did not attend church with the father. The mother testified regarding cultural and historical sites the child had visited in Charleston that were not available in Lawrence County, such as a children’s museum, an aquarium, Fort Sumter National Monument, and the USS Yorktown, a World War II aircraft carrier.
“The father said that he frequently spoke to the child on the telephone, but he complained that the mother was listening to the conversations by putting the father’s calls on the speakerphone. The mother testified that the child, who was four years old at the time, had learned to put the calls on the speakerphone after the mother allowed the child to talk to the father on the speakerphone as the child took a bath. The mother said that the child’s attention span for a ‘normal’ telephone conversation was ‘not that long1 and that the child would put the father’s calls on the speakerphone while he played. The mother said she did not intend to monitor the father’s conversations with the child, but she had become concerned when she overheard the father tell the child that South Carolina was not the child’s home. The mother said that, because they were living in South Carolina, she believed that South Carolina was the child’s home, and she did not believe the father’s comment was appropriate to tell a four-year-old child.
“Much of the testimony involved the parties’ inability to reach an agreement regarding a visitation schedule, who would be required to travel for visitation, and who would be responsible for the costs associated with travel. There has been more than one visitation schedule entered in this matter, and the parties have gone to mediation in an attempt to work out a schedule between them. That effort was unsuccessful. The mother testified that she had discussed visitation issues with her attorney, and she believed that she was abiding by the schedule that was currently in place.
“The father testified that he had continued to exercise his visitation after the child moved to South Carolina, and he acknowledged that, in fact, he was spending the same number of days with the child each month as he had before the child moved. The record also indicates that there had been conflict between the mother and the father when meeting to transfer the child, so the transfers have been carried out in public places, such as fast-food restaurants. The mother submitted a proposed visitation schedule that would provide the father with extended visitations around the holidays and during the summer. She also offered to let the father have additional visitations with the child in Charleston if the father visited there. The father proposed a visitation schedule that would require the child to use Thanksgiving Day and Christmas Day as travel days between the parties’ residences. The mother objected to that proposal on the basis that it would not be in the child’s best interest.
“The father testified that he had taken vacations during the pendency of this litigation, but he had not traveled to South Carolina to see the child. The father said that he went to New Orleans when the University of Alabama played in the National Championship football game in January 2012, but he did not have a ticket to attend the game. The father also traveled to two away games to see Alabama play football. The mother recalled an instance when the child’s maternal grandmother returned the child after the father’s scheduled weekend visitation because the father had gone out of state to see an Alabama football game. The father said that he also took a vacation to Gulf Shores, although he was aware that the child lived within minutes of a beach in South Carolina.
“The mother and [Joshua] are both from Lawrence County and have family in the area. When [Joshua’s] sister married, the child was in her wedding. The mother, [Joshua], and the child traveled from South Carolina to Lawrence County on the Friday before the Saturday wedding and returned home the day after the wedding. The father complained that the mother had not allowed a visit during that weekend. The father also complained that the mother had not allowed him to spend time with the child on the two other occasions when she and the child had returned to Alabama for a visit. The mother testified that the father had exercised a lengthy visitation just before one of those trips. She also said that the father had turned down offers totaling five weeks of visitation with the child. Because he had turned down those offers of visitation, the mother said, she did not believe the father should be entitled to visit with the child during her vacations with the child. The mother and [Joshua] testified that, because of their work schedules, they did not have the opportunity to have long vacations in Alabama. [Joshua] said that he and the mother hoped to return to north Alabama when he completed his residency, but, he said, whether he would be able to obtain a job as an anesthesiologist in north Alabama at that time would be dependent on the job market.
“The evidence also indicated that the father had, on at least one occasion, refused to meet the mother at a location between Lawrence County and Charleston and that he did not take advantage of the visitation available to him on that occasion. When the father was asked whether he would expect the mother to travel from South Carolina for visitations with the child if the father was awarded custody, the father said he would be willing to drive the child to Georgia every other weekend if necessary. He also said that he did not believe that that much travel would be in the child’s best interest, adding, T think the best interest of the child is for both parties to live here in Alabama and remain [sic] semblance of a normal family as much as possible.’
“The mother testified that she intended to encourage the child to have a relationship with the father. The father said that, after the mother and the child moved to South Carolina, the father had taken the child to a counselor, and he conceded that there was no evidence indicating that the child had symptoms of separation anxiety or an attachment disorder.”

Terry, 154 So.3d at 995-97. At the close of the mother’s case, a recess was held. After that recess, the following colloquy took place:

“COURT: We just took a short break and the court spoke with the attorneys. Is there anything else from you, [the mother’s attorney], at this time?
“[MOTHER’S ATTORNEY]: Not on this issue, Judge.
“[COURT]: Okay. And, [the father’s attorney], understanding there are other issues, do you have anything at the present time?
“[FATHER’S ATTORNEY]: Not at this time, Judge.
“[COURT]: Okay. The question before this court first is — there is a presumption in the law that a parent is not to relocate outside of the State or more than ninety miles. I have to rule on that presumption before I can look any further at the other issues. Therefore, I’m going to have to take some things under advisement. I’m going to have to look at the testimony. I’m going to have to go into the Code and look up some caselaw. So until that time, I’m going to issue an order that sets forth some visitation for [the father]. I will do that in the next day or so as quickly as I can. And the parties are to abide by that order. Once I issue my ruling, we may have the need for subsequent hearings or may not. So we will go forward at that point.”

On May 27, 2011, the trial court entered an order finding that the mother had not met her burden of showing that the move to Charleston was in the child’s best interest and ordering that the child be returned to Lawrence County. In that order, the trial court stated:

“There is little doubt in this court’s mind that [the mother] has been the primary caregiver to this child. However, this move to South Carolina involves a host of factors that affect the child. While the child does not seem to be suffering any negative effect, his father and joint legal custodian is. As the child has yet to begin school, a change of his principal place of residence from Alabama to South Carolina has not impacted him. To a certain degree, the change has not uprooted him though he is now living in an area where there is no support system. Other than his mother and stepfather, [his] closest relatives, including his father, paternal grandparents, maternal grandparents, and step-grandparents, reside in Lawrence County, Alabama.
“This move has increased travel time for the parties as the mother has moved with the child some eight to nine hours away. Such a move does not allow for a feasible and suitable visitation schedule. Visitation rights, such as Thanksgiving, afforded to this father through previous court orders have not been followed. This court cannot fathom why this mother would not want her child, that lives some 400 miles away from his father, to have visitation -with him when she comes home to Lawrence County, other than to be spiteful and hurtful to [the father]. On two separate occasions on October 29, 2011, and December 16, 2011, [the mother] was in town and did not offer nor even suggest to [the father] that he could see his child. Although the child was here from February 19, 2012, until February 26, 2012, [the mother] afforded [the father] a mere one hour of visitation. Such action is uncalled for- and is further proof to this court that [the mother] has no intention of fostering and facilitating a necessary father/son relationship. This court does not believe that [the mother] will comply with any new visitation arrangement nor is she disposed to foster a joint parenting arrangement with [the father].
“Based upon the Alabama Parent-Child Relationship Protection Act, this Court does hereby find the mother ... has failed to meet her burden of proof pursuant to § 30-3-169.4 and the rebut-table presumption that a change of a principal residence of a child is not in the best interest of said child. It is therefore not in the interest of the minor child for his residence to be relocated from Lawrence County, Alabama, and [the mother] is hereby ORDERED to return the minor child to the State of Alabama. The minor child shall return to Lawrence County, Alabama, within thirty (30) days of the entry of this order.
“This court is aware that this order will create a hardship on [the mother]. However, it is a hardship partially of her own creation. In advance of her wedding she was aware of [the] existence of this relocation language in [the previous trial court judge’s] order. [The mother] was also aware of this possibility once the objection was filed by [the father].”

(Capitalization in original.) The mother appealed the trial court’s judgment to the Court of Civil Appeals, which reversed the judgment, holding that the mother had met her burden and had presented sufficient evidence to support a finding that relocation was in the child’s best interest. Terry, 154 So.3d at 999. The Court of Civil Appeals further held that the father had not met his burden of demonstrating that the move was not in the child’s best interest and that the trial court had accordingly exceeded its discretion in refusing to allow the mother to relocate the child to South Carolina. Id.

The father applied for a rehearing, arguing that the Court of Civil Appeals should not have reversed the trial court’s judgment and instructed it to enter a judgment consistent with the Court of Civil Appeals’ opinion but should have instead remanded the case to allow the father to present his case-in-chief. Such action was required, the father argued, based on the shifting burdens outlined in § 30-3-169.4 (“The party seeking a change of principal residence of a child shall have the initial burden of proof on the issue [of whether relocation is in the child’s best interest]. If that burden of proof is met, the burden of proof shifts to the non-relocating party.”). The Court of Civil Appeals then withdrew its opinion and substituted a new opinion in which it specifically held that, “[i]f the father wished to rebut the mother’s evidence, the time to do so was at the hearing on the issue of the child’s relocation.” Terry, 154 So.3d at 1002. In accordance with that holding, the Court of Civil Appeals again reversed the judgment of the trial court and ordered that court to enter a judgment consistent with the Court of Civil Appeals’ opinion. The father then petitioned this Court for certiorari review of that opinion, and, on April 10, 2013, we granted his petition.

II.

In his petition and supporting briefs, the father argues that we should reverse the judgment of the Court of Civil Appeals because, he argues, that court failed to properly apply the ore tenus rule and instead reweighed the evidence and substituted its judgment for that of the trial court. See, e.g., Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala.1996) (“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 terms before the trial court in a custody hearing.”). The father further argues that, even if we see no merit in his first argument and affirm the Court of Civil Appeals’ holding that the mother overcame the initial rebuttable presumption in § 30-3-169.4, we should remand the case for the trial court to allow him to attempt to meet the burden of proof that, he says, has now shifted to him. Until now, the father argues, he has never borne the burden of proof in this case, and it would be improper under the Act to deny him the opportunity to meet that burden. See Toler v. Toler, 947 So.2d 416, 421 (Ala.Civ. App.2006) (“The mother [as the relocating party] bore the initial burden of proof as to whether a change of principal residence was in the son’s best interests .... Until that burden of proof was met, the burden of proof in the present case did not shift to the father.”).

In considering whether the mother successfully rebutted the initial presumption of § 30-3-169.4, the Court of Civil Appeals stated:

“In Clements v. Clements, 906 So.2d 952, 957 (Ala.Civ.App.2005), this court wrote of the presumption:
“ ‘Section 30-3-169.4 places the initial burden of proof on the party seeking the change in principal residence. If the party seeking the change in principal residence meets his or her burden of proving that the change in residence is in the child’s best interest, the burden then shifts to the non-relocating party to demonstrate how the change in residence is not in the child’s best interest. See § 30-3-169.4, Ala.Code 1975.’
“The facts in Clements are similar to those in this case. The mother and the father in Clements lived in Autauga County when they divorced. The mother was awarded primary physical custody of their child. A year after the divorce, the mother married a physician who lived in Somers, New York, and she notified the father that she intended to move to New York with the child. The father objected, arguing, among other things, that the distance between him and the child would prohibit him from exercising visitation as often as he would like and that he was concerned he would have ‘no relationship’ with the child if the child moved to New York. Id. at 954.
“In affirming the trial court’s judgment allowing the mother to relocate with the child, this court noted:
“ ‘The mother presented evidence indicating that she was the child’s primary caregiver; that she supported the furtherance of the child’s education; and that the move to New York would offer the child more cultural opportunities. Thus, under § 30-3-169.4 the burden shifted to the father to demonstrate that a change in principal residence is not in the best interest of the child.’
“Id. at 957.
“In this case, too, the mother presented evidence indicating that she had always been the child’s primary caregiver. The mother testified that she worked across the street from the child’s day care and that she was home with the child every night. Like the child in Clements, the child in this case had not yet begun school, but the mother testified regarding the cultural opportunities the child had in Charleston that were not available in Lawrence County. The mother was married and her husband was taking an active role in assisting her with the child. There is no evidence indicating that the mother wished to move to South Carolina merely to stifle the relationship between the father and the child. The undisputed evidence indicated that the move was required for [Joshua] to take part in a residency program. Without completing the residency program, [Joshua] would not be able to practice medicine. We conclude that the mother presented sufficient evidence to support a finding that the relocation was in the child’s best interest. Therefore, pursuant to § 30-3-169.4, the burden shifted to the father to demonstrate that the relocation was not in the child’s best interest.”

154 So.3d at 999. We agree with this general analysis. However, we are persuaded by the father’s argument that he should be presented an opportunity to argue his case before a judgment is entered in the mother’s favor.

At the start of the hearing in the trial court, the trial court decided that, because the mother bore the initial burden of proof under § 30-3-169.4, she should present her evidence first. As part of her case, the mother’s attorney first questioned the father. Following that questioning, the father’s attorney stated that he would “reserve [his] examination [of the father] until we put on our case if I may.” The trial court responded “okay,” and the mother then gave her testimony, after which she was cross-examined by the father’s attorney. The deposition of Joshua was then read, and, following an off-the-record discussion between the trial court and the attorneys, the mother rested her case. The trial court then recognized that “there are other issues” but' asked the father’s attorney if he had “anything at the present time.” The father’s attorney responded “[n]ot at this time.”

As quoted, supra, the trial court judge then stated that he had “to rule on [the § 30-3-169.4] presumption before [he could] look any further at the other issues” and that, once he ruled on that presumption, “we may have the need for subsequent hearings.” It is clear from these final comments, as well as other comments made by the attorneys and the trial judge throughout the hearing, that the trial court and the parties contemplated those subsequent hearings not just to consider the separate issues raised by the parties, i.e., the father’s petition to modify custody and the outstanding contempt charges, but to fully resolve “the relocation matter” if it was determined that the mother had successfully rebutted the initial § 30-3-169.4 presumption and shifted the burden of proof to the father. Until that determination was made, the father did not bear the burden of proof, and it is evident that the trial court intended to provide him with an opportunity to meet that burden if it was determined that the burden of proof had indeed shifted. See § 30-3-169.4 and To-ler, 947 So.2d at 421.

The legislature has set forth this state’s general policy regarding joint-custody arrangements as follows:

“It is the policy of this state to assure that minor children have frequent and continuing contact with parents who have shown the ability to act in the best interest of their children and to encourage parents to share in the rights and responsibilities of rearing their children after the parents have separated or dissolved their marriage.... ”

Section 30-3-150, Ala.Code 1975. See also Knight v. Knight, 53 So.3d 942, 959 (Ala. Civ.App.2010) (Bryan, J., concurring in part and dissenting in part) (“The standard, as supported by the enunciation of the public policy of this State in § 30-3-150 and- § 30-3-160, [Ala.Code 1975,] is that the child needs both parents.”). In light of this legislative pronouncement that children should have “frequent and continuing contact with parents,” the fundamental importance of a parent’s right to have an active part in the raising of his or her child, and the apparent understanding of the trial court and the father that the father would have an opportunity to present evidence indicating that a change of the child’s principal residence was not in the child’s best interest if the burden of proof as to that issue shifted to him, we reverse the judgment of the Court of Civil Appeals to the extent it decided otherwise.

However, we emphasize that our holding is limited to the unique facts in this case. As a general rule, piecemeal litigation is discouraged because it often wastes scarce judicial resources. Ex parte Breman Lake View Resort, L.P., 729 So.2d 849, 851 (Ala.1999). Thus, the procedure followed by the trial court in the instant case should be avoided in future parental-relocation cases' or, for that matter, any other case involving shifting burdens of proof. Rather, in a parental-relocation case, both parents should present their entire case in the initial proceeding, and the trial court should then consider all the evidence when determining, first, whether the relocating parent met his or her initial burden of proving that a change in the child’s principal residence is in that child’s best interest, and, if then necessary, whether the nonrelocating parent subsequently established by the greater weight of the evidence that a change in the child’s principal residence was not in the child’s best interest. § 80-3-169.4.

III.

The father petitioned this Court for cer-tiorari review of the Court of Civil Appeals’ judgment holding that the trial court erred in concluding that the mother did not meet her burden of rebutting the § 30-8-169.4 presumption that the move to South Carolina was not in the child’s best interest. We now affirm that court’s judgment in that respect. However, insofar as the Court of Civil Appeals’ judgment directed the trial court to enter a judgment in favor of the mother on remand, that judgment is reversed. Instead, on remand, the father should be presented an opportunity to present his evidence and arguments supporting his position that a change in the child’s principal residence is not in the child’s best interest. Following the presentation of that evidence, the trial court is to enter a judgment based on the totality of the evidence presented at both the hearing held on remand and the earlier hearing.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

BOLIN, PARKER, SHAW, and MAIN, JJ., concur.

MURDOCK, J., concurs in the result.

MOORE, C.J., and WISE, J., dissent.

BRYAN, J., recuses himself.

MURDOCK, Justice

(concurring in the result).

Because of the unique procedural posture in which the trial court put the father in this case (as described in the main opinion) and because the mother presents no challenge to the particular manner in which the trial court framed the order that is before us at this juncture, I concur in the result reached by the main opinion.

As to the latter point, the trial court in this proceeding orders the mother “to return the minor child to the State of Alabama.” The trial court, of course, cannot constitutionally order the mother to live in Alabama or in any particular location within Alabama. At this juncture, the mother remains the primary custodian of the child. As the parent and primary custodian of the child, she currently is maintaining her residence and the child’s residence in South Carolina, where her husband is in a four-year medical-residency program. In addition, it is fundamental that, as the parent and primary custodian of the child, the mother is entitled to the “care, custody and control” of her child, see, e.g., Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), including establishing the child’s residence in her home, wherever that' may be. Assuming the mother chooses to continue living in South Carolina, unless and until the trial court orders a change of custody to the father, the mother would be entitled to keep the child with her in South Carolina.

Put differently, the trial court, after applying the applicable burdens of proof and making an appropriate best-interest determination under the Alabama Parenfi-Child Relationship Protection Act, § 30-8-160 et seq., Ala.Code 1975, may order a change of custody to the noncustodial parent conditioned on the refusal of the relocating, custodial parent to return with the child to Alabama. Unless and until it orders a change of custody to the nonrelocating parent, however, it cannot simply order that the child be returned to Alabama. Toler v. Toler, 947 So.2d 416, 423 n. 3 (Ala.Civ.App.2006) (Murdock, J., concurring specially). In the present proceeding, however, the mother does not challenge the manner in which the trial court has framed its order in this case; accordingly, the constitutional and practical deficiencies in that order are not an obstacle to my concurring in the result reached by the main opinion.

WISE, Justice

(dissenting).

I respectfully dissent from the majority’s decision to affirm the Court of Civil Appeals’ judgment holding that the trial court erred in concluding that the mother failed to meet her burden of rebutting the § 30-3-169.4 presumption that the move to South Carolina was not in the child’s best interest.

In this case, the trial court explained specifically why it found that the mother had not rebutted the presumption that a change in the child’s principal residence was not in the child’s best interest. First, the child’s closest relatives, including his father, paternal grandparents, maternal grandparents, and step-grandparents, reside in Lawrence County, Alabama. Second, the “move does not allow for a feasible and suitable visitation schedule,” and the parties have already experienced disputes regarding visitation. Although the mother testified that she intended to encourage the child to have a relationship with the father, her actions obviously spoke more loudly than her words to the trial court, which noted:

“This Court cannot fathom why this mother would not want her child, that lives some 400 miles away from his father, to have visitation with him when she comes to Lawrence County, other than to be spiteful and hurtful to [the father]. On two separate occasions on October 29, 2011, and December 16, 2011, [the mother] was in town and did not offer nor even suggest to [the father] that he could see his child. Although the child was here from February 19, 2012, until February 26, 2012, [the mother] afforded [the father] a mere one hour of visitation. Such action is uncalled for and is further proof to this court that [the mother] has no intention of fostering and facilitating a necessary father/son relationship. This court does not believe that [the mother] will comply with any new visitation arrangement nor is she disposed to foster a joint parenting arrangement with [the father].”

Third, as the trial court specifically pointed out:

“This Court is aware that this order will create a hardship bn [the mother]. However, it is a hardship partially of her own creation. In advance of her wedding she was aware of [the] existence of this relocation language in [the previous trial court judge’s] order. [The mother] was also aware of this possibility once the objection was filed by [the father].”

In this case, the record supports the trial court’s finding that a change in the child’s principal residence was not in the child’s best interest, and I agree with that court’s assessment.

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

Henderson v. Henderson, 978 So.2d 86, 39 (Ala.Civ.App.2007). Instead of applying that standard of review, it appears to me that the Court of Civil Appeals improperly reweighed the evidence when it found in favor of the mother. However, “an appellate court may not substitute its judgment for that of the trial court. [Ex parte ] Durbin, 818 So.2d [404,] 409 [ (Ala.2001) ]. To do so would be to reweigh the evidence, which Alabama law does not allow. Ex parte H.H., 880 So.2d [21,] 25-26 [(Ala. 2002) ].” See Ex parte Foley, 864 So.2d 1094, 1099 (Ala.2003). Accordingly, I would affirm the trial court’s judgment denying the mother’s request for a change in the child’s principal residence. Therefore, I respectfully dissent.

MOORE, C.J., concurs.

      . The father and the mother were never married, nor did they ever live together. It appears to be just a coincidence that the father and the mother’s husband have the same last name; there is no indication they are related.

      . The "matching" process for graduating medical-school students is described in National Resident Matching Program v. Electronic Residency LLC, 720 F.Supp.2d 92, 96 (D.D.C.2010), as follows:
      "National Resident Matching Program ('NRMP') is a not-for-profit corporation that conducts 'the Match,’ an annual program through which senior medical students apply and are assigned to open medical residency positions. To participate in the Match, an applicant must register with NRMP and comply with the terms of a contractual agreement, the ‘Match Participation Agreement.’ Each applicant provides NRMP with a list ranking the residency programs to which the applicant wishes to be assigned; each residency program, in turn, submits to NRMP a list ranking the applicants that it is willing to hire. Once those lists are entered into a database, NRMP runs a computer program that pairs applicants with open positions in a manner calculated to produce ‘optimal matches of applicants to programs.’ ”
      (Internal citations omitted.)

      . Section 30-3-169.4, Ala.Code 1975, provides:
      "In proceedings under this article unless there has been a determination that the party objecting to the change of the principal residence of the child has been found to have committed domestic violence or child abuse, there shall be a rebuttable presumption that a change of principal residence of a child is not in the best interest of the child. The party seeking a change of principal residence of a child shall have the initial burden of proof on the issue. If that burden of proof is met, the burden of proof shifts to the non-relocating party.”
      There is no allegation in the record that the father has ever committed domestic violence or child abuse.


text:
    Emily Brackin TERRY v. Adam G. TERRY.
    2110858.
    Court of Civil Appeals of Alabama.
    Feb. 7, 2014.
    Rod M. Alexander, Moulton, for appellant.
    David W. Langston, Decatur, for appel-lee.
   After Remand from the Alabama Supreme Court

THOMPSON, Presiding Judge.

The prior judgment of this court has been reversed in part and the cause remanded by the Supreme Court of Alabama. Ex parte Terry, 154 So.3d 1002 (Ala.2013). On remand, based on our prior holding, which was affirmed by the supreme court, the trial court’s judgment is reversed insofar as the trial court determined that Emily Brackin Terry, the mother, had not met her burden of rebutting the presumption in § 30-3-169.4, Ala. Code 1975, that her proposed move with the parties’ child to South Carolina was in the child’s best interest. However, in compliance with the Supreme Court’s opinion, we remand the cause to the trial court with instructions to provide Adam G. Terry, the father, an opportunity to present evidence supporting his position that the proposed change in the child’s principal residence is not in the child’s best interest. The trial court is then instructed to enter a judgment based on the totality of evidence presented at. both the hearing held on remand and the earlier hearing.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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


author: PER CURIAM. PITTMAN, Judge,

text:
    Shirley HINES v. TRINITY CONTRACTORS, INC. Scotty Kelley v. Trinity Contractors, Inc.
    2120295 and 2120296.
    Court of Civil Appeals of Alabama.
    March 28, 2014.
    Certiorari Petitions Denied June 6,2014 Alabama Supreme Court 1130755 and 1130765.

      Jason L. Yearout of Yearout & Traylor, P.C., Birmingham, for appellant Shirley Hines.
    Keith M. McKerall and Justin L. Jones of King Wiley & Williams, Jasper, for appellant Scotty Kelley.
    Thomas Coleman, Jr., of Smith, Spires & Peddy, P.C., Birmingham, for appellee.
   On Applications for Rehearing

PER CURIAM.

The opinion of August 9, 2013, is withdrawn and the following is substituted therefor.

In appeal no. 2120295, Shirley Hines appeals from an order of the Jefferson Circuit Court (“the trial court”) granting a motion for a summary judgment filed by Trinity Contractors, Inc. (“Trinity”), against her in case no. CV-10-741. In appeal no. 2120296, Scotty Kelley appeals from an order of the trial court granting a motion for a summary judgment filed by Trinity against him in case no. CV-10-901231, which had been consolidated with case no. CV-10-741.

Factual Background and Procedural History

Both of these appeals stem from complaints arising out of an automobile accident that occurred on June 1, 2009. The following facts are undisputed. On June 1, 2009, at approximately 7:00 a.m., Hines was traveling on Interstate 59 near Fair-field, outside Birmingham, where two lanes in each direction are separated by a median. Hines was traveling northbound in the left lane next to the median when she lost control of her vehicle, causing it to go down into the median and back up into oncoming traffic in a southbound lane. Upon entering the southbound lane, Hines’s vehicle struck a black pickup truck that was being driven by Kelley, which was catapulted and then hit by an 18-wheel tractor-trailer truck that was being driven by Marshall Kelly Cummings and was owned by Southern Haulers, LLC.

Hines filed a complaint, which was assigned case no. CV-10-741, on March 9, 2010, alleging that a vehicle that belonged to Trinity had caused her vehicle to travel off the road and into the median. Hines asserted claims of negligence and wantonness against Trinity and a number of fictitiously named defendants, and she asserted a claim for uninsured- and un-derinsured-motorist coverage against Farmers Insurance Exchange, with whom Hines had a policy of automobile insurance at the time of the accident. Farmers and Trinity filed separate answers to Hines’s complaint.

On April 13, 2010, Southern Haulers filed a complaint asserting claims of negligence and wantonness against Hines, Trinity, and a number of fictitiously named defendants and claims of “negligent and/or wanton entrustment” and “negligence and/or wantonness respondeat superior and/or common law agency and/or vicarious liability” against certain fictitiously named defendants; that complaint was assigned case no. CV-10-901231. Hines and Trinity filed separate answers to Southern Haulers’ complaint. Trinity subsequently filed a motion requesting that the trial court consolidate case no. CV-10-741 and case no. CV-10-901231 for the purposes of discovery and trial; the trial court granted that motion. Southern Haulers later amended its complaint to add Kelley as a defendant. Kelley filed a cross-claim against Trinity and a number of fictitiously named defendants, asserting claims of negligence and wantonness. Trinity filed an answer to Kelley’s cross-claim.

On May 16, 2011, Hines filed in case no. CV-10-901231 a motion for a summary judgment as to all claims asserted against her by Southern Haulers in that action. On June 17, 2011, the trial court entered an order in case no. CV-10-901231 granting Hines’s summary-judgment motion as to the claims of negligence and wantonness asserted against her by Southern Haulers. Additionally, having granted Hines’s summary-judgment motion, the trial court dismissed all claims that had been asserted against Hines in Southern Haulers’ complaint.

Southern Haulers and Kelley filed a joint stipulation for dismissal in case no. CV-10-901231, agreeing to dismiss Southern Haulers’ claims against Kelley; the trial court, pursuant to that stipulation, dismissed Southern Haulers’ claims against Kelléy. On January 26, 2012, Kelley and Hines filed a joint motion to realign the parties, and the trial court granted the joint motion, realigning Kelley and Hines as plaintiffs with Southern Haulers.

On August 15, 2012, Trinity filed in each action a motion for a summary judgment as to all claims asserted against it. The trial court entered an order in each action on November 6, 2012, granting Trinity’s motion for a summary judgment on all claims asserted against Trinity. In both of those orders, the trial court directed the entry of a final judgment, pursuant to Rule 54(b), Ala. R. Civ. P. Hines and Kelley each filed timely notices of appeal to the supreme court; that court transferred the appeals to this court, pursuant to Ala.Code 1975, § 12-2-7(6), and this court consolidated the appeals, ex mero motu.

Discussion

An appellate court’s review of a summary judgment is well settled.

“We review a summary judgment de novo. American Liberty Ins. Co. v. AmSouth Bank, 825 So.2d 786 (Ala. 2002).
“ ‘We apply the same standard of review the trial court used in determining whether the evidence presented to the trial court created a genuine issue of material fact. Once a party moving for a summary judgment establishes that no genuine issue of material fact exists, the burden shifts to the non-movant to present substantial evidence creating a genuine issue of material fact. “Substantial evidence” is “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” In reviewing a summary judgment, we view the evidence in the light most favorable to the nonmovant and entertain such reasonable inferences as the jury would have been free to draw.’
“Nationwide Prop. & Cas. Ins. Co.[ v. DPF Architects, P.C.], 792 So.2d [369] at 372 [ (Ala.2000) ] (citations omitted), quoted in American Liberty Ins. Co., 825 So.2d at 790.”

Potter v. First Real Estate Co., 844 So.2d 540, 545 (Ala.2002).

Trinity attached a number of exhibits to its summary-judgment motion. One of those exhibits was the June 28, 2010, deposition of Chari Dickson-Fikes, who testified that, at the time of the accident, she was driving in a vehicle following Hines’s vehicle, that a white truck in the right lane “got over on [Hines],” and that, as a result, Hines’s vehicle had swerved into the median and onto the other side of the interstate. She stated that the majority of the truck was white but that she had noticed blue letters on the door of the truck. Dickson-Fikes testified that she saw only the left side of the truck and that she did not remember what was written on the truck. She stated that the driver of the truck was a white male with a short haircut. Dickson-Fikes testified that the truck that had swerved near Hines did not stay at the scene of the accident.

In support of its summary-judgment motion, Trinity also submitted an affidavit executed by Hines on July 21, 2009; Hines had submitted that affidavit to her insurer in support of her request for uninsured-motorist insurance benefits. Hines testified in her July 21, 2009, affidavit, in pertinent part:

“The party that put the events in motion regarding this accident was a phantom vehicle that forced me off the inside lane of the Interstate into the median where I lost control of by vehicle.... The vehicle that forced me off the highway was a rather large truck, similar to the ones you see Alabama Power use, which was white with blue writing on the side. That was all I was able to see prior to being forced off [the road] by it.”

Trinity also attached portions of the transcript of Hines’s December 1, 2010, deposition testimony to its summary-judgment motion. In her deposition, Hines testified that, after the accident, a white male, who, she said, was about “five foot to five foot, two inches tall,” had salt and pepper hair, and was wearing a navy-blue work uniform with a nametag, was speaking with someone in the crowd and that she had believed he was the driver of the white truck because of the things he was saying.

Hines also testified in her December 1, 2010, deposition that she could see the writing on the truck when it swerved near her and that the name “Trinity Contractors” was on the truck. She stated that the truck was white and that the lettering “was in like a round circle. The blue was there and the word ‘Trinity Contractors.’ ” She stated that the writing was on the driver’s side door and that the truck was “kind of like a utility truck.” She stated that there were toolboxes on the side of the truck with a hatch.

Hines also testified in her deposition that she had been talking about the accident with her daughter when she first mentioned that the truck was a Trinity truck and that she had immediately contacted her attorney at that time. She stated that her children had continued to ask her things so that she “could try to rehash and remember what [had] happened.” Hines testified during her December 1, 2010, deposition that it was one or two weeks after the June 1, 2009, accident when she had recalled that it was a Trinity truck that had forced her from the roadway.

Trinity also attached excerpts of the transcript of Eugene C. Jones’s deposition to its summary-judgment motion. Jones, the president of Trinity, testified in his deposition that Trinity’s trucks are white and that the lettering on the trucks is royal blue and light blue, with the “C” in “Contractors” overlaid on the “T” of Trinity. He testified that nine Trinity trucks would fall within Hines’s description of the truck that ran her off the road and that all nine were white with blue lettering on the door. Jones testified that, on the morning of the accident, the majority of Trinity’s workers were signed in at a service meeting at Trinity’s office. With regard to trucks assigned to a specific job site, Jones stated that Trinity typically has sign-in sheets that workers sign indicating the time they report to the sites. He testified that the keys to the trucks that are not assigned to a worker are kept in a lock box and that the unassigned trucks are kept in the yard at Trinity’s office. Jones stated that, on the day of the accident, two of the trucks that matched Hines’s description were located at Trinity’s job site at the north pavilion of the University of Alabama at Birmingham (“UAB”); he stated that one was being driven by Keith Jones and the other by Michael Bearden. He stated that there were no sign-in sheets for the UAB job site. He stated that the workers who drive utility trucks that are assigned to job sites are allowed to take the trucks home and to drive the trucks directly to the job site from their homes. He testified that those workers are not supposed to use the trucks for personal use. Eugene Jones stated that the workers have the option of wearing a Trinity t-shirt, but, he said, the t-shirts do not have name tags on them.

Trinity also attached the affidavit of Aimee Jones (“Aimee”), the Service Group Office Manger for Trinity. In her affidavit, Aimee stated that she was responsible for dispatching Trinity employees who are assigned company-owned vehicles from 6:00 a.m. to 7:80 a.m., Monday through Friday. According to Aimee, on the date of the accident, Trinity owned 81 company vehicles and only 9 of those vehicles “are remotely similar to the description of the subject ‘phantom vehicle’” described by Hines. She stated that the words “Trinity Contractors” appear in blue lettering on the side of those nine vehicles. Aimee stated that, on the morning of the accident, six of the nine vehicles were parked at the site of Trinity’s office, two were at Trinity’s job site at UAB, and one was located at a job site at Gardendale High School. According to Aimee, none of the nine vehicles had been in the vicinity of Interstate 59 near Fairfield at any point around the time of the accident at 7:15 a.m. Finally, Aimee stated in her affidavit that, on the date of the accident, Trinity did not have any employee whose appearance would have been even remotely similar to the driver of the vehicle as described by Hines in her deposition.

Trinity also submitted excerpts of the transcript of Marshall Kelly Cummings’s deposition testimony. Cummings, who was traveling in the southbound lane at the time of the accident, testified that he had seen Hines’s vehicle swerve but that he had not seen a phantom vehicle cause her to swerve. He stated that he “saw the whole thing happen” and that “there wasn’t a phantom vehicle there.”

Hines and Kelley filed oppositions to Trinity’s summary-judgment motion; Southern Haulers filed a motion' joining Hines’s and Kelley’s oppositions to the summary-judgment motion. Along with her opposition, Hines filed a September 11, 2012, affidavit in which she attempted to explain the discrepancy in her explanations regarding when she claims to have recalled the name “Trinity Contractors” on the side of the truck that she claims caused the accident. In her July 21, 2009, affidavit originally submitted to her insurance company, Hines testified that she could not recall the name of the company written on the side of the white truck that had caused her vehicle to travel into the median. In both her deposition and her September 11, 2012, affidavit, Hines stated that, following the accident, she could see the image and writing in her head but that she could not initially recall what the writing had said. In her December 1, 2010, deposition, Hines testified that she recalled the name “Trinity Contractors” approximately a week or two after the June 1, 2009, accident. Hines stated in her September 11, 2012, affidavit that, after discussing the accident with her family and replaying it in her head, she had recalled the name on the side of the truck as “Trinity Contractors.” In the September 11, 2012, affidavit, Hines stated that the conversation with her family that caused her to recall the Trinity logo on the side of the truck “occurred between a few weeks after the wreck to several months after the wreck.” In her September 11, 2012, affidavit, Hines did not address her deposition testimony that she had recalled the name “Trinity Contractors” within a week or two of the accident.

In its November 6, 2012, summary-judgment orders, the trial court made the following pertinent conclusions, among others:

“The Court heard oral arguments of the parties on September 14, 2012 and has reviewed the evidence and finds that Trinity has presented a prima facie case in that it had no vehicle nor employees within miles of the scene of the accident at the time that it occurred. The Court further finds that [Hines and Kelley] have failed to present substantial evidence that Trinity Contractors either owned the vehicle which has been described as a ‘phantom vehicle’ or employed the driver of the so called ‘phantom vehicle.’
“Thus, the Court finds that the summary judgment [motion] of Trinity Contractors is well taken as it relates to the identity of the ‘actor’ of the events causing a chain reaction beginning with the plaintiff, Shirley Hines. The Court specifically notes that it has not been called upon nor does it pass judgment as to the ‘actions’ of the parties (i.e., the Court is making no finding as to the existence of negligence, contributory negligence, proximate cause, sudden emergency or other such legal conclusion).
“The Court notes that Trinity’s summary judgment motion is based upon the testimony of the plaintiff Shirley Hines, the testimony of the plaintiff, Scotty Kelley, the testimony of [Marshall Kelly] Cummings, the driver for the plaintiff Southern Haulers, as well as testimony of the independent witness, Ms. Chari Dickson-Fikes. Despite the presence of all four individuals in the immediate vicinity of the accident, none of them identified the phantom vehicle as having the company insignia and/or logo of Trinity Contractors. Rather, at most, the only description of the vehicle gleaned from these witnesses is that it was a white, open bed truck, commonly referred to by the parties as a ‘utility’ truck.
“The only ‘evidence’ establishing an association of Trinity Contractors with the phantom vehicle is the deposition testimony of the Plaintiff, Shirley Hines, given some eighteen months after the accident. A complete reading of her deposition indicates that her recollection was equivocal, at best. Moreover, the Court would note that Ms. Hines presented a sworn affidavit to her automobile insurer in pursuit of a claim of uninsured motorist benefits in which she described the vehicle only as a phantom vehicle.
“Specifically, this original Affidavit dated July 21, 2009, states, in pertinent part, as follows:
“ ‘The party that put the events in motion regarding this accident, was a phantom vehicle that forced me off the inside lane of the interstate into the median where I lost control of by (sic) vehicle.
“ ‘The vehicle that forced me off the highway was a rather large truck, similar to the ones you see Alabama Power use, which was white with blue writing on the side. That was all I was able to see prior to being forced off by it.’
“(Exhibit ‘B’ to Trinity’s Motion for Summary Judgment) (Emphasis added). Somewhat in contrast to this Affidavit, Ms. Hines has submitted another Affidavit specifically to oppose this summary judgment, in which she states, in pertinent part, as follows:
“ ‘4. In July, 2009, by Affidavit, I stated that the truck that ran me off the road was a white truck with blue lettering, but at that time, I could not recall specifically the name of the company written on the side of the truck, even though I saw it on the day of the wreck.
“‘5. Unfortunately, at the time I signed the Affidavit, I could not recall the name on the truck.
“ ‘6. I could see the image in writing in my head, but I could not initially recall what the writing said.
“ ‘7. Even though I saw the lettering and the words on the side of the truck, I could not recall what the words said.
“ ‘8. The wreck was very traumatic and severe. As a result of that trauma, I could not at first recall the name on the truck.’
“(Affidavit of Shirley Hines dated September 11, 2012, filed as Exhibit 6 in Opposition to Trinity’s Motion for Summary Judgment). The Court notes that Ms. Hines’ Affidavit dated July 21, 2009, some seven weeks after the subject accident was submitted to her automobile insurer in support of her claim for uninsured motorist benefits. In any event, it is undisputed that the deposition testimony of Ms. Hines is the only ‘evidence’ linking Trinity Contractors to the phantom vehicle. Unrebutted by [Hines and Kelley] is [Trinity’s] evidence establishing the following:
“1. Trinity Contractors has but one location which is located in Truss-ville, Alabama, many miles north of the accident site;
“2. All but three of Trinity’s vehicles were at a safety meeting at Trinity’s location from 7:00 a.m. to 7:30 a.m. while the accident occurred at approximately 7:00 a.m. to 7:15 a.m.;
“3. There are no Trinity employees who live within the vicinity of the accident area such that they could be expected to be traveling in a Trinity vehicle towards work (although they would have been late for work as Trinity’s safety meeting began at 7:00 a.m.);
“4. Trinity had but four jobs ongoing at the time of the accident but none of these was located anywhere close to where the accident occurred;
“5. The three Trinity vehicles which were not present at Trinity’s location for its safety meeting on the morning of the accident were all located at the ‘North Pavilion Job’ on UAB’s campus in downtown Birmingham; and
“6. Color photos of the Trinity Contractors’ vehicles shows a variety of vehicles ranging from pick-up trucks to vans to utility trucks and all of these have the name Trinity Contractors prominently displayed on the sides and backs of the vehicles.
“Therefore, the totality of the evidence overwhelmingly indicates that the phantom vehicle was not a Trinity Contractors vehicle. The subsequent ‘memory’ of Shirley Hines would, at most, constitute only a scintilla of evidence but cannot reasonably be deemed to constitute substantial evidence for which this case should proceed to trial.”

Both Hines and Kelley argued on appeal that the tidal court erred in entering a summary judgment in favor of Trinity. Neither Hines nor Kelley asserts that the trial court erred in concluding that Trinity made a prima facie showing that none of its trucks were in the vicinity of the accident site on the morning of the accident. Rather, Hines and Kelley each argue that Hines’s testimony in her deposition created a genuine issue of material fact that a vehicle owned by Trinity was the “phantom vehicle” that caused the accident.

Trinity argues, however, that Hines and Kelley cannot create an issue of fact with Hines’s December 1, 2010, deposition testimony, because, Trinity argues, that testimony directly contradicts Hines’s earlier, July 21, 2009, affidavit testimony in which Hines stated that all she had seen was that the truck was large, white, and had blue writing. Trinity cites McGough v. G & A, Inc., 999 So.2d 898, 904 (Ala.Civ.App.2007), and Tittle v. Alabama Power Co., 570 So.2d 601, 604 (Ala.1990), among other cases, in support of its argument. In McGough, this court stated that “[t]he court may not consider deposition or affidavit testimony that directly contradicts earlier deposition or affidavit testimony without adequate explanation.” 999 So.2d at 904 (emphasis added). Likewise, in Tittle, the Alabama Supreme Court determined that when seemingly inconsistent testimony has been clarified or read in context to reveal its consistency, the later testimony is, in fact, admissible. 570 So.2d at 604-05. Our supreme court has explained:

“It is well settled that ‘ “a party is not allowed to directly contradict prior sworn testimony to avoid the entry of a summary judgment.” ’ Wilson v. Teng, 786 So.2d 485, 497 (Ala.2000) (quoting Continental Eagle Corp. v. Mokrzycki, 611 So.2d 313, 317 (Ala.1992)). The basis for this rule is to prevent the introduction of a sham affidavit into judicial proceedings. Tittle v. Alabama Power Co., 570 So.2d 601, 604 (Ala.1990). Thus,
“ ‘ “ ‘[w]hen a party has given clear answers to unambiguous questions which negate the existence of any genuine issue of material fact, that party cannot thereafter create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony.’ ” [Continental Eagle Corp. v. Mokrzycki, 611 So.2d 313, 317 (Ala.1992) ], quoting Robinson v. Hank Roberts, Inc., 514 So.2d 958, 961 (Ala.1987). However, when a party submits a subsequent affidavit merely to clarify his or her answers to ambiguous questions asked by counsel during a deposition or other prior sworn proceeding or to supply information not necessarily sought by questions asked at the deposition or other prior sworn proceeding, the trial court should consider the subsequent affidavit. See, e:g. Rickard v. Shoals Distrib., Inc., 645 So.2d 1378, 1382-83 (Ala.1994); and Tittle v. Alabama Power Co., 570 So.2d 601, 606-07 (Ala. 1990).’
“Wilson, 786 So.2d at 497.”

Prince v. Poole, 935 So.2d 431, 452 (Ala. 2006).

In Hines’s first, July 21, 2009, affidavit, she testified that blue writing on the side of a white truck of the type Alabama Power uses “was all [she] was able to see prior to being forced off [the road]” by what she also referred to in that affidavit as a “phantom vehicle.” In her December 1, 2010, deposition testimony, Hines testified that “I could see the writing” and that it said ‘“Trinity Contractors.”’ Later in that deposition, Hines stated that she first remembered the name on the side of the truck approximately a week or two after the accident, while she was speaking with her daughter.

In her September 11, 2012, affidavit, Hines again stated that, after discussions with her family, she recalled that the blue lettering on the white truck that she claims ran her off the road said “Trinity Contractors.” In that September 11, 2012, affidavit, Hines testified that the conversations with her family that caused her to recall the name “Trinity Contractors” on the truck “occurred between a few weeks after the wreck to several months after the wreck before I was able to recall the name on the truck.” Hines stated in her September 11, 2012, affidavit that she could not recall the name on the side of the truck at the time she executed her July 21, 2009, affidavit but that she had recalled the name on the truck by the time she filed her action on March 9, 2010, and by the time she testified in her December 1, 2010, deposition.

We conclude that Hines’s December 1, 2010, deposition testimony contradicted her earlier, July 21, 2009, affidavit testimony. In her July 21, 2009, affidavit, Hines stated that the vehicle that allegedly caused her to run off the road was a “phantom vehicle” and that she was able to discern only blue lettering on the door of the truck, which was white, before the accident occurred. It is undisputed that Hines submitted the July 21, 2009, affidavit to her insurer to recover benefits for damage or injury caused by an unknown, motorist. In her December 1, 2010, deposition, Hines stated that she could see the name “Trinity Contractors” on the side of the truck. Hines argues that her testimony in her December 1, 2010, deposition and in her September 11, 2012, affidavit clarified or explained her earlier, July 21, 2009, affidavit testimony that she could not recall the name on the side of the truck that allegedly forced her off the road. See Prince v. Poole, supra. We cannot agree that Hines and Kelley have demonstrated that Hines’s testimony in her deposition and in her September 11, 2012, affidavit clarified or explained her initial inability to recall more than seeing blue lettering on a white truck.

Further, in her December 1, 2010, deposition, Hines testified that she recalled the name “Trinity Contractors” on the side of the truck -within one to two weeks following the June 1, 2009, accident. Accordingly, Hines would have known at the time she executed the July 21, 2009, affidavit in support of her claim for uninsured-motorist insurance benefits the name on the side of the truck and, therefore, Trinity’s identity. Also, Hines’s September 11, 2012, affidavit states only that she recalled Trinity’s name on the truck sometime “between a few weeks after the wreck to several months after the wreck,” and she testified that she did not recall Trinity’s name on the side of the truck at the time she executed the July 21, 2009, affidavit. In her September 11, 2012, affidavit, Hines did not address or attempt to explain the inconsistencies in her statements regarding the timing of her recollection of Trinity’s name on the side of the truck. Accordingly, we conclude that Hines’s explanation of her recollection of Trinity’s name on the side of the truck was not sufficient to nullify the contradiction in her earlier testimony and that Hines failed to offer any explanation of the contradiction in her testimony pertaining to the timing of that recollection.

Trinity presented a prima facie case that none of its trucks were in the vicinity of the accident on June 1, 2009. Hines’s and Kelley’s evidence in opposition to that pri-ma facie case contradicted itself without adequate explanation. Accordingly, we agree with the trial court that Hines and Kelley failed to present substantial evidence to create a genuine issue of material fact such that a summary judgment in favor of Trinity was inappropriate.

We note that, in his brief on appeal, Kelley argues that, in reaching its summary judgment, the trial court impermissi-bly resolved issues pertaining to the parties’ credibility. See Dixon v. Board of Water & Sewer Comm’rs of City of Mobile, 865 So.2d 1161, 1166 n. 2 (Ala.2008) (“It goes without saying that ‘ “ ‘a court may not determine the credibility of witnesses on a motion for summary judgment.’ ” ’ Wilson v. Teng, 786 So.2d 485, 498 (Ala. 2000) (quoting Ex parte Usrey, 777 So.2d 66, 68 (Ala.2000), quoting in turn Phillips v. Wayne’s Pest Control Co., 623 So.2d 1099, 1102 (Ala.1993)).”). Specifically, Kelley contends that the trial court improperly determined that Hines’s deposition testimony that she recalled seeing the “Trinity Contractors” name on the side of the truck was not credible. However, as is explained above, Hines’s testimony in her deposition, which Kelley contends created a genuine issue of material fact, contradicted her earlier testimony without adequate explanation. Accordingly, we cannot agree that the trial court impermissibly weighed the parties’ credibility in entering its summary-judgment orders.

Both Hines and Kelley contend that the trial court erred in entering a summary judgment in favor of Trinity because, they maintain, Hines’s deposition testimony created a question of fact regarding whether a vehicle owned by Trinity caused Hines to swerve off the road. However, as is discussed above, the trial court properly disregarded that testimony because it contradicted, without adequate explanation, Hines’s earlier sworn testimony. Hines and Kelley did not submit any other, “substantial and admissible evidence” that could be said to create a genuine issue of material fact sufficient to defeat Trinity’s properly supported summary-judgment motion. McGough, 999 So.2d at 906. Accordingly, we affirm the November 6, 2012, summary judgments in favor of Trinity.

2120295 — APPLICATION GRANTED; OPINION OF AUGUST 9, 2013, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.

2120296 — APPLICATION GRANTED; OPINION OF AUGUST 9, 2013, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.

THOMPSON, P.J., and MOORE and DONALDSON, JJ., concur.

PITTMAN, J., concurs in the rationale in part and concurs in the result, with writing, which THOMAS, J., joins.

PITTMAN, Judge,

concurring in the rationale in part and concurring in the result.

As stated in the main opinion, when seemingly inconsistent testimony has been clarified or read in context to reveal its consistency, the later testimony is, in fact, admissible. See Tittle v. Alabama Power Co., 570 So.2d 601, 604-05 (Ala.1990). The statement in Shirley Hines’s first affidavit that “[t]he vehicle that forced [her] off the highway was a rather large truck, similar to the ones you see Alabama Power use, which was white with blue writing on the side,” was consistent with the testimony in her later deposition and her second affidavit regarding the description of the vehicle. The statement in Hines’s first affidavit that blue writing on the side of a white truck of the type Alabama Power uses “was all [she] was able to see before being forced off [the road] by [the white truck]” implies, although it does not expressly state, that she could not read what the blue writing on the side of the white truck said. That implication is inconsistent with her testimony in her later deposition and second affidavit. However, in both Hines’s later deposition testimony and her second affidavit, she explained that, although she did not recall what the blue writing said when she signed her first affidavit, after thinking further about what she had seen when the accident occurred, she was able to picture in her mind what words were written in blue on the side of the white truck and that what was written in blue was “Trinity Contractors.” Thus, in my opinion, Hines clarified the apparent discrepancy between the statement in her first affidavit that blue writing on the side of a white truck of the type Alabama Power uses “was all [she] was able to- see before being forced off [the road] by [the white truck]” and the testimony in her later deposition and her second affidavit indicating that what was written in blue writing on the side of the white truck was “Trinity Contractors.”

I agree with the main opinion, however, that Hines’s deposition statement regarding the timing of her recollection regarding the writing on the truck works to dispel her attempt at clarifying the discrepancy regarding the information she could recall in her first affidavit and the information she could recall in her deposition. Hines’s statement in her deposition that she had recalled the name on the truck within one to two weeks following the accident negates any explanation regarding her ability to recall the details of the accident by rehashing what had occurred with her children because, if that portion of her explanation were true, she would have known that information at the time she submitted her first affidavit. Because the veracity of Hines’s explanation regarding her recollection of the wording on the truck hinges on the timing of when she was able to recall that information, I agree that Hines failed to properly clarify the discrepancies in her testimony. Hines subsequently failed to explain the discrepancies in the timing of her recollection that she had offered in her deposition and in her second affidavit; thus, the inconsistent statements could not be admissible in accordance with Tittle. I agree, therefore, with the main opinion’s decision to affirm the trial court’s judgment on that basis.

THOMAS, J., concurs.

      . Trinity also submitted a statement signed by Dickson-Fikes that the parties referred to as an "affidavit,” although that statement was not sworn. Dickson-Fikes's signed statement is consistent with her sworn deposition testimony.

      . Trinity also presented evidence indicating that Keith Jones's home is in Trussville and that Bearden's home is in Moody, both of which are on the northeast side of Birmingham and northeast of the UAB job site to which they were assigned; the accident occurred southwest of the UAB job site, and, at the time of the accident, Hines’s vehicle and the white truck were traveling in the traffic lanes heading northeast.

      . The relevant portion of Hines’s December 1, 2010, deposition testimony is as follows:
      “Q. After the accident, who was the first person that you told that this white truck was a Trinity Contractors truck?
      "A. When I realized it was an accident, my — -that I don’t know. I think my daughter might have been the first person I told.
      “Q. Your daughter?
      "A. Yes.
      “Q. Which daughter?
      "A. My baby daughter, Brandy. We was [sic] talking about the accident and I think she may have been the first one ■ I mentioned it to and I called my attorney.

      "Q. ... Was there something that jogged your memory? Did you see a Trinity Contractors truck and think that looks like the truck that ran me off the road or did you see a commercial or was there something that specifically jogged your memory?
      “A. No, it was just — we had rehashed it. My kids kept going back — my kids kept going back and asking me things so that I could try to rehash and remember what happened.
      "Q. How long after the accident was that rehashing?
      “A. I don't exactly remember; maybe a week or two weeks. They would ask me all the time.”