author: BRYAN, Judge.

text:
    James Kevin TAYLOR v. Michelle TAYLOR.
    2110420.
    Court of Civil Appeals of Alabama.
    Nov. 30, 2012.
    Certiorari Denied Feb. 15, 2013 Alabama Supreme Court 1120299.

      Randall W. Nichols of Massey, Stotser & Nichols, PC, Birmingham, for appellant.
    Heath F. Trousdale, Florence, for appel-lee.
   BRYAN, Judge.

James Kevin Taylor (“the father”) appeals from a judgment of the Lauderdale Circuit Court (“the trial court”) that divorced him from Michelle Taylor (“the mother”) insofar as it awarded him separate visitation schedules for the parties’ two children and ordered him to pay one-half of the expenses related to the children’s extracurricular activities and one-half the cost of private-school tuition for the older child.

Procedural History

The mother filed a complaint for a divorce on December 18, 2009, alleging incompatibility of temperament and adultery as grounds for the divorce. The mother requested, among other things, custody of the parties’ two children — a boy born in June 1999 (“the son”) and a girl born in July 2009 (“the daughter”). On December 80, 2009, the trial court entered a preliminary order that required the mother and the father to “coordinate the payment of fixed monthly expenses” and that stated that “[t]he Court intends that both parties contribute to the payment of monthly expenses in the amounts and in the manner they did when they were cohabitating as husband and wife.” The father subsequently filed an answer to the mother’s complaint.

The record indicates that the trial court conducted an ore tenus proceeding over six days from October 2010 through August 2011. On November 15, 2011, the trial court entered a judgment divorcing the parties on the ground of incompatibility of temperament. The parties were awarded joint legal custody of the children, and the mother was awarded primary physical custody of the children. The father was awarded visitation with the son based on a 14-day rotating schedule wherein the father was awarded 6 days and 6 nights of visitation with the son. The mother’s custodial period with the son was the remaining 8 days and 8 nights of every 14-day period. The father was awarded visitation with the daughter as set forth in the “Standard Visitation Guidelines adopted by the Circuit Court of Lauderdale County.” Based on that schedule, in the same 14-day period, the father was awarded 2 days and 2 nights of visitation with the daughter, as well as one 4-hour midweek visit every other week. The divorce judgment and the standard visitation schedule specifically defined additional visitation times for the father on holidays and during the summer.

The trial court ordered the father to pay the mother $1,049 a month in child support for the children. Additionally, the mother and the father were ordered to “equally split any and all expenses for extracurricular activities of the minor children.... ” The trial court found that the mother had spent $1,027.95 for a band instrument for the son, and it ordered the father to reimburse the mother $514 for the instrument. The trial court also ordered the mother and the father to “equally split the tuition for the [son] at Shoals Christian School as long as the [son] remains enrolled there.” The trial court further found that, “pursuant to its preliminary order that the parties contribute to the payment of monthly expenses in the amount and in the manner they did when living as husband and wife, ... the [father] is ordered to reimburse the [mother] tuition expenses in the sum of $3,400....”

On December 9, 2011, the father filed a postjudgment motion pursuant to Rule 59, Ala. R. Civ. P. The father requested, among other things not pertinent to this appeal, that the trial court amend the divorce judgment to award him additional visitation with the daughter so that his visitation with the daughter would be conducted at the same time that he had visitation with the son. The father argued that he wanted to maximize his opportunities to have custody of the son and the daughter at the same time and to limit the amount of time and expense incurred to transport the children. The father also requested that the requirement that he pay one-half of extracurricular-activity expenses and private-school tuition be vacated in light of the fact that he was paying the recommended amount of child support pursuant to Rule 32, Ala. R. Jud. Admin. The father argued that those awards were not supported by the evidence and that the trial court had no authority to make those awards in addition to requiring him to pay the full amount of child support recommend by the child-support guidelines. The trial court denied the father’s motion on December 21, 2011, and the father filed a timely notice of appeal.

Issues

On appeal, the father raises two issues for this court’s review: (1) whether his visitation time with the children should have been scheduled so that he exercised visitation with the daughter during times that he had visitation with the son and (2) whether the trial court erred by ordering him to pay one-half of extracurricular-activity expenses and private-school tuition in addition to child support pursuant to the Rule 32 child-support guidelines.

Facts

The parties were married in June 1993, and they separated in August 2009. During the marriage, the parties lived in Florence, but, after the parties separated, the father moved in with his parents in Cherokee. It was undisputed that the father had three extramarital affairs during the parties marriage, but the mother testified that the father had admitted to having four extramarital affairs. The mother forgave the father for the first three affairs, although the father admitted to only two affairs at that time, and the parties lived together for several years after the mother learned of the affairs. The father began his last affair in February 2009 when the mother was pregnant with the daughter. It was undisputed that the mother found out about the affair only a few weeks before the daughter was born. The father alleged that he had ended the affair before the daughter was born and that he had not resumed the affair after the daughter was born despite the fact that the parties separated within a few weeks after the daughter’s birth. The woman that the father had had an affair with testified that the affair began in February 2009 and lasted approximately one year. She later testified that the father had ended the affair before the daughter was born in July 2009. The father’s mother testified that she was under the impression that the father was still seeing the woman he had had an affair with after he separated from the mother because the father occasionally went to the woman’s house and because the father had taken her to visit the woman around Christmas. Suffice it to say, the trial court could have disbelieved the father’s testimony that he had not resumed his relationship with the woman he had had an affair with after the daughter’s birth in July 2009.

After the parties separated in August 2009, the parties agreed to a visitation schedule that allowed the father to have custody of the children approximately 50% of the time. It was undisputed that the son enjoyed the visitation schedule that the parties utilized during the pendency of the proceedings below and that the son had continued to excel in school and in sports despite the fact that it took the father 35 to 45 minutes to get to the child’s school in Florence from his parents’ home in Cherokee. The mother agreed to continue the visitation schedule as it existed with the son, except that she requested that the son be returned to her on Sunday evenings by 5:30 so that he could attend church with her.

The record indicates that the father initially had the same visitation with the daughter as he had with the son, except that he did not keep the daughter overnight. When the daughter was one year old, the mother refused to continue that arrangement after the father returned the daughter to her custody after 10:00 p.m. on two nights in a row. Thereafter, the father exercised visitation with the daughter on one day each weekend with no overnight visit; that arrangement followed “standard” visitation guidelines for a child under the age of three in Lauderdale County. As of the date of the last hearing in August 2011, when the daughter was just over two years old, the father had kept the daughter overnight on only one occasion when the mother was sick. During the ore tenus hearing, the father requested the same custodial time with the daughter that he had with the son. The mother testified that she did not know if the father was capable of caring for the daughter overnight and that, on one occasion, he had returned the daughter to her custody with the daughter’s diaper on sideways. Numerous witnesses appeared on behalf of the father to attest to his parenting skills and his ability to care for the daughter. The father admitted that the mother was a good mother and that she had encouraged his relationship with the children.

The record indicates that the father is employed as the director of respiratory care, the sleep disorder center, the c-pap care center, and the neuro-EE G lab at Cullman Regional Medical Center. The record indicated that the father earned approximately $5,868 a month in gross pay and that his net income each month was approximately $4,100 after deductions were made for state and federal taxes, health and dental insurance, life insurance, retirement, and donations to a benevolent fund, among other things. In February 2011, the father testified that his monthly expenses totaled $4,040 a month, which included, among other things: $1,100 a month in child support; $150 a month for his and the son’s cellular telephone; $120 a month for marital credit-card debt; $700 a month for gasoline; $110 a month for automobile and boat insurance; $200 a month to his mother for his vehicle, when he could; $900 a month for food for himself, his mother, and the son; $75 a month for lunches and snacks for the son; $100 a month for dental work; $100 a month for credit-card debt incurred after the parties separated; and $75 a month for gifts for the children. The father included sums that he paid his mother for utility bills and lawn maintenance, but he admitted that, like the payment to his mother for his vehicle, he did not always pay his mother those sums. He stated that his mother does not ask him for money and that there was no threat of her making him move out of her home.

At the time of the hearing in August 2011, the father’s mother testified that she and the father had a new arrangement pursuant to which the father paid her $800 a month and that, from that money, $300 went to repay her for the purchase of his vehicle and its repairs and that the remaining $500 went to the father’s living expenses, such as utility bills and groceries. She stated that the father had initially paid her whatever he could but that the new arrangement was $800 every month and she paid all the bills. She stated that the father still bought some groceries for the household and that he had made a onetime payment of $700 to purchase a year’s worth of natural gas for her home. However, it was unclear whether the father paid for the natural gas before he began the new financial arrangement with his mother.

The mother worked at a doctor’s office earning approximately $42,000 a year, and the record indicates that her net income equaled approximately $2,750 a month. According to the mother, her expenses totaled approximately $4,100 a month, which included $315 a month for child care for the daughter, which was included in the calculation of child support, as well as $455 a month for the son’s private-school tuition. The mother stated that she had been paying all the household bills since the parties separated and that she had occasionally been more than one month late paying the mortgage on the marital residence, which she was made responsible for in the divorce judgment.

The record indicates that the son had attended the same private school from kindergarten through his sixth-grade year. When the parties first separated, the cost of attendance was approximately $433 a month for 11 months out of the year. At the time of the final hearing, the cost of attendance had increased to $455 a month for 11 months. It was undisputed that the mother had paid the tuition cost for the son’s attendance since the parties’ separation. The father testified that he wanted the son to continue to attend the same private school, but he claimed that he could not afford to contribute to his tuition. The mother stated that she planned to send the son to the same private school whether the father contributed toward the costs or not. She testified that the son loved his school, that his classmates were like his family, and that he was very involved in extracurricular activities at the school.

It was undisputed that the son was an exceptional athlete, that he had played numerous sports throughout his childhood, and that he had participated in other extracurricular activities such as Cub Scouts and band. The mother submitted documentation indicating that she had purchased a trombone for the child and that the balance of the cost of purchasing that instrument after her down payment was $1,027.95. The mother also presented evidence indicating that, in the year 2010, she had paid extracurricular expenses for the son in the amount of $434 for things like registration fees for sports teams, sporting equipment, cub-scout camp, and sports camp. The father repeatedly testified about his involvement in the son’s extracurricular activities and the son’s athletic abilities, yet he claimed that he could not afford to assist the mother in financing the cost of the son’s extracurricular activities.

Standard of Review

“When ore tenus evidence is presented, a presumption of correctness exists as to the trial court’s findings on issues of fact; its judgment based on these findings of fact will not be disturbed unless it is clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. J & M Bail Bonding Co. v. Hayes, 748 So.2d 198 (Ala.1999); Gaston v. Ames, 514 So.2d 877 (Ala.1987). When the trial court in a nonjury case enters a judgment without making specific findings of fact, the appellate court ‘will assume that the trial judge made those findings necessary to support the judgment.’ Transamerica Commercial Fin. Corp. v. AmSouth Bank, 608 So.2d 375, 378 (Ala.1992). Moreover, ‘[u]nder the ore tenus rule, the trial court’s judgment and all implicit findings necessary to support it carry a presumption of correctness.’ Transamerica, 608 So.2d at 378. However, when the trial court improperly applies the law to facts, no presumption of correctness exists as to the trial court’s judgment. Allstate Ins. Co. v. Skelton, 675 So.2d 377 (Ala.1996); Marvin's, Inc. v. Robertson, 608 So.2d 391 (Ala.1992); Gaston, 514 So.2d at 878; Smith v. Style Advertising, Inc., 470 So.2d 1194 (Ala.1985); League v. McDonald, 355 So.2d 695 (Ala.1978).”

City of Prattville v. Post, 831 So.2d 622, 627-28 (Ala.Civ.App.2002).

Discussion

On appeal, the father first argues that the trial court erred by fashioning his visitation award with the children in such a manner that his visitation with the daughter does not coincide with his visitation with the son. He contends that the trial court exceeded its discretion in setting the visitation schedules for the children because there is no coordination between his visitation with the daughter and his visitation with the son and that such a lack of coordination is not in the best interests of the children because it keeps the son and the daughter separated for long periods. He also argues that the trial court erroneously limited his visitation with the daughter despite the fact that there was no evidence indicating that he was unable to care for the daughter in the same manner that he was able to care for the son.

“The trial court is in the best position to determine the credibility of the witnesses, to assign weight to their testimony, and to assess what is in the best interest of the child. ‘The determination of proper visitation ... is within the sound discretion of the trial court, and that court’s determination should not be reversed by an appellate court absent a showing of an abuse of discretion.’ Ex parte Bland, 796 So.2d [340,] 343 [ (Ala.2000) ]. ‘The primary consideration in setting visitation rights is the best interest of the child. Each child visitation case must be decided on its own facts and circumstances.’ DuBois v. DuBois, 714 So.2d 308, 309 (Ala.Civ.App.1998) (citation omitted).”

Williams v. Williams, 905 So.2d 820, 830 (Ala.Civ.App.2004).

Our review of the terms of the final judgment indicates that the father has weekend visitation with the daughter every time that he has a weekend visitation with the son. The only difference in the visitation schedules for the son and the daughter is that the father has an additional 4 days and 4 nights with the son in each 14-day period; during the first 7-day period, the father has visitation with the son on Monday morning through Wednesday morning, and, during the second 7-day period, the father has visitation with the son on Wednesday evening through Friday evening. During the first seven-day period, the father has visitation with the daughter each Tuesday evening for four hours while he has visitation with the son. Although we agree with the father that there is no evidence indicating that he is incapable of caring for the daughter during the periods that he has custody of the son, we note that the trial court’s decision was required to be based upon the best interest of the daughter. Williams, supra. The trial court could have considered the daughter’s age and concluded that the extended visitation schedule that served the best interests of the 12-year-old son would not serve the best interests of the 2-year-old daughter.

Furthermore, we are not convinced by the father’s argument that this situation is akin to an award of “split custody” — where one parent is awarded custody of one child and the other parent is awarded custody of the other child. Each week, the children will be apart for only two days and two nights; however, even during those times apart, the children "will see each other every other week for one four-hour time period in the evening. For this court to do anything other than affirm the regular visitation schedule set forth by the trial court would be to substitute our judgment for that of the trial court, which we are not permitted to do. See Stone v. Stone, 26 So.3d 1232, 1235-86 (Ala.Civ.App.2009) (“This court is not permitted to reweigh the evidence on appeal and substitute its judgment for that of the trial court.”); and K.D.H. v. T.L.H., 3 So.3d 894, 899 (Ala.Civ.App.2008) (quoting Alonzo v. Alonzo, 628 So.2d 749, 750 (Ala.Civ.App.1993)) (‘“Our standard of review is not what we might have done had we been the trial judge, but whether we find from the evidence that the trial judge was so in error as to constitute an abuse of his discretion.’ ”).

However, regarding the father’s holiday visitation with the daughter and the son, we must conclude that the trial court exceeded its discretion by failing to craft a visitation schedule that allowed the father to have simultaneous visitation with the daughter and the son during the holidays. For example, on Easter Sunday, in odd years only, the father has visitation with the daughter from 8:00 a.m. until 6:00 p.m., but, whether it is an even year or an odd year, the father has visitation with the son from 3:00 p.m. to 8:00 p.m. Similar examples of uncoordinated visitation times could be given during other holidays such as Labor Day, Memorial Day, and Thanksgiving. Because there is no evidence in the record that would support a conclusion that the best interests of the children would be served by the uncoordinated holiday visitation schedules, we reverse the trial court’s judgment insofar as it awarded the father holiday visitation with the children, and we remand the cause with instructions to the trial court to craft a visitation schedule that allows the children to be together with the father during his periods of holiday visitation.

Next, the father argues that the trial court erred by requiring him to pay one-half of the children’s extracurricular-activity expenses and one-half of the son’s private-school tuition in addition to paying the full amount of child support recommended by the child-support guidelines. See Caswell v. Caswell, 101 So.3d 769, 775 (Ala.Civ.App.2012) (citing Deas v. Deas, 747 So.2d 332, 337 (Ala.Civ.App.1999)) (holding that private-school tuition and extracurricular-activity expenses are not part of basic child support contemplated by the Rule 32 child-support guidelines). See also A.B. v. J.B., 40 So.3d 723, 733 (Ala.Civ.App.2009). It is well settled that “matters of child support are within the sound discretion of the trial court and will not be disturbed absent evidence of an abuse of discretion or evidence that the judgment is plainly or palpably wrong.” Spencer v. Spencer, 812 So.2d 1284, 1286 (Ala.Civ.App.2001).

In support of his argument, the father cites A.B. v. J.B., supra, wherein this court reversed a judgment that required the former wife, the noncustodial parent, to pay one-half of the costs of extracurricular activities for the child. 40 So.3d at 733. In that case, we held:

“Rule 32(A), Ala. R. Jud. Admin., provides that
“‘[t]here shall be a rebuttable presumption, in any judicial or administrative proceeding for the establishment or modification of child support, that the amount of the award that would result from the application of these guidelines is the correct amount of child support to be awarded. A written finding on the record indicating that the application of the guidelines would be unjust or inappropriate shall be sufficient to rebut the presumption if the finding is based upon:
“ ‘(i) A fair, written agreement between the parties establishing a different amount and stating the reasons therefor; or
“ ‘(ii) A determination by the court, based upon evidence presented in court and stating the reasons therefor, that application of the guidelines would be manifestly unjust or inequitable.’
“Thus, although the amount of child support established by the guidelines creates a presumption as to the correct amount of child support to be awarded, that presumption is rebuttable, and, under certain circumstances, a trial court has the discretion to award child support outside the guidelines.
“Additionally, Rule 32(C)(4), Ala. R. Jud. Admin., provides:
“ ‘In addition to the recommended child-support order, the court may make additional awards for extraordinary medical, dental, and educational expenses if (i) the parties have in writing agreed to these awards or (ii) the court, upon reviewing the evidence, determines that these awards are in the best interest of the children and states its reasons for making these additional awards.’
“In this case, however, no evidence was presented to rebut the presumption created by the guidelines, and the trial court’s final judgment failed to indicate that application of the guidelines would be manifestly unjust or inequitable. The final judgment also failed to include the language necessary to support an award under Rule 32(C)(4). Therefore, requiring the [former] wife to pay one-half of [the child]’s extracurricular expenses is unsupported by the record and was error.”

40 So.3d at 733.

To the extent that the father is arguing that the additional child-support awards should be reversed because the trial court failed to include the specific findings required by Rule 32(A)(ii) and Rule 32(C)(4); Ala. R. Jud. Admin., in the divorce judgment, the father is making that argument for the first time on appeal, and, therefore, we cannot consider it. Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992) (“[An appellate c]ourt cannot consider arguments raised for the first time on appeal. ...”). However, we will consider the father’s argument that the additional child-support awards were not supported by the evidence. Our review of the record reveals that evidence was presented to rebut the presumption created by the guidelines and that would support a finding that the additional awards are in the best interest of the children.

It was undisputed that the mother and the father desired that the son remain enrolled at his private school, that the son loved the school, that he was very involved in the school, that he had attended that school for seven years, and that he excelled in that school. Likewise, regarding the son’s extracurricular activities, it was undisputed that the son was an excellent athlete and that both parties had encouraged his participation in numerous extracurricular activities. However, a consideration of whether an additional award of child support serves the best interest of a child must also take into account each party’s ability to contribute an additional amount of child support above what the child-support guidelines recommend. See Travis v. Travis, 345 So.2d 321, 323 (Ala.Civ.App.1977) (“It will not serve the interest of the children to order payment of child support or private school tuition in an amount which the evidence clearly indicates is beyond the ability of appellant to pay.”). This court has held that a trial court “may not order support payments that compel a party to sacrifice all of his income, leaving little or none to support himself.” Harris v. Harris, 590 So.2d 321, 323 (Ala.Civ.App.1991).

The father argues that the mother did not demonstrate a need for additional child support because the son’s tuition expense and expenses related to his extracurricular activities were included in her monthly expenses, and, he argues, the evidence presented indicates that the mother can meet her monthly expenses with the award of child support pursuant to the guidelines in addition to her monthly net income. There was evidence presented, however, that would have supported a conclusion that the mother could not meet her monthly expenses, even considering the award of child support. Although it was undisputed that, while the proceedings were pending below, the mother had paid all the son’s tuition expenses and the vast majority of his extracurricular-activity expenses without assistance from the father, it was also undisputed that the mother was frequently behind on the monthly mortgage payment. Furthermore, the record indicates that the father had been paying the mother an additional $51 over his child-support obligation during the year before the divorce judgment was entered that he is no longer required to pay. Finally, even if the mother is somehow able to pay the tuition and extracurricular-activity expenses without assistance from the father, the trial court could have concluded, in light of the evidence of the parties’ joint decisions to send the son to private school and to have the son involved in numerous extracurricular activities, that the mother should not be required to bear the entire burden of these additional expenses without the father’s assistance if the father has the ability to contribute to the additional expenses.

Furthermore, the trial court could have concluded that the father has sufficient income to support an award of additional child support. In the divorce judgment, the trial court ordered the father to pay one-half of the “tuition for the [son] at Shoals Christian School as long as the [son] remains enrolled there.” The evidence presented indicated that the cost of tuition to the father would equal one-half of $455 a month for 11 months, or approximately $2,500 a year, or approximately $208 a month for 12 months. In addition, the father was ordered to pay one-half of “all expenses for extracurricular activities of the ... children, including, but not limited to sports, band, and scouts.” The mother presented evidence indicating that she had paid approximately $434 in the year 2010, or approximately $36 a month, related to extracurricular-activity expenses for the son and that she had purchased a trombone for the child so that he could participate in band. The total purchase price for the trombone under the “rent-to-own” agreement entered into by the mother was $1,027.95 after the mother paid a down payment. The father was ordered to pay one-half of the cost of the trombone, or $514, which is equivalent to approximately $43 a month. Considering these costs together, the father’s extracurricular-activity expenses would equal approximately $61 a month ($18 a month + $43 a month). Considering the tuition expense and the extracurricular-activity expenses together, we estimate that the father’s responsibility in addition to the amount of child support pursuant to the guidelines would be approximately $270 a month.

The father argues, as he did below, that he cannot afford to pay any additional sums for the support of the children. Based on the judgment entered by the trial court, it is apparent that the trial court did not believe that the father was unable to contribute to the son’s private-school tuition and the extracurricular-activity expenses of the children. In light of the testimony concerning the ending date of the father’s most recent affair, we find no error in the trial court’s disbelief of the father’s assertion that he could not afford to contribute any additional child support. See Summers v. Summers, 58 So.3d 184, 188 (Ala.Civ.App.2010) (“It is the province of the trial courts to estimate the credibility of witnesses, and if the trial court concludes that a witness was willfully untruthful, that court may disregard any or all of that witnesses’s testimony.”).

The father contends that, based on the evidence presented at the ore tenus hearing, the difference between his net income and his expenses equals only $110 a month. The father’s list of monthly expenses allotted $900 a month for food and an additional $75 a month for lunches and snacks for the son during the son’s periods of visitation with the father. Although the father indicated that he purchased groceries for his mother in return for her allowing him to stay in her home, the father’s mother testified that she used $500 of the $800 a month that the father gave her to cover his living expenses, such as groceries and household bills. However, the father did not include an $800 monthly payment to his mother in his list of monthly expenses. Thus, it is not clear what the father’s actual monthly obligations are. If we take the father’s list of expenses, add an $800-a-month payment to his mother for groceries, living expenses, his car payment, and his car repairs, add $270 a month for tuition and extracurricular-activity expenses, and take out the $900-a-month cost for additional food, the cost of utility bills at his mother’s residence, and his vehicle payment and repairs, then the father is left with $241 a month for additional food or groceries for himself in addition to the groceries purchased with part of the $500 he gives to his mother. We note that the father included in his list of monthly expenses $75 a month for gifts for the children, $50 a month for household supplies, $100 a month for clothing, and $110 a month for insurance to cover two vehicles and a boat, despite the fact that one vehicle and the boat were inoperable at the time of the ore tenus hearings. Thus, the trial court could have concluded that the father had the ability to pay the additional child support.

The father also challenges the trial court’s judgment insofar as it ordered him to repay the mother for a portion of the son’s trombone and the son’s tuition expense that the mother had paid during the pendency of the action. The father bases his argument on the fact that he paid the mother $1,500 a month from August 2009 through August 2010, i.e., $451 above his child-support obligation, and that he paid the mother $1,100 a month from September 2010 through the entry of the divorce judgment, i.e., $51 above his child-support obligation. We note, however, that the trial court’s preliminary order required the parties to “pay child support in accordance with Rule 32” and to continue to “contribute to the payment of monthly expenses in the amounts and in the manner they did when they were cohabitating as husband and wife.” It was undisputed that the only contribution to household expenses that the father made above his Rule 32 child-support obligation is $451 a month for 1 year, and $51 a month for 1 year. Thus, the trial court could have concluded that those amounts were not additional amounts for child support, but only contributions to the household expenses that he was required to pay by its preliminary order. Regardless, our review of the record reveals that the father did not make the same argument below that he makes on appeal. See Andrews, supra. The only part of his postjudgment motion that could be construed as a challenge to the retroactive payment of tuition and extracurricular-activity expenses are the general allegations that the awards of additional child support are unsupported by the evidence, which have been addressed above. Thus, we find no merit to this argument.

Accordingly, we reverse the trial court’s judgment insofar as it failed to craft a holiday visitation schedule that served the best interests of the children, and we remand the cause for further proceedings consistent with this opinion. In all other respects, the judgment is affirmed.

Appellant’s request for an attorney fee on appeal is denied.

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

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

THOMAS, J., recuses herself.

      . Lauderdale County has different "standard” visitation schedules for children under three years of age and for children over three years of age. The daughter was two years old when the divorce judgment was entered, but while this case was pending on appeal, the daughter turned three years old. Thus, we will consider the father’s visitation schedule with the daughter based on the standard visitation schedule for children over the age of three.

      . The father was awarded visitation with the daughter every other weekend and visitation from 4:00 p.m. until 8:00 p.m. every other Tuesday.

      . That is not to say, however, that the father could not request a modification of his visitation with the daughter in the near future when the daughter is older and has had the chance to adjust to life in two different homes.

      . The father argues that the trial court should have ordered him to pay one-half of $857.15, which was the purchase price for the trombone. Apparently, a "rental charge” was added to the purchase price to make the balance due $1,027.95. However, the father did not make this argument to the trial court; therefore we cannot consider it on appeal. See Andrews v. Merritt Oil, supra.

      . We note, however, that, once the trombone is paid for, the father’s cost would be significantly reduced.

      .During the ore tenus hearing, the father stated that his net income totaled $4,100 a month and that his expenses totaled $4,040 a month, a difference of only $60 a month. However, we note that the father's child-support obligation is only $1,049 a month instead of the $1,100 amount that he had included into his monthly budget; accordingly, the difference between the father’s income and his expenses is now approximately $110 a month.

      . According to the father’s list of expenses, he paid his mother only $50 a month for utility bills; thus, the trial court could have concluded that a significant amount of the $500 that he gave to his mother went toward the purchase of groceries.

      . For purposes of comparison, the mother allotted only $600 a month for groceries, diapers, and clothing in her list of monthly expenses for herself and the children.


source: Caselaw Access Project

author: THOMAS, Judge.

license: Public Domain

text:
    Shonika MCCRELESS v. Steven VALENTIN.
    2110363.
    Court of Civil Appeals of Alabama.
    Nov. 30, 2012.
    Rehearing Denied Feb. 8, 2013.

      Sharon Doviet, Huntsville, for appellant.
    Fulton S. Hamilton, Huntsville, for ap-pellee.
   THOMAS, Judge.

Shonika McCreless and Steven Valentin were married on July 5,1997; there is one child of the marriage. The Morgan Circuit Court entered a judgment divorcing the parties on July 28, 2005 (“the divorce judgment”). According to the parties’ appellate briefs, the parties’ written settlement agreement regarding the division of the marital assets and debts and child custody and support was incorporated into the divorce judgment. The divorce judgment did not include a specific award of spousal support to either party.

Valentin was required to pay McCreless’s student loan in the amount of $300 per month. The $300-a-month student-loan award was within a seven item list in a paragraph with the following header: “[Valentin] shall be solely responsible for and [McCreless] shall be held harmless on the following debts.” McCreless was required to pay any amount over $300-a-month on her student loan in a paragraph with the following header: .“[McCreless] shall be solely responsible for and [Valentin] shall be held harmless on the following debts.” The parties did not appeal the divorce judgment.

The divorce judgment was modified three times before the September 27, 2011, modification (“the 2011 modification”) that is the subject of this appeal. On September 22, 2006, the circuit court modified the divorce judgment (“the 2006 modification”) and included the statement that Valentin’s “[c]ourt ordered spousal support in the sum of $300 per month is not modified.” The divorce judgment had referred to a judgment amount of $300 per month twice. Valentin was ordered to pay $300 per month toward McCreless’s automobile lease until April 2008 as well as the $300-a-month student-loan award; neither award was referred to as an award of spousal support in the divorce judgment. The parties did not appeal the 2006 modification. McCreless remarried in February 2007.

The divorce judgment was again modified on February 17, 2009 (“the 2009 modification”), and in the 2009 modification the circuit court specifically noted that Valentin’s obligation to pay the $300-a-month student-loan award was not subject to a modification because the award was a “property settlement and not periodic alimony.” The parties did not appeal the 2009 modification. The divorce judgment was modified for a third time on May 17, 2010, but that modification is not relevant to the issues on appeal.

At some point in 2011 McCreless filed a fourth petition for modification. Valentin answered the petition and filed a cross-claim on July 1, 2011, in which he alleged, among other things, that McCreless had borrowed additional money on her student-loan account after the divorce judgment had been entered. A trial was set for August 28, 2011. On that date, no testimony was taken; the parties offered stipulations of fact and documentary evidence to the circuit court on the two issues upon which they had not reached an agreement — the amount of monthly child support owed by Valentin and whether Valentin remained obligated to pay the $300-a-month student-loan award.

The 2011 modification, among other things, modified Valentin’s child-support obligation because it determined that McCreless was “capable of earning $3,333 per month,” although she had asserted that she earned only $774 per month. It also found that Valentin’s obligation to pay the $300-a-month student-loan award had “automatically terminated” when McCreless remarried in February 2007; therefore, the trial court stated that the 2009 modification that had “reclassified” the $300-a-month student-loan award as a property settlement was “of no force and effect.”

On October 26, 2011, McCreless filed a motion to alter, amend, or vacate the circuit court’s judgment, asserting that the circuit court had erred in its determination that the $300-a-month student-loan award was an award of periodic alimony. The exact words in her postjudgment motion were: “The Order declares an obligation set out in the original divorce to be periodic alimony instead of a property settlement. [McCreless] avers this payment should correctly be called a property settlement and would request a hearing on this matter.” She argued that Valentin had not appealed the 2009 modification that had determined that the $300-a-month student-loan award was a property settlement and that the $300-a-month student-loan award meets the requirements of a property settlement. She further contended that the circuit court had failed to calculate the arrearage that, she says, Valentin owed to her because of his failure to make some of the payments on the student loan between the time of the divorce and her remarriage. Finally, she contended that the circuit court had erred by imputing income to her and in its calculation of Valentin’s child-support obligation. She requested an amendment of the entire judgment “either upon this motion or after setting this matter for a hearing.” Her motion was denied without a hearing on October 28, 2011.

McCreless timely appealed to this court on December 7, 2011. On appeal she contends that the circuit court erred in its refusal to grant a hearing on her post-judgment motion regarding the calculation of the child-support award and the termination of Valentin’s obligation to pay the $300-a-month student-loan award.

“At the outset, we note that the usual presumptions of correctness applied to the trial court’s findings in ore terms cases are not applicable here. Hacker v. Carlisle, 388 So.2d 947, 950 (Ala.1980). We review the evidence presented in the record before us without any presumption of correctness, due to the trial judge’s having taken no oral testimony. Ingram v. Pollock, 557 So.2d 1199 (Ala.1989); Bownes v. Winston County, 481 So.2d 362, 364 (Ala.1985) (‘[wjhere the evidence is stipulated, and no testimony is presented orally before the trial court, this Court will review without any presumption in favor of the trial court’s findings and sit in judgment on the evidence’); Ex parte British Steel Corp., 426 So.2d 409, 414 (Ala.1982); Hacker v. Carlisle, supra (‘This case was tried without a jury on stipulations and briefs of the parties and primarily documentary evidence. No testimony of any witness was admitted into evidence on any material matter. In such a situation, the appellate court sits in judgment on the evidence’) (emphasis original); see also Perdue v. Roberts, 294 Ala. 194, 314 So.2d 280 (1975); McCulloch v. Roberts, 292 Ala. 451, 454, 296 So.2d 163 (1974) (‘[t]his is in effect the negative expression of the ore tenus rule’); Sheehan v. Liberty Mutual Fire Ins. Co., 288 Ala. 137, 258 So.2d 719 (1972); Kennedy v. State Dept. of Pensions & Security, 277 Ala. 5, 166 So.2d 736 (1964); Adams v. Logan, 260 Ala. 346, 70 So.2d 786 (1954); Redwine v. Jackson, 254 Ala. 564, 569, 49 So.2d 115 (1950); 5 Am. Jur. 2d Appeal and Error, § 825 at 267 (1962). Thus, we must review the evidence in this case without any presumption in favor of the trial court’s ruling.”

Phillips v. Knight, 559 So.2d 564, 567 (Ala.1990).

McCreless filed a timely post-judgment motion in which she made a specific request for a hearing on the issue whether the $300-a-month student-loan award was periodic alimony or a property settlement and a general request for a hearing on all issues raised in her post-judgment motion, which included her contentions that the circuit court had erred by imputing income to her and in calculating the child-support award. She argues that Rule 59(g), Ala. R. Civ. P., required the circuit court to hold a hearing to allow her an opportunity to be heard before it could rule on her postjudgment motion.

“Rule 59(g) provides that posttrial motions ‘remain pending until ruled upon by the court (subject to the provisions of Rule 59.1), but shall not be ruled upon until the parties have had opportunity to be heard thereon.’ The failure to hold a hearing on a posttrial motion is not always reversible error, however. Our supreme court has stated:
“ ‘ “[I]f a party requests a hearing on its motion for a new trial, the court must grant the request.” Ex parte Evans, 875 So.2d 297, 299-300 (Ala.2003) (citing Rule 59(g), Ala. R. Civ. P., and Walls v. Bank of Prattville, 554 So.2d 381, 382 (Ala.1989)). Although it is error for the trial court not to grant such a hearing, this error is not necessarily reversible error. “This Court has established, however, that the denial of a post-judgment motion without a hearing thereon is harmless error, where (1) there is ... no probable merit in the grounds asserted in the motion, or (2) the appellate court resolves the issues presented therein, as a matter of law, adversely to the movant, by application of the same objective standard of review as that applied in the trial court.” Historic Blakely Auth. v. Williams, 675 So.2d 350, 352 (Ala.1995) (citing Greene v. Thompson, 554 So.2d 376 (Ala.1989)).’
“Chism v. Jefferson County, 954 So.2d 1058, 1086 (Ala.2006).”

Cunningham v. Edwards, 25 So.3d 475, 477 (Ala.Civ.App.2009). We agree with McCreless that the denial of her post-judgment motion without a hearing was error. The question becomes whether the error is reversible error. Therefore, we must determine whether there exists probable merit to McCreless’s arguments or whether this court can resolve the issues adversely to McCreless as a matter of law.

McCreless argues that “nothing introduced into evidence would justify [imputation of income] as though [McCreless] was intentionally underemployed.” The circuit court had before it the following conflicting documentary evidence: (1) McCreless’s signed income affidavit in which she claimed to earn a monthly gross income of $774, (2) Madison City Schools’ personnel-file documents indicating that McCreless was a part-time special-education teacher earning an annual salary of $23,813 in 2007 and $24,765.50 in 2008 and a full-time employee earning an annual salary of $50,023 in 2009, (3) McCreless’s 2010 federal tax return, which lists her income as $36,988, (4) McCreless’s 2010 state tax return that shows her employers as Madison City Board, Huntsville City Schools, and Madison County Board, with a combined annual income of $38,656, and (5) McCreless’s payroll records for the period of March 1, 2011, through May 31, 2011, indicating that McCreless had earned a monthly gross income varying between $1,620 and $740 in that period.

“Under Rule 32(B)(5), Ala. R. Jud. Admin., a trial court must impute income to a parent and calculate his or her child-support obligation based upon that parent’s potential income if ‘the court finds that [the] parent is voluntarily unemployed or underemployed.’ ” Mitchell v. Mitchell, 723 So.2d 1267, 1269 (Ala.Civ.App.1998). Rule 32(B)(5), Ala. R. Jud. Admin., states, in pertinent part:

“In determining the amount of income to be imputed to a parent who is unemployed or underemployed, the court should determine the employment potential and probable earning level of that parent, based on that parent’s recent work history, education, and occupational qualifications, and on the prevailing job opportunities and earning levels in the community.”

In Winfrey v. Winfrey, 602 So.2d 904, 905 (Ala.Civ.App.1992), we explained:

“The key word here is ‘voluntarily.’ The trial court must initially determine that the spouse is ‘voluntarily’ unemployed or underemployed before it may impute income to that spouse. The determination is to be made from the facts presented according to the judicial discretion of the trial court. Doyle v. Doyle, 579 So.2d 651 (Ala.Civ.App.1991).”

The 2011 modification included the following finding:

“The court has carefully reviewed the evidence submitted at trial and orders as follows:
“1. The court finds [McCreless’s] gross monthly income to be $3,333.00[,] which represents an average of the yearly incomes earned by [McCreless] for two previous years. Notwithstanding [McCreless’s] assertion that she is only earning $774.00 per month, she is capable of earning $3,333.00 given her education and employment history.”

Our de novo review of the record on appeal reveals conflicting evidence that cannot support an imputation of income to McCreless. As a threshold matter, the record does not include evidence indicating that McCreless was voluntarily underemployed. Furthermore, although there is some conflicting evidence regarding her probable earning level based on her recent work history, there is no evidence as to her employment potential, her education, her occupational qualifications, or the prevailing job opportunities and earning levels in her community. See Winfrey, 602 So.2d at 905.

We determine that the circuit court’s failure to grant a hearing on McCreless’s postjudgment motion regarding the imputation of income to her due to voluntary underemployment was not harmless error. See Kitchens v. Maye, 623 So.2d 1082, 1089 (Ala.1993)(holding that a trial court’s denial of a motion for a new trial, thus denying the movant the opportunity to present evidence, was not harmless error when the record on appeal was “sparse” and “devoid” of necessary evidence). There is probable merit to McCreless’s argument, and this court cannot resolve the issue adversely to McCreless as a matter of law; therefore, we reverse the judgment of the circuit court insofar as it imputes income to McCreless, and we remand the cause for a hearing on the issue whether McCreless is voluntarily underemployed and, if so, the amount of income that should be imputed to McCreless.

McCreless also disputes the circuit court’s computation of her work-related child-care expenses. She claims that the amount of her work-related child-care expenses were “slashed without explanation.” We note that McCreless’s CS^ll income affidavit indicated that she paid a monthly amount of $48 in work-related child-care expenses and that the circuit court’s CS-42 form also reflects work-related childcare-expenses in the monthly amount of $48. However, the circuit court also had before it contradictory documentary evidence indicating that McCreless had paid an average monthly amount of $260 for child care in 2009 and $180 in 2010.

Again, due to the conflicting documentary evidence, we determine that there is probable merit to McCreless’s argument that the circuit court incorrectly computed her work-related child-care expenses, and this court cannot resolve the issue adversely to McCreless as a matter of law. Therefore, the circuit court’s failure to grant a hearing on McCreless’s post-judgment motion regarding the calculation of her work-related child-care expenses was not harmless error. See Kitchens, 623 So.2d at 1089. We remand the cause for a hearing on the issue of the monthly amount of work-related child-care expenses incurred by McCreless.

Finally, McCreless argues that the circuit court erred in its determination that the $300-a-month student-loan award was periodic alimony. We conclude, as a matter of law, that the $300-a-month student-loan award in the divorce judgment was a property settlement that was not subject to modification after the passage of 30 days.

“A court cannot modify a property settlement, except to correct clerical errors, after a lapse of thirty days from the rendition and entry of a final judgment approving such settlement. A divorce judgment dividing property between the parties is not subject to being modified as to such property division on account of changed conditions. Russell v. Russell, 386 So.2d 758 (Ala.Civ.App.1980).”

Culverhouse v. Culverhouse, 389 So.2d 937, 938 (Ala.Civ.App.1980). Valentin argues that the 2006 modification corrected an error because, he says, it only clarified or interpreted the unspecified nature of the $300-a-month student-loan award in the divorce judgment. We are not convinced. The divorce judgment clearly lists the $300-a-month student-loan award within a seven-item list of debts apportioned to Valentin as part of a property settlement.

“The specific designation of an alimony award as being in gross is not necessary; the lack of such a label will not defeat a provision which in substance provides for an award of alimony in gross as part of a property settlement. In other words, the substance of the award takes precedence over the form or label. Hartsfield v. Hartsfield, 384 So.2d 1097 (Ala.Civ.App.1980). For alimony to be in gross it must satisfy two requirements, (1) the time of payment and the amount must be certain, (2) the right to alimony must be vested. Ex parte Hager, 293 Ala. 47, 299 So.2d 743 (1974). In the present case, clearly the time and amount of payment are certain and it is apparent to this court that the award is not modifiable and hence ‘vested.’ It is therefore clear to this court that the award qualifies as alimony in gross.”

Kenchel v. Kenchel, 440 So.2d 567, 569 (Ala.Civ.App.1983).

We conclude that the $300-a-month student-loan award was, in substance, a property award and that the time and amount of the payment were certain. It is also apparent to this court that the $300-a-month student-loan award was not modifiable, and thus was vested. Therefore, we reverse the judgment of the circuit court insofar as it declares that Valentin’s obligation to pay the $300-a-month student-loan award was periodic alimony and that it automatically terminated when McCreless remarried.

In conclusion, we determine that the circuit court erred to reversal by failing to hold a hearing on McCreless’s post-judgment motion. We reverse the 2011 modification insofar as it terminated Valentin’s obligation to pay the $300-a-month student-loan award. We reverse the circuit court’s determination that McCreless was voluntarily underemployed, and we remand the cause for a hearing to determine (1) whether McCreless is voluntarily underemployed and, if so, the amount of income to impute to McCreless and (2) the amount of work-related childcare expenses incurred by McCreless.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

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

      . The divorce judgment is included in the record on appeal.

      . McCreless’s petition for modification is not included in the record on appeal.

      . McCreless’s 2010 state and federal tax returns also listed two rental properties owned by McCreless. She collected an annual rental income of $19,800. She claimed a $16,361 loss on that supplemental income after subtracting mortgage payments, depreciation, expenses, and other losses.


author: PITTMAN, Judge. MOORE, Judge,

text:
    Ex parte JOHNS & KIRKSEY, INC. (In re Thomas C. Dodson III v. Johns & Kirksey, Inc.).
    2111228.
    Court of Civil Appeals of Alabama.
    Feb. 8, 2013.

      Jonathan L. Berryhill and Robert A. Feeley of Wilson & Berryhill P.C., Birmingham, for petitioner.
    Steven W. Ford and Burke M. Spree of Lewis, Smyth, Winter & Ford, LLC, Tuscaloosa, for respondent.
   PITTMAN, Judge.

Johns & Kirksey, Inc. (“the employer”), a metal-roofing and general contractor, petitions for a writ of mandamus directing the Tuscaloosa Circuit Court (“the trial court”) to set aside an interlocutory order it entered on August 9, 2012, in an action brought by Thomas C. Dodson III (“the employee”), pursuant to the Alabama Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975 (“the Act”). We deny the petition.

On July 2, 2010, the employee sued the employer, alleging that he had sustained a cumulative-trauma injury arising out of and in the course of his employment with the employer and seeking both medical benefits under § 25-5-77, Ala.Code 1975, and permanent-disability benefits under § 25-5-57, Ala.Code 1975. Specifically, the employee’s complaint, as amended, alleged that, on November 4, 1996, he had sustained an injury to his lower back while lifting a piece of structural steel in the course of his employment with the employer; that the injury he had sustained on November 4, 1996, had been surgically repaired by Rick McKenzie, M.D. (“Dr. McKenzie”), on November 7, 1996; that the employee and the employer had reached a settlement regarding the amount of the compensation and vocational benefits the employee was due as a result of the November 4, 1996, injury and had left open the amount of the medical benefits the employee was due; that, after recuperating from the November 7, 1996, surgery, the employee had returned to work for the employer and had performed his full duties, which had included performing manual labor; and that the employee thereafter had sustained cumulative-trauma injuries to his back and right leg as a result of performing manual labor in the course of his employment with the employer. Answering, the employer denied that the employee had sustained cumulative-trauma injuries, denied that the employee was entitled to benefits under the Act, and asserted various affirmative defenses.

The trial court set the case for a bench trial on February 29, 2010, that was limited to the issue whether the employee had sustained a compensable injury. On February 28, 2010, the employer moved to strike a portion of the deposition testimony of Dr. McKenzie, which the employee had indicated that he intended to introduce at the February 29, 2010, trial. The trial court tried the issue whether the employee had sustained a compensable cumulative-trauma injury on February 29 and April 17, 2012. During the trial, the trial court heard the live testimony of witnesses and admitted into evidence the deposition testimony of witnesses, written documents, and photographs. The deposition testimony admitted by the trial court included the portion of Dr. McKenzie’s deposition testimony that was the subject of the employer’s motion to strike.

On August 9, 2012, the trial court entered an order (1) determining that the employee had sustained a cumulative-trauma injury that was compensable under the Act, (2) awarding the employee medical benefits under § 25-5-77, (3) deferring the adjudication of the issue whether the employee was entitled to permanent-disability benefits under § 25-5-57 until the employee had reached maximum medical improvement, (4) denying the employer’s motion to strike a portion of Dr. McKenzie’s deposition testimony, and (5) awarding the employee costs in the amount of $1,811. The employer then filed its mandamus petition on September 20, 2012.

Initially, the employer argues that its mandamus petition should be treated as an appeal because, the employer says, the trial court’s August 9, 2012, order constituted a final judgment. “ ‘An appeal ordinarily lies only from a final judgment.’ ” Alvira v. Campbell, 909 So.2d 847, 849 (Ala.Civ.App.2005) (quoting Tomlinson v. Tomlinson, 816 So.2d 57, 58 (Ala.Civ.App.2001)). “A final judgment completely adjudicates all matters in controversy between the parties.” Stanford v. Feige, 816 So.2d 501, 502 (Ala.Civ.App.2001). This court has held that an order determining that an injury is compensable under the Act and awarding medical benefits only, without adjudicating the issue whether the worker is entitled to disability benefits, does not constitute a final judgment because such an order does not completely adjudicate the worker’s claim under the Act. See Ex parte Cowabunga, Inc., 67 So.3d 136, 138 (Ala.Civ.App.2011); SouthernCare, Inc. v. Cowart, 48 So.3d 632 (Ala.Civ.App.2009), writ quashed, Ex parte SouthernCare, Inc., 48 So.3d 635 (Ala.2010); Homes of Legend, Inc. v. O’Neal, 855 So.2d 536 (Ala.Civ.App.2003); and USA Motor Express, Inc. v. Renner, 853 So.2d 1019 (Ala.Civ.App.2003). In the present case, although the August 9, 2012, order determined that the employee had sustained a compensable injury and awarded him medical benefits under § 25-5-77, it did not adjudicate the employee’s claim insofar as it sought permanent-disability benefits under § 25-5-57; indeed, the August 9, 2012, order expressly deferred the adjudication of the issue whether the employee was entitled to permanent-disability benefits under § 25-5-57 until the employee had reached maximum medical improvement. Accordingly, the August 9, 2012, order is not a final judgment that will support an appeal. Id.

In Cowabunga, Cowabunga, Inc., doing business as Domino’s Pizza (“Cowa-bunga”), sought appellate review of an interlocutory order determining that Thomas W. Short had sustained a compensable injury and awarding Short medical benefits. Although we ruled that an appeal would not lie from that interlocutory order, Cowabunga, 67 So.3d at 138, we determined that Cowabunga was entitled to appellate review of that interlocutory order by a petition for a writ of mandamus because

“[a]waiting review of the order by appeal [after a final judgment had been entered] would only force [Cowabunga] to incur further expenses that it may not owe and that it may never recover from [Short] who, as evidenced by the fact that [Cowabunga] is now voluntarily paying temporary-total-disability benefits, is currently unable to earn wages.”

Cowabunga, 67 So.3d at 139. Although the employer in the present case is not paying the employee temporary-total-disability benefits, delaying review of the trial court’s August 9, 2012, order awarding medical benefits would potentially force the employer to incur medical expenses it may not owe and may not be able to recover from the employee. Accordingly, we conclude that an appeal would not afford the employer an adequate remedy in this ease, and, therefore, we will review the trial court’s August 9, 2012, order pursuant to the employer’s mandamus petition. See Cowabunga.

“Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.”

Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995).

The employer argues that the trial court erred in determining that the employee had proved by clear and convincing evidence that he had sustained a com-pensable cumulative-trauma injury.

“In order to prove that an injury arose from work-related cumulative trauma, an employee must present clear and convincing evidence of legal and medical causation. Valtex, Inc. v. Brown, 897 So.2d 332, 334 (Ala.Civ.App.2004); Safeco Ins. Co. v. Blackmon, 851 So.2d 532, 537 (Ala.Civ.App.2002); and § 25-5-81(c), Ala.Code 1975. ‘Clear and convincing’ evidence is
“ ‘evidence that, when weighted against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion. Proof by clear and convincing evidence requires a level of proof greater than a preponderance of the evidence or the substantial weight of the evidence, but less than beyond a reasonable doubt.’
“§ 25-5-81(c), Ala.Code 1975.
“ ‘To establish legal causation, the employee must prove that “the performance of his or her duties as an employee exposed him or her to a danger or risk materially in excess of that to which people are normally exposed in their everyday lives.” Ex parte Trinity Indus., Inc., 680 So.2d 262, 267 (Ala.1996). To establish medical causation, the employee must prove that the danger or risk to which the employee was exposed “ ‘was in fact [a] contributing cause of the injury’ ” for which benefits are sought. Id. at 269 (quoting City of Tuscaloosa v. Howard, 55 Ala.App. 701, 318 So.2d 729, 732 (Civ.1975)).’ “Madix, Inc. v. Champion, 927 So.2d 833, 837 (Ala.Civ.App.2005). On appeal, when an employer challenges a finding that an employee has proven a work-related cumulative-trauma injury, this court reviews the record to determine whether the trial court, based on its weighing of the competing evidence, reasonably could have been clearly convinced that cumulative trauma in the employment legally and medically caused the injury. Ex parte McInish, 47 So.3d 767, 770 (Ala.2008).”

City of Gadsden v. Scott, 61 So.3d 296, 301-02 (Ala.Civ.App.2010).

“In deciding whether it was reasonable for a trial court to have concluded that a fact was proven by clear and convincing evidence, i.e., whether it was reasonable for the fact-finder to reach a firm conviction as to each essential element of the claim and infer a high probability as to the correctness of the conclusion, the appellate court must limit its determination to “whether there was substantial evidence before the trial court to support a factual finding, based upon the trial court’s weighing of the evidence, that would’ produce a firm conviction in the mind of the trier of fact. Ex parte McInish, 47 So.3d [767,] 778 [(Ala.2008) ].
“As to the ‘substantial evidence’ standard of appellate review, ‘substantial evidence’ properly is defined as ‘ “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.” ’ Ex parte Trinity Indus., Inc., 680 So.2d 262, 268-69 (Ala.1996) (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)). Further, Ala.Code 1975, § 25-5-81(e)(2), mandates the use of the ‘substantial evidence’ standard of appellate review when reviewing ‘pure findings of fact,’ but it does not distinguish between cases in which a claimant’s evi-dentiary burden at trial is a ‘preponderance of the evidence’ or ‘clear and convincing’ evidence; because the Act is silent in that regard, appellate courts must review judgments by viewing evidence adduced to meet either the ‘preponderance’ or the ‘clear and convincing’ evidentiary burden under the same ‘substantial evidence’ standard, foreclosing appellate reweighing of evidence in both types of cases. Ex parte McInish, 47 So.3d at 773. That said, the ‘substantial evidence’ standard of review is applied in ‘necessarily different degrees’ in the two types of cases, with ‘the quantum of proof necessary to sustain on appeal’ a finding of fact in a ‘clear and convincing’ context being ‘greater than’ that in a ‘preponderance’ context. Id. at 777-78.”

DeShazo Crane Co. v. Harris, 57 So.3d 105, 108 (Ala.Civ.App.2009).

In its August 9, 2012, order, the trial court made the following pertinent factual findings:

“In 1996, the [employee] injured his lower back while working for the [employer] and underwent surgery to repair it. This injury was accepted as compen-sable under the Workers’ Compensation Act by [the employer’s] workers’ compensation insurer at the time and the claim was settled, leaving the medical benefits open. Thereafter, the [employee] returned to work for the [employer] at full duty, and was not on light, limited or restricted duty. He performed his normal job in a normal fashion. He then left the [employer] to work for another company. In 2005, he returned to work for the [employer] as a superintendent. Again, he performed his normal job in a normal manner and was not on limited, light, or restricted duty. Beginning in 2008, the [employer] started having trouble with his back and reported to the [employer] that he thought he would have to have another surgery if his back continued to deteriorate. On January 27, 2010, the [employee] returned to Dr. Rick McKenzie, the surgeon who had operated on him in 1996. Dr. McKenzie noted that the [employee] needed additional surgery. In February 2010, the [employee’s] employment duties changed to an office setting. He has continued working on a full time basis in that capacity through the date of trial. The [employee] is not claiming any temporary total disability.
“The court finds that the [employee’s] work as a superintendent from 2005 until February 2010 involved a significant amount of manual labor, in addition to supervisory responsibilities. While the witnesses’ testimony differed as to the percentage of time that the [employee] spent performing manual labor as compared to supervisory duties, all witnesses testified that the [employee’s] work included elements of manual labor. After weighing the credibility of the witnesses, the court finds that the [employee’s] job included a significant amount of bending over to work on items at his feet or underneath them, lifting and carrying items of varying weights, standing, walking, and climbing. These activities were not performed in sporadic, isolated instances but were a routine part of his everyday job. Dr. McKenzie testified by deposition that if the [employee] performed this type of work in his job, then his back injury was at least work related in part. He summarized his testimony by stating:
“ ‘It is impossible to say that this injury is entirely work-related. He has a job that requires a lot of heavy lifting and does a lot of lifting floor to knee. The best I can surmise is that this is a combination of wear and tear that has occurred from just working and just exacerbated by this gentleman’s degenerative disc problems and weak disc that present as a combination of his work-related event. The only way I can be fair about this deal is to say that this is a fifty percent work comp issue, secondary to the disc rupture that predisposed weakness of the disc space. And then fifty percent ... because of the job and type activities that he does. This is not an entirely work related event; however this clearly has work related event issues associated with it. And I am deeming this a fifty fifty problem.’ (McKenzie deposition September 29, 2011, pp. 41 — 42).
“From the evidence, the court finds that the [employee’s] work from 2005 through February 2010, did, in fact, contribute to his need for additional surgery and the evidence is clear and convincing (as defined by the Legislature) that he has a compensable cumulative injury.
“The [employer] has denied the [employee’s] claim, although it is noted that this case presented conflicting evidence and there were grounds for the denial.”

Based on those factual findings, the trial court determined that the employee had sustained a compensable cumulative-trauma injury while working for the employer from 2005 through February 2010.

The employer argues that the trial court’s determinations that the employee had proved by clear and convincing evidence that his duties had required him to perform “a significant amount of manual labor” and that his performance of that manual labor had exposed him to a danger or risk of sustaining a cumulative-trauma injury that was materially in excess of that to which people are normally exposed in their everyday lives are not supported by substantial evidence. The evidence was in conflict regarding how much manual labor the employee had been required to perform in the course of his employment from 2005 through February 2010 and regarding the nature of the manual labor he had been required to perform during that period. The employee testified at trial that he had spent approximately 60% of his time at work performing manual labor from 2005 through February 2010. He further testified that the manual labor he had performed during that period had involved lifting heavy materials and equipment; installing and retrofitting roofs, tasks that had required that he bend, stoop, squat, and kneel repetitively; and performing manual labor on general-contracting jobs. He further testified that the majority of the work he had performed in installing and retrofitting roofs was at the level of his feet.

Jerry Wyatt, one of the employer’s subcontractors, testified at trial that he had worked on a general-contracting job with the employee for 6 weeks in 2008 and that the employee had spent approximately 75% to 80% of his time on that job performing manual labor. Wyatt further testified that the manual labor performed by the employee on that job had involved hanging metal doors that weighed approximately 65 to 70 pounds each, unloading 4-foot by 8-foot sheets of Sheetrock brand drywall product weighing approximately 45 to 50 pounds each, carrying 2 sheets of that product at a time with the employee’s helper a distance of 35 yards, and installing approximately 50 linear feet of lockers packaged in boxes weighing approximately 100 pounds.

Stuart Kirksey (“Stuart”), who had worked for the employer from 1997 until February 2011, having begun as a laborer and having worked his way up to the position of general superintendent, testified by deposition. He testified that he had worked on jobs with the employee and that the employee had spent the majority of his time on those jobs performing manual labor. Stuart also testified that he had left his employment as a general superintendent with the employer in February 2011 because of the toll the manual labor he had been required to perform as a general superintendent had taken on his body. In addition, Stuart testified that William Johns and Robert Kirksey (“Robert”), the owners of the employer, had rarely come to job sites.

The two owners of the employer also testified at trial. Johns estimated that, during the period from 2005 through February 2010, the employee had spent 50% of his time performing manual labor, with 25% of that manual labor having fallen in the light-duty range and 25% in the medium-duty range. Robert estimated that the employee had spent 20% of his time performing manual labor and that the employee had been assisted by a helper in performing manual labor. Charles Winston, a laborer employed by the employer who testified at trial, estimated that the employee had spent approximately 35% to 40% of his time performing manual labor.

Given the conflicting evidence regarding how much manual labor the employee had performed during the period from 2005 through February 2010 and regarding the nature of that manual labor, we conclude that the trial court, based on its weighing of the competing evidence, reasonably could have determined that the employee had performed a substantial amount of manual labor in the course of his employment with the employer from 2005 through February 2010; that that manual labor had involved lifting and repetitive bending, stooping, squatting, and kneeling; and that his performance of that manual labor had exposed him to a danger or risk materially in excess of that to which people are normally exposed in their everyday lives. See Ex parte Trinity Indus., Inc., 680 So.2d 262, 267 (Ala.1996); and City of Gadsden, supra. Consequently, we conclude that the trial court, based on its weighing of the competing evidence, properly ruled that the manual labor performed by the employee was the legal cause of cumulative-trauma injury to his back. Id.

With respect to the issue whether the manual labor performed by the employee constituted the medical cause of his back injury, the trial court had before it the transcript of the deposition testimony of Dr. McKenzie, Dr. McKenzie’s written medical record regarding a visit by the employee on March 10, 2010 (“the medical record”), and the transcript of the deposition testimony of Les Fowler, M.D. (“Dr. Fowler”), the physician selected by the employer’s insurance carrier to perform an independent medical evaluation of the employee. In pertinent part, the medical record states:

“The [employee] and I had a nice discussion today in the presence of his wife regarding his previous injury. He had a previous huge disc herniation at L5-S1 which was treated by discectomy. He had done well from this but over time has developed worsening back pain. He returned with severe disc degeneration at L5-S1, which was his ruptured disc level.
“It is impossible to say that this injury is entirely work-related. He has done well, he has a job that requires a lot of heavy lifting. He does a lot of lifting from floor-to-knee. The best I can surmise is, this is a combination of wear and tear that has occurred from just working, and this exacerbated this gentleman’s degenerative disc problems and weak disc that was present as a combination of his work-related event.
“The only way I can be fair about this deal is to say that this is a 50% workman’s comp issue secondary to the disc rupture, the predisposed weakness of the disc space, and then 50% because of the type of job and activities he does. This is not an entirely work-related event; however, this clearly has work-related event issues associated with it, and I am deeming this a 50/50 problem.”

Consistent with the medical record, Dr. McKenzie testified in his deposition that the manual labor that the employee had performed in the course of his employment with the employer had contributed to the degeneration of his disk at L5-S1.

In his deposition, Dr. Fowler gave the following testimony:

“[Counsel for the employer:] Cumulative trauma is the type claim he is making, Doctor. And I think we can stipulate [the employee] continued to work for this company in several different positions from 1996 until I assume even through today?
“[Counsel for the employee]: Correct. “[Counsel for the employer:] Assuming those facts to be true[,] Doctor[,] can you say to a reasonable degree of medical certainty whether or not his continued work in that environment would have contributed independently to his current medical condition?
“[The witness:] Yes. I mean the work that he is doing if it is, you know, physical type activity with lifting, pushing, pulling, those will have contributed to the problem that he is experiencing right now.
“[Counsel for the employer:] Would it have permanently worsened his condition?
“[The witness:] Yes.”

We conclude that, based on the medical record, the deposition testimony of Dr. McKenzie, and the deposition testimony of Dr. Fowler, the trial court reasonably determined that the manual labor the employee had performed in the course of his employment with the employer from 2005 through February 2010 was in fact a contributing cause of the employees’ disk degeneration at L5-S1. See Ex parte Trinity Indus., supra; and City of Gadsden, supra. Consequently, we conclude that the trial court, based on its weighing of the competing evidence, did not err in ruling that manual labor the employee had performed in the course of his employment with the employer from 2005 through February 2010 caused the employee’s cumulative-trauma injury to his back from a medical standpoint. Id.

Based upon the foregoing analysis, we must conclude that the employer has failed to show that it has a clear legal right to a writ of mandamus directing the trial court to set aside its August 9, 2012, order insofar as that order determined that the employee has sustained a cumulative-trauma injury that is compensable under the Act and awarded the employee medical benefits under § 25-5-77.

The employer also argues that the trial court acted outside its discretion in denying the employer’s motion to strike a portion of Dr. McKenzie’s deposition transcript. However, even if the trial court had stricken Dr. McKenzie’s deposition transcript in its entirety, the medical record and Dr. Fowler’s deposition testimony constitute substantial evidence supporting the trial court’s determination that the employee had proved medical causation. Therefore, assuming, without deciding, that the trial court erred in denying the employer’s motion to strike, its denial of the motion was harmless error. See Rule 45, Ala. R.App. P. (providing that the improper admission of evidence is not a basis for relief in an appellate court when the error complained of is harmless).

Finally, the employer’s petition states that the employer is seeking a writ of mandamus directing the trial court to set aside its August 9, 2012, order insofar as that order awarded the employee costs in the amount of $1,811. “According to §§ 25-5-89 and 12-21-144, [Ala.] Code 1975, the taxing of costs in a case is within the discretion of the trial court, subject to the guideline of Rule 54(d), [Ala.] R. Civ. P.” Littleton v. Gold Kist, Inc., 480 So.2d 1236, 1238 (Ala.Civ.App.1985); see also Ex parte Ellenburg, 627 So.2d 398, 400 (Ala.1993). The employer has made no showing whatsoever that the trial court acted outside its discretion in awarding the employee costs in the amount of $1,811.

Accordingly, for the reasons discussed above, we deny the employer’s petition in its entirety.

PETITION DENIED.

THOMPSON, P.J., concurs.

MOORE, J., concurs specially, which THOMAS, J., joins.

DONALDSON, J., recuses himself.

MOORE, Judge,

concurring specially.

Although I maintain that § 25-5-81, Ala.Code 1975, a part of the Alabama Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975, authorizes appeals from “nonfinal” judgments like the one at issue in this case, see SCI Alabama Funeral Servs., Inc. v. Hester, 984 So.2d 1207, 1211 (Ala.Civ.App.2007) (Moore, J., concurring in the result, with writing, joined by Thomas, J.), and that the merits of a compensability determination cannot be reviewed via a petition for a writ of mandamus, see Ex parte Cowabunga, Inc., 67 So.3d 136, 143-44 (Ala.Civ.App.2011) (Moore, J., concurring in part and dissenting in part, with writing, joined by Thomas, J.), I recognize that my opinion remains in the minority on this court. Hence, unless and until a majority of this court, or our supreme court, decides otherwise, I am constrained to agree that this court may consider the merits of the petition for a writ of mandamus filed by Johns & Kirksey, Inc. (“the employer”). In that regard, I concur fully with the main opinion that Thomas C. Dodson III (“the employee”) presented substantial evidence demonstrating that he sustained a compen-sable back injury resulting from cumulative trauma within his employment and that the employer did not present any other ground warranting the issuance of a writ of mandamus.

THOMAS, J., concurs.

      . The employer’s mandamus petition, which was filed on September 20, 2012, also sought relief with respect to interlocutory orders entered by the trial court on July 20 and October 27, 2011; however, on September 25, 2012, we dismissed the employer’s petition insofar as it had sought relief with respect to those orders because the petition was untimely as to them. See Rule 21(a)(3), Ala. R.App. P. (“The presumptively reasonable time for filing a petition seeking review of an order of a trial court ... shall be the same as the time for taking an appeal.”), and Rule 4(a)(1), Ala. R.App. P. ("Except as otherwise provided herein, in all cases in which an appeal is permitted by law as of right ... to a court of appeals^ the notice of appeal required by Rule 3[, Ala. R.App. P.,] shall be filed with the clerk of the trial court within 42 days (6 weeks) of the entry of the judgment or order appealed from....”).

      . The employee did not seek temporary-disability benefits.


author: MOORE, Judge.

text:
    Henry L. PENICK v. SOUTHPACE MANAGEMENT, INC.
    2111007.
    Court of Civil Appeals of Alabama.
    Feb. 8, 2013.

      Henry L. Penick, Birmingham, for appellant.
    Jim M. Sandefer, Mountain Brook, for appellee.
   MOORE, Judge.

Henry L. Penick appealed to the Jefferson Circuit Court from an adverse judgment of the Jefferson District Court in favor of Southpace Management, Inc., as agent for Booker T. Washington Insurance Company. Penick now appeals from the dismissal of that appeal. We reverse.

Background

It appears undisputed that, on September 30, 2010, Penick entered into a written lease agreement with Booker T. Washington Insurance Company (“the lease agreement”) concerning premises located in Birmingham (“the leased premises”). Penick agreed to pay monthly rent in the amount of $1,700.

In November 2011, Southpace, as agent for Booker T. Washington Insurance Company, filed in the district court an unlawful-detainer action, seeking possession of the leased premises, unpaid rents, and attorney fees. After a March 16, 2012, bench trial, at which Penick appeared, the district court entered a judgment in favor of Southpace. The district court ordered that Southpace be restored to possession of the leased premises and, pursuant to Rule 54(b), Ala. R. Civ. P., found no just reason to delay finalizing that aspect of the judgment.

On March 23, 2012, Penick filed a notice of appeal in the circuit court. Penick originally submitted the signatures of two attorneys as security for costs. On March 30, 2012, after learning that the circuit-court clerk would not accept the signatures as security, Penick paid $100 to cover the costs. The circuit-court clerk notified the district court that Penick’s appeal had been filed as of March 30, 2012.

On April 4, 2012, Southpace moved for a summary judgment in its favor on its unlawful-detainer claim. In addition to asserting that Penick had failed to abide by the terms of the lease agreement and that he had failed to make the required rental payments, Southpace asserted that the circuit court lacked subject-matter jurisdiction over Penick’s appeal because he had failed to post an appropriate and sufficient bond within the time allowed for appealing the district court’s judgment. Southpace supported its motion with copies of affidavits and correspondence, the termination notice that had been posted at the leased premises, the lease agreement, and the pleadings, orders, and judgment from the district-court action.

The circuit court originally scheduled a hearing on Southpace’s summary-judgment motion for May 1, 2012. On that date, however, the circuit court rescheduled the hearing for May 11, 2012. On May 10, 2012, the day before the scheduled hearing, Penick filed his opposition to Southpace’s summary-judgment motion and a supporting affidavit. Southpace moved to strike Penick’s opposition and supporting affidavit, asserting that Penick had failed to comply with the time provisions set forth in Rule 56(c), Ala. R. Civ. P., and that it would be prejudiced if the circuit court considered those materials.

On May 17, 2012, the circuit court entered an order granting Southpace’s motion to strike Penick’s opposition to the pending summary-judgment motion. The circuit court also concluded that it lacked subject-matter jurisdiction of Penick’s appeal. The circuit court dismissed Penick’s appeal but ordered the circuit-court clerk to “transfer the case along with the money being held ... in the amount of ... [$5,100] to the District Court for further proceedings in this matter. The money claim [asserted by Southpace] shall remain pending before the District Court.” The circuit court purported to certify its judgment as final pursuant to Rule 54(b), Ala. R. Civ. P. Penick appealed from that judgment to this court on June 27, 2012.

Analysis

Because it is potentially dispositive of the appeal, we first address Penick’s argument that the circuit court erred in concluding that it lacked subject-matter jurisdiction to consider Penick’s appeal. Although the circuit court stated that Penick’s appeal was untimely, the record establishes that Penick filed his notice of appeal from the district court’s judgment within the period allowed by Ala.Code 1975, § 6-6-350 (“Any party may appeal from a judgment entered against him or her by a district court to the circuit court at any time within seven days after the entry thereof.”).

Southpace, however, argued before the circuit court that Penick’s notice of appeal was not timely filed because he had failed to provide security for costs in a form acceptable to the circuit-court clerk until after the time to appeal had expired. In support of that argument, Southpace relies on Ala.Code 1975, § 12-12-70(a), which provides, in pertinent part: “Any party may appeal from a final judgment of the district court in a civil case by filing notice of appeal in the district court ... together with security for costs as required by law or rule.” Penick, however, asserts that the failure to pay costs or to give security in lieu of costs within the time allowed for filing an appeal is not a jurisdictional defect. We agree with Penick.

In Luce v. Huddleston, 628 So.2d 819 (Ala.Civ.App.1993), this court stated:

“Failure to timely post security for costs is not fatal to jurisdiction in cases involving an appeal from circuit to appellate courts. Bryan v. Brown, 339 So.2d 577 (Ala.1976). The timely filing of a notice of appeal is jurisdictional. Bryan, supra. See also Committee Comments to Rule 7, [Ala.] R.App. P. Although the Rules of Appellate Procedure do not govern appeals from district court or probate court, Rule 1, [Ala.] R.App. P., Finch v. Finch, 468 So.2d 151 (Ala.1985), and Hardeman[ v. Mayfield, 429 So.2d 1097 (Ala.Civ.App.1983) ], the principles found in Rule 7, [Ala.] R.App. P., can be applied. See Mallory v. Alabama Real Estate Commission, 369 So.2d 23 (Ala.Civ.App.1979).
“The rule that probate court cases require that security for costs be posted within the statutory time for taking an appeal, see Journequin v. Land, 235 Ala. 29, 177 So. 132 (1937), and Mays v. King, 28 Ala. 690 (1856), was abrogated by Ala.Code 1975, § 12-22-25, which states in part that ‘the filing of security for costs is not a jurisdictional prerequisite.’ Our Supreme Court has analogized probate court cases in analyzing district court cases. See, e.g., Finch, supra. As additional persuasive authority, we note that, in cases involving misdemeanor conviction appeals from district to circuit court pursuant to Ala. Code 1975, § 12-12-70(b), the filing of an appeal bond is not a jurisdictional requirement. Ex parte Buckner, 435 So.2d 1197 (Ala.1982). Nothing in the above-cited statutes and cases suggests that posting security for costs within the statutory time limit for appeal is a jurisdictional requirement for perfecting appeal. Timely posting of security is not required in appellate cases, nor in probate to circuit court appeals, nor in misdemeanor conviction appeals from district to circuit court. To require contemporaneous posting of security for costs with the appeal from district to circuit court would be to continue a vestige from an earlier era of strict pleading and practice.
“Further, we reiterate the legal procedural philosophy stated in Hand [v. Thornburg, 425 So.2d 467,] 469 [ (Ala.Civ.App.1982) ], that ‘[m]yriad changes have been made in the past decade in an attempt to eliminate, or soften the effect of, ultra technical rules of civil trial and appellate procedures thereby striving for a just, speedy and inexpensive determination of each civil action upon its merits.’ See Rule 1(c), [Ala.] R. Civ. P.
“Nothing in this opinion eliminates the requirements of Ala.Code 1975, § 12-12-70(a), or Rule 62(dc)(5), [Ala.] R. Civ. P., that an appellant from district to circuit court must post security. Rather, this opinion should be construed as meaning that it is the timely filing of the notice of appeal which is jurisdictional.”

628 So.2d at 820.

Based on Luce, supra, we agree with Penick that his failure to pay costs or to give security in lieu of costs within the time frame allowed for filing an appeal was not a jurisdictional defect. Therefore, the circuit court erred in dismissing Penick’s appeal for lack of subject-matter jurisdiction and purporting to transfer the action back to the district court.

Penick also asserts that neither the district court nor the circuit court had personal jurisdiction or subject-matter jurisdiction to hear this action because, he says, Southpace failed to properly serve him with its complaint. We reject Pen-ick’s argument because, based on the record, Penick waived any objection to improper service and submitted himself to the jurisdiction of the district court.

As recognized in Persons v. Summers, 274 Ala. 673, 680, 151 So.2d 210, 214-15 (1963):

“[T]he allegation of the bill shows that ‘complainants requested a continuance of said hearing which was granted .... ’ Service of process is not essential if the party intended to be served appears and defends and submits himself to the jurisdiction of the court. The purpose of process is to bring the defendant into court and may be by him waived.... We consider the appearance requesting a continuance to be a general appearance because we have said that if a defendant intends to rely on want of jurisdiction over his person, he must appear, if at all, for the sole purpose of objecting to the jurisdiction of the court. An appearance for any other purpose is usually considered general.”

The record reveals that Penick properly challenged Southpace’s December 1, 2011, attempt to serve him and the district court granted his motion to quash service. Southpace subsequently moved the district court for permission to amend its complaint, reasserting its unlawful-detainer claim; Southpace asserted that, on December 22, 2011, it had properly served Penick and that he had failed to vacate the leased premises. The district court granted Southpace’s motion, and, thereafter, Pen-ick raised no challenge to service, whether improper or wholly lacking, and he raised no objection to the district court’s jurisdiction over him. In fact, the record indicates that Penick answered Southpace’s complaint and that the district court conducted a trial, at which Penick appeared pro se, on the merits of Southpace’s unlawful-detainer claim. Thus, Penick is deemed to have made a general appearance in the action, to have waived any defects in the method of service, and to have submitted to the jurisdiction of the district court. Persons v. Summers, supra.

Penick next asserts that the circuit court’s May 1, 2012, order, in which it rescheduled the hearing on Southpace’s summary-judgment motion to May 11, 2012, failed to provide him the 10 days’ notice required by Rule 56(c), Ala. R. Civ. P. Penick also asserts that the circuit court erred in striking his opposition to South-pace’s summary-judgment motion.

Penick has raised these arguments for the first time on appeal. See Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992) (“This Court cannot consider arguments raised for the first time on appeal; rather, our review is restricted to the evidence and arguments considered by the trial court.”); and Gotlieb v. Collat, 567 So.2d 1302, 1304 (Ala.1990) (“This Court cannot put a trial court in error for failing to consider evidence or accept arguments that, according to the record, were not presented to it.”). Because Penick’s arguments challenging the circuit court’s scheduling of the summary-judgment hearing and its ruling on the motion to strike were not presented to the circuit court, we will not address them.

As his final argument, Penick asserts that the circuit court improperly certified its May 17, 2012, order as final pursuant to Rule 54(b), Ala. R. Civ. P. He asserts that Southpace’s claim for unpaid rents and other damages have not been resolved and that, as a result, his appeal should be dismissed as being from a nonfi-nal judgment with instructions to the circuit court to vacate the order awarding Southpace possession of the leased premises. We conclude that the circuit court’s Rule 54(b) certification was a nullity because Southpace’s money claim was not before the circuit court; that claim remained pending in the district court, which had not entered a final judgment as to that claim.

We reverse the circuit court’s judgment to the extent it dismissed Penick’s appeal for lack of subject-matter jurisdiction. The cause is remanded to the circuit court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . The district court also found that rent in the amount of $1,700 per month had accrued since the filing of Southpace's complaint and granted leave to Southpace to prove its damages against Penick.

      . We note that, in unlawful-detainer actions, certification pursuant to Rule 54(b) of an order in which a trial court has granted a landlord possession of property but reserved judgment as to the amount of unpaid rent or damages is not an uncommon practice. See, e.g., Subway Real Estate Corp. v. Century Plaza Co., 624 So.2d 1052, 1054 (Ala.1993) (circuit court directed entry of a final judgment, pursuant to Rule 54(b), on its order finding that tenant should be restored to possession of the leased premises on unlawful-detainer claim even though genuine issues of material facts existed as to the remaining claims, which included the landlord’s claims for unpaid rents, breach of contract, breach of a promissory note, and breach of guaranty agreement, as well as the tenants' counterclaims of fraud, wrongful termination of a lease, breach of contract, tortious interference with business relations, and breach of duty to mitigate damages); Lovejoy v. Interest Corp., 794 So.2d 1205, 1206 (Ala.Civ.App.2001) (reviewing judgment in an unlawful-detainer action that had been appealed to the circuit court, in which the district court had found in favor of the landlord on the possession claim and had certified that order as final pursuant to Rule 54(b) " 'with leave to prove damages against [the tenant] on the money claim' ”); and Whitman v. Hughes, 581 So.2d 1112, 1113 (Ala.Civ.App.1991) (reviewing appeal from circuit court’s judgment, which had been certified pursuant to Rule 54(b), on the landlord’s claims alleging unlawful detainer and seeking eviction while "[a]ll issues concerning damages to the lessee for the value of his improvements were reserved for a jury trial”).

      . Because the circuit court purported to dismiss the cause for lack of subject-matter jurisdiction, it did not address the merits of the alternative argument asserted in Southpace’s summary-judgment motion. Therefore, the motion remains pending before the circuit court.