author: THOMPSON, Presiding Judge. MOORE, Judge,

text:
    Robert M. STARKEY v Martha STARKEY.
    2120138.
    Court of Civil Appeals of Alabama.
    June 21, 2013.

      Robert M. Starkey, pro se.
   THOMPSON, Presiding Judge.

Robert M. Starkey (“the husband”) appeals from the judgment (“the divorce judgment”) divorcing him from Martha Starkey (“the wife”) and from the subsequent order denying the husband’s motion to alter, amend, or vacate the divorce judgment.

The record indicates the following facts relevant to this appeal. On May 17, 2011, the wife filed a complaint seeking a divorce. On October 26, 2011, the trial court entered an order requiring the husband to pay the wife $1,500 each month as penden-te lite support. The trial in this case was held on February 14, 2012. On March 9, 2012, before the divorce judgment was entered, the wife filed a motion for contempt alleging that the husband had not paid the pendente lite support that was owed for February and March 2012. The wife filed a second contempt motion on April 13, 2012, adding the month of April to the months that, she alleged, the husband had failed to pay pendente lite support. She filed a third motion for contempt on June 13, 2012, adding the months of May and June to the months that, she alleged, the husband had failed to pay pendente lite support. The case-action summary indicates that a hearing on the wife’s contempt motions was scheduled for September 2012.

The divorce judgment was entered on July 20, 2012. That judgment does not address the wife’s motions for contempt, but it states that “any other relief requested by the parties not addressed herein is denied.” On July 31, 2012, the husband filed a motion to alter, amend, or vacate the divorce judgment and asked that his motion be heard the same day as the previously scheduled hearing on the wife’s contempt motions.

A hearing on the contempt motions and the postjudgment motion was held on October 2, 2012. The trial court denied the husband’s postjudgment motion but continued the hearing as to the wife’s contempt motions because the husband did not have an attorney, and, as the trial court pointed out to him, he was “looking at going to jail for willful failure to comply with the orders of this Court, and I want you to have an attorney represent you at that hearing.” The husband filed his notice of appeal to this court on November 13, 2012. On December 12, 2012, the trial court ordered the husband to pay the wife $1,500 each month “as temporary periodic alimony pending the appeal.” The December 12, 2012, order stated that the hearing on the issues of contempt would be set by a separate order.

The contempt hearing was held January 31, 2013, and March 5, 2013. When the hearing was convened on March 5, 2013, the trial court was notified that the parties had reached a settlement agreement. The trial court incorporated the settlement agreement into its order dated March 11, 2013. In that order, the trial court noted that the husband had not paid the “temporary periodic alimony” as ordered in December 2012. The trial court stated that it would set a separate hearing to determine whether the husband’s failure to make the “temporary periodic alimony” payments “was contemptuous.” The order is silent as to the wife’s earlier contempt motions regarding the husband’s failure to pay the pendente lite support as ordered.

In reviewing the record, this court is unable to determine whether the wife’s three contempt motions — filed in March, April, and June 2012 — have been ruled upon by the trial court. Although the divorce judgment, which was entered after the contempt motions were filed, purports to have denied all relief not addressed in the judgment, it appears that the parties and the trial court contemplated that the issue of contempt was still pending because hearings were scheduled and held on the issue subsequent to the entry of the divorce judgment. However, no order specifically addressing the wife’s contempt motions appears in the record.

Even though this issue has not been addressed by either party, this court must first determine whether it has jurisdiction over this appeal. “ ‘Jurisdictional matters are of such importance that a court may take notice of them ex mero motu.’ Naylor v. Naylor, 981 So.2d 440, 441 (Ala.Civ.App.2007) (quoting McMurphy v. East Bay Clothiers, 892 So.2d 395, 397 (Ala.Civ.App.2004)). “The question whether a judgment is final is a jurisdictional question, and the reviewing court, on a determination that the judgment is not final, has a duty to dismiss the case.” Hubbard v. Hubbard, 935 So.2d 1191, 1192 (Ala.Civ.App.2006) (citing Jim Walter Homes, Inc. v. Holman, 373 So.2d 869, 871 (Ala.Civ.App.1979)).

In Perry v. Perry, 92 So.3d 799, 801 (Ala.Civ.App.2012), this court dismissed an appeal of a divorce judgment because the trial court had not ruled on the wife’s contempt motion relating to an interlocutory order requiring the husband to pay the wife sufficient money for her to pay household bills.

In this case, the wife’s motions for contempt relate to the trial court’s interlocutory order requiring the husband to pay the wife pendente lite support. If the trial court has not yet ruled on those motions, the appeal is due to be dismissed. However, this court cannot determine whether the trial court has disposed of the wife’s contempt claims. The record does not contain an order or judgment specifically addressing the merits of or adjudicating the wife’s contempt claims. It could be argued that the trial court disposed of those motions, which were pending at the time the divorce judgment was entered, when it denied all relief not addressed in the judgment. However, as mentioned, that does not appear to have been the trial court’s intent. Likewise, the parties’ settlement agreement, incorporated into the order of March 11, 2013, may have encompassed the unpaid pendente lite support payments. In the March 2013 judgment, the trial court refers to the husband’s failure to make three payments of temporary alimony that had come due in December 2012 and January and February 2013. No mention is made, however, of the missed pendente lite payments that were the subject of the wife’s contempt motions.

In short, from the record before us, this court cannot determine the status of the wife’s contempt motions. Accordingly, we remand this case to the trial court and reinvest it with jurisdiction for 21 days from the date of this opinion to either enter a final judgment encompassing the ■wife’s contempt motions or to enter an order clarifying that those motions have been disposed of or no longer remain pending.

REMANDED WITH INSTRUCTIONS.

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

MOORE, J., dissents, with writing.

MOORE, Judge,

dissenting.

I respectfully dissent from the decision to remand this cause. In Hood v. Hood, 23 So.3d 1160 (Ala.Civ.App.2009), the trial court had failed to resolve an outstanding contempt motion before the case was appealed to this court. Therefore, this court, by order, reinvested the trial court with jurisdiction to dispose of that contempt motion. 23 So.3d at 1162. On remand, the trial court entered an order stating that all claims not addressed in the previous order were denied. Id. This court stated that that order, “because it resolved the last of the pending issues between the parties, constituted the final judgment in th[e] matter.” Id. As noted in the main opinion in the present case, the divorce judgment in this case clearly states that “any other relief requested by the parties not addressed [in the judgment] is denied.” 142 So.3d at 635. Therefore, in this case, there is no need to remand this cause for clarification or for the entry of a final judgment. Accordingly, I dissent from the decision to remand this cause.

      . The record indicates that the husband was held in contempt for his behavior during the January 31, 2013, hearing. According to the contempt order, while on the witness stand, the husband continually disobeyed the trial court’s instructions by failing to respond to questions without making commentary, by asking questions of counsel, and by being repeatedly insulting and rude. The husband was fined $100 and sentenced to five days in the Jackson County jail.

       Note from the reporter of decisions: On August 30, 2013, on return to remand, the Court of Civil Appeals affirmed, without opinion. On November 8, 2013, that court denied rehearing, without opinion. On January 10, 2014, the Supreme Court denied certiorari review, without opinion (1130228).


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    Reba YARBROUGH v. D. Max YARBROUGH.
    2120146.
    Court of Civil Appeals of Alabama.
    Sept. 20, 2013.

      Melody Brooks Walker, Anniston, for appellant.
    Wendy Ghee Draper of Ghee & Draper, Anniston, for appellee.
   MOORE, Judge.

Reba Yarbrough (“the wife”) appeals from a judgment of the Calhoun Circuit Court divorcing her from D. Max Yar-brough (“the husband”) and dividing the marital property pursuant to a prenuptial agreement entered into by the parties. We dismiss the appeal.

On December 13, 2010, the wife filed a complaint for a divorce, asserting that she and the husband had married on December 6,1996, that no children had been born of the marriage, that the husband had committed acts of adultery, and that the marriage was irretrievably broken. The wife requested that the trial court grant her a divorce, equitably divide the marital property, and award her alimony and attorney’s fees.

The husband filed an answer and a counterclaim for a divorce, asserting, among other things, that, on December 2, 1996, the parties had entered into a prenuptial agreement and that it governed the distribution of the parties’ property. The husband requested that the trial court grant the parties a divorce based on the irretrievable breakdown of the marriage and incompatibility of temperament, ratify and confirm the prenuptial agreement and direct the parties to abide by that agreement, and award the husband attorney’s fees pursuant to the prenuptial agreement. The husband attached the prenuptial agreement as an exhibit to his pleading.

On June 15, 2012, the trial court entered a judgment of divorce. In that judgment, the trial court found, among other things, that the prenuptial agreement was valid and enforceable, that, pursuant to the terms of the prenuptial agreement, the parties had agreed that their marriage would not alter their legal rights to dispose of their separate estates, that the parties had maintained separate checking accounts during the marriage, and that, before and during the marriage, the husband had owned and operated a business known as “Max Yarbrough Pools and Construction” (“the business”).

Based on those findings, the trial court awarded the husband full right, title, ownership, possession, and control in and to the business, including the name, assets, accounts, investments, and receivables of the business and the inventory, vehicles, supplies, and equipment of the business. It awarded the wife a 2007 Honda Pilot automobile and the husband a 2009 Suzuki motorcycle, a 2007 Winnebago motor home, and red and silver Nissan trucks. Each party was awarded any checking and savings accounts, stocks, bonds, certificates of deposit, or 401k accounts that existed in his or her individual name, and the husband was awarded any such accounts in the name of the business. Both parties were awarded items of personal property and household furnishings pursuant to lists attached to the judgment. Additionally, the wife was instructed to prepare two lists of property from a third exhibit identifying, with certain exceptions, the parties’ jointly owned assets and to allow the husband to choose the list representing the items he elected to be awarded. Each party was directed to pay and to be fully responsible for any debts in his or her name, and the husband was directed to be fully responsible for any debts in the name of his business. The trial court required each party to pay his or her own attorney’s fees and denied all other requests.

The wife filed a motion requesting the trial court to reconsider its order, specifically disputing the award of assets acquired during the marriage. Both parties filed letter briefs with the court addressing the wife’s motion. The trial court granted the wife’s motion insofar as it requested that the Winnebago motor home be sold and the proceeds split equally between the parties; it otherwise denied the wife’s motion. On October 24, 2012, the husband filed a motion for clarification regarding asserted errors in the wife’s property lists created from the third exhibit to the judgment. Specifically, the husband indicated that numerous items were omitted from the lists, that one item appeared on both lists, and that several items should not have appeared on the lists because they were tools of his business or because he had owned the items before the parties’ marriage.

The wife filed an appeal to this court on November 18, 2012. Before we reach the merits of the wife’s appeal, however, we must first determine whether the appeal is from a final judgment.

“ ‘It is well settled law that “jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.” Pace v. Utilities Bd. of Foley, 752 So.2d 510, 511 (Ala.Civ.App.1999) (quoting Singleton v. Graham, 716 So.2d 224, 225 (Ala. Civ.App.1998)). We also note that an untimely filed notice of appeal results in a lack of appellate jurisdiction, which cannot be waived. Luker v. Carrell, 25 So.3d 1148, 1151 (Ala.Civ.App.2006). Additionally, ‘[t]he question whether a judgment is final is a jurisdictional question, and the reviewing court, on a determination that the judgment is not final, has a duty to dismiss the case.’ Hubbard v. Hubbard, 935 So.2d 1191, 1192 (Ala.Civ.App.2006).”

Parker v. Parker, 946 So.2d 480, 485 (Ala. Civ.App.2006).

“This court has consistently held that trial-court orders instructing the parties to prepare lists in order to effectuate a property division are nonfinal until a division of the property actually occurs.” Sims v. Sims, 38 So.3d 71, 72 (Ala. Civ. App.2009). See also McGill v. McGill, 888 So.2d 502, 505 (Ala.Civ.App.2004), and Grubbs v. Grubbs, 729 So.2d 346, 347 (Ala. Civ.App.1998). The record on appeal reveals that the husband had filed a motion requesting clarification regarding the wife’s proposed lists of the remaining property to be divided in accordance with the trial court’s judgment. That motion, for which there is no resulting order in the record, makes clear that the parties had not yet complied with the division of personal property as ordered in the judgment of divorce. Thus, the present appeal is from a nonfinal judgment. “There must be some final disposition of the personal property by the trial court before its judgment is final.” Sims, 38 So.3d at 72.

Therefore, the wife’s appeal is due to be dismissed.

APPEAL DISMISSED.

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


author: PER CURIAM.

text:
    Carolyn MALONE v. STEELCASE, INC.
    2111256.
    Court of Civil Appeals of Alabama.
    Sept. 20, 2013.
    Donald R. Rhea of Rhea, Boyd & Rhea, Gadsden; and Rebekah Keith McKinney of Watson McKinney, LLG, Huntsville, for appellant.
    D. Edward Starnes III and Jeffrey T. Kelley of Lanier Ford Shaver & Payne P.C., Huntsville, for appellee.
    Lawrence T. King and Lindsey 0. Simmons of King Simmons, P.C., Birmingham, for amici curiae “The Unions,”  in support of the appellant.
    Patrick J. Ballard of Ballard Law Office, Birmingham, for amicus curiae Alabama Association for Justice, in support of the appellant.

       Note from the reporter of decisions: "The Unions” are 104 separate unions, including AFL-CIO Alabama. They are not listed separately in the amicus brief but are listed on motions for leave to file an amicus brief.

   PER CURIAM.

Carolyn Malone appeals a June 11, 2012, judgment that awarded her workers’ compensation benefits but also allowed her employer, Steelcase, Inc. (“Steelcase”), to offset the award by certain amounts it had paid in salary to Malone after her injury. The issue presented to the court is solely one of law. Accordingly, we quote a portion of the trial court’s judgment for a recitation of the pertinent facts, as well as the trial court’s factual determinations and legal conclusions:

“This workers’ compensation action came before the Court for trial on November 30, 2011. The plaintiff, Carolyn Malone, seeks workers’ compensation benefits for a lower back injury which she alleges was caused by an accident on May 21, 2008. The defendant, Steel-case, Inc., disputes [Malone’s] claim, denies that [Malone] sustained a compen-sable injury, and avers that it is entitled to a credit or offset pursuant to Ala. Code [§] § 25-5-56 and -57 (1975), for wages and benefits paid to [Malone]. After considering [Malone’s] testimony, the testimony of the other witnesses, the medical records, and other evidence presented to the Court, the Court renders the following findings of fact, conclusions of law, and judgment entry:
“STIPULATIONS OF THE PARTIES
“1. An employer/employee relationship existed between the parties on May 21, 2008, and all times pertinent to this action.
“2. The parties are subject to the Alabama Workers’ Compensation Act [(‘the Act’), § 25-5-1 et seq., Ala.Code 1975].
“3. [Malone] has been continuously employed by [Steelcase] since May 21, 2008.
“4. [Malone] has been paid wages on a continuous basis since May 21, 2008.
“5. All medical expenses incurred by [Malone] for medical treatment related to the reported May 21, 2008, incident have been paid by [Steelcase] pursuant to Ala.Code § 25-5-56 (1975), and in accordance with Ala.Code § 25-5-77 (1975).
“6. [Malone’s] average weekly wage is $489.20.
“FINDINGS OF FACT
“1. The parties are subject to the jurisdiction and venue of this Court.
“2. [Steelcase] received notice in accordance with the Act.
“3. On May 21, 2008, [Malone] was employed in the C9000 department at Steelcase. Her job involved the attachment of small parts to panels, which were processed on an assembly line/conveyor type system. After the parts were affixed, [Malone] and a co-worker moved the panels down the line for the next stage of the process.
“4. On May 21, 2008, at 10:00 a.m., [Malone] was engaged in affixing parts to 65" x 60" panels. As she and a coworker were moving a panel, the coworker dropped one end of a 65" x 60" panel as [Malone] and a co-worker were in the process of moving the panel from her work table to an adjacent conveyer belt. [Malone] experienced pain in her lower back.
“5. [Malone] gave written notice of the incident on May 29, 2008. [Malone] was referred to Occupational Health Group (‘OHG’) of Decatur for medical treatment. [Malone] was examined by Dr. Fred J. McMurty on May 29, 2008, for complaints of lower back pain. [Malone] was authorized to return to work with restrictions. [Malone] was subsequently treated conservatively at OHG.
“8. On September 24, 2008, Dr. [Cyrus] Ghavam found that [Malone] was at maximum medical improvement and authorized her to return to regular duty work. He did not assign any physical impairment.
“13. On February 15, 2010, Dr. [Keith] Anderson confirmed Dr. Gha-vam’s September 24, 2008, opinion that [Malone] is at maximum medical improvement. He assigned a permanent impairment of 10% to the body as a whole.
“14. [Malone] has maintained continuous employment at Steelcase subsequent to May 21, 2008. Her job duties were accommodated as necessary to conform with any restrictions assigned by her treating physicians. She has continued to work on a full-time basis and received her regular wage rate. Her hourly wage rate had increased to $13 per hour at the time of trial. She has not sustained any actual wage loss as a result of the áccident. She is physically capable of performing the physical duties of her current job. Her current job is a combination of functions involving a customer service job and a hinge assembly job. The job functions have been accommodated to allow [Malone] to stand and sit at various times during the day.
“15. Dr. Anderson is of the opinion, based on the history provided by [Malone], that her lower back complaints were caused by the reported accident on May 21, 2008.
“CONCLUSIONS OF LAW
“[Malone] sustained an injury to her lower back-on May 21, 2008, which arose out of and in the course of her employment. The lower back injury resulted in a permanent physical impairment of twenty five per cent (25%) to the body as a whole. Based on the average weekly wage of $489.20 per week, the compensation rate is $326.15. The weekly compensation rate is $81.54 per week ($326.15 x 25%).
“[Steelcase] is entitled to a credit/offset, on a week-by-week basis, for any compensation benefits due, for each week in which [Malone] was paid wages by [Steelcase], in accordance with Ala. Code § 25-5-57(c)(3) (1975).
“JUDGMENT ENTRY
“In accordance with the foregoing findings and conclusions, it is ORDERED AND ADJUDGED by the Court as follows:
“A. As a result of her May 21, 2008, injury, [Malone] shall have and recover a judgment against the defendant Steelcase, Inc., for permanent partial disability compensation at a weekly compensation rate of $81.54. From and after February 15, 2010, the date that Dr. Anderson determined that [Malone] was at maximum medical improvement, through June 15, 2012, or a period of 122 weeks, [Malone] is entitled to receive physical impairment benefits at a rate of $81.54 per week or a total of $9,947.88, of which [her attorneys] are entitled to a fee .... [Steelcase] is entitled to a credit/offset, in the amount of $69.30 per week, for the wages paid to [Malone] each week from and after the date that she reached maximum medical improvement until such time said wages cease to be paid. If said wages cease to be paid during the 300 week period subsequent to February 15, 2010, then, and under those circumstances, [Malone] shall be entitled to receive from [Steelcase] $69.30 per week for the remainder of the 300 weeks due and owing.”

(Capitalization in original; emphasis added.)

On appeal, Malone argues that the trial court erred in awarding Steelcase a setoff or credit against the benefits it awarded her in its June 11, 2012, judgment. Malone argues that the trial court applied an incorrect interpretation of § 25-5-57(c)(3), Ala.Code 1975, in awarding Steelcase a credit or offset against the workers’ compensation award for amounts she received in salary while working for Steelcase after the date she reached maximum medical improvement (“MMI”). Steelcase argues that the trial court properly interpreted § 25 — 5—57(c)(3) in awarding it a credit for salary it paid to Malone during the benefit period. This court has allowed the Alabama Association for Justice (“AAJ”) and AFL-CIO Alabama each to file a brief as an amicus curiae. Both of the amici curiae have filed briefs in support of Malone’s position in this appeal.

We note that, in asserting their arguments before this court, the parties have stipulated that Steelcase made no accommodations to allow Malone to continue in her employment and that Malone’s job duties were within the restrictions assigned to Malone by her doctors. In other words, the parties have agreed that Malone’s employment was not “sheltered employment” and that the wages Steelcase paid Malone when she returned, to work after her injury were not paid in sympathy for her injury.

The portion of the Workers’ Compensation Act (“the Act”), § 25-5-1 et seq., Ala. Code 1975, concerning setoffs or credits to be afforded an employer against a workers’ compensation award provides:

“(c) Setoff for other recovery. In calculating the amount of workers’ compensation due:
“(1) The employer may reduce or accept an assignment from an employee of the amount of benefits paid pursuant to a disability plan, retirement plan, or other plan providing for sick pay by the amount of compensation paid, if and only if the employer provided the benefits or paid for the plan or plans providing the benefits deducted.
“(2) The employee shall forfeit to the employer all compensation paid for any period to which is attributed any award of back pay either by a court, administrative agency, arbitration, or settlement, provided, however, social security payments shall not be included herein.
“(3) If an employer continues the salary of an injured employee during the benefit period or pays similar compensation during the benefit period, the employer shall be allowed a setoff in weeks against the compensation owed under this article. For the purposes of this section, voluntary contributions to a Section 125-cafete-ria plan for a disability or sick pay program shall not be considered as being provided by the employer.”

§ 25-5-57(c), Ala.Code 1975.

This court has addressed the setoff provided in § 25 — 5—57(c)(3) in two cases. In City of Montgomery v. Casper, 849 So.2d 966 (Ala.Civ.App.2002), the injured worker was awarded benefits for a permanent total disability, and the employer argued, among other things, that it was entitled to a credit for salary it had paid the worker when she returned to work for half days for a period after her injury. This court held:

“Section 25-5-57(c)(3), Ala.Code 1975, provides that if an employee receives salary ‘during the benefit period ..., the employer shall be allowed a setoff in weeks against the compensation owed under this article.’ As stated above, the record contains evidence, introduced by the employee, that the employee worked half-days for five weeks and one day and that the trial court awarded workers’ compensation benefits during that period the employee was working half days. The trial court’s calculation of the benefits is incorrect. We reverse that portion of the trial court’s judgment and remand the cause for the trial court to allow the employer a setoff for the salary the employee received during that five-week-and-one-day period.”

849 So.2d at 969.

Also, in Liberty Trousers Division of Walls Industries v. Amos, 738 So.2d 1272 (Ala.Civ.App.1999), the trial court found that the worker had suffered a permanent total disability, and this court affirmed that determination. The record in that case indicated that, after receiving medical treatment for her injury, the worker had returned to work under “light-duty” restrictions. This court agreed with the employer’s argument that § 25-5-57(c)(3) authorized it to receive a setoff against the permanent-total-disability award for the amount it had paid in wages after the worker returned to work.

More recently, our supreme court mentioned § 25-5-57(c)(3) in its opinion in Fort James Operating Co. v. Stephens, 996 So.2d 833 (Ala.2008). In that case, Stephens had been allowed to return to full-duty employment with a few restrictions, but Stephens retired on November 29, 2000. The trial court awarded Stephens workers’ compensation benefits based on its determination that Stephens had suffered a 35% permanent partial disability. On appeal, Fort James disputed the trial court’s determination of the date on which Stephens had reached MMI, arguing, among other things, that Stephens had reached MMI on June 7, 1999, rather than on March 23, 2000, as determined by the trial court. Based on that argument, Fort James contended that it was entitled to a setoff under § 25-5-57(c)(3) of a total of 48 weeks for wages it had paid Stephens between June 7, 1999, and November 29, 2000, when Stephens retired. Our supreme court disagreed, concluding that the evidence supported the trial court’s determination that Stephens had reached MMI on March 23, 2000, and, therefore, that Fort James was entitled to a setoff under § 25-5-57(c)(3) only for wages it had paid to Stephens between March 23, 2000, and November 29, 2000. Fort James Operating Co. v. Stephens, 996 So.2d at 840.

Fort James Operating Co. v. Stephens, is relevant to the issue in this case because in that opinion our supreme court, in addressing the employer’s argument that it was entitled to a setoff under § 25-5-57(c)(8), stated:

“Section 25-5-57(c)(3), Ala.Code 1975, provides that if an employee receives a salary ‘during the benefit period ... the employer shall be allowed a setoff in weeks against the compensation owed under this article.’ In order for an employee to receive permanent-partial or permanent-total-disability benefits, the employee must have reached MMI. Ex parte Phenix Rental Ctr., [873 So.2d 226 (Ala.2003) ].”

996 So.2d at 840 (emphasis added).

On application for rehearing, Stephens argued for the first time that the supreme court had erred in allowing Fort James the setoff under § 25-5-57(c)(3). Stephens asserted that the salary he had been paid by Fort James was not a “ ‘sympathy’ salary paid to an injured worker who is not working” and that, therefore, because he had earned his salary, no credit should be afforded under § 25 — 5—57(c)(3). 996 So.2d at 843. Our supreme court declined to address Stephens’s argument concerning the application of § 25-5-57(c)(3), concluding that Stephens had impermissibly raised the argument for the first time on application for rehearing. Id. at 843. The court stated:

“[Bjecause Stephens attempts to raise this particular argument for the first time in his application for rehearing, we cannot consider it. Because this is an important issue in the area of workers’ compensation law that does not appear to have been definitively addressed by this Court, we will await a proceeding in which this issue is both squarely before this Court for adjudication and adequately briefed.”

996 So.2d at 843-44.

Malone, unlike Stephens in Fort James, makes a timely argument on appeal that her return to work differed from that of the workers in Casper and Amos because her wages were earned through her labor and were not provided as a “sympathy salary.” However, we need not address that argument to reach our decision in this matter.

“In construing the terms of the Alabama Workers’ Compensation Act (‘the Act’), § 25-5-1 et seq., Ala.Code 1975, the courts are bound by the ordinary rules of statutory construction.” Ex parte Kish, 45 So.3d 772, 775 (Ala.Civ.App.2010). “The basic rule of statutory construction is to ascertain and give effect to the intent of the legislature in enacting the statute.” Id.; see also Ex parte Anlcrom, [Ms. 1110176, Jan. 11, 2013] — So.3d —,— (Ala. 2013) (quoting Volkswagen of America, Inc. v. Dillard, 579 So.2d 1301, 1305 (Ala. 1991)) (“ ‘[T]he fundamental rule of statutory construction is to ascertain and give effect to the intent of the legislature in enacting the statute. If possible, the intent of the legislature should be gathered from the language of the statute itself.’ ”).

Malone correctly points out that the Act is to be liberally construed to “effectuate the intended beneficial purposes” of the Act. Act. No. 92-537, § 1, Ala. Acts 1992; see also Haggard v. Uniroyal, Inc., 423 So.2d 865, 866 (Ala.CivApp.1982) (citing Reynolds Metals Co. v. Gray, 278 Ala. 309, 178 So.2d 87 (1965)) (same). Steelcase agrees that the Act is to be liberally construed, but it argues that the interpretation of the Act “ ‘must be one that the language of the statute “fairly and reasonably” supports.’ ” Ex parte Weaver, 871 So.2d 820, 824 (Ala.2003) (quoting Ex parte Dunlop Tire Corp., 706 So.2d 729, 733 (Ala.1997), quoting in turn Ex parte Beaver Valley Corp., 477 So.2d 408, 411 (Ala. 1985)). Both parties maintain that § 25-5-57(c)(3) is unambiguous and that the “plain meaning” of the statute warrants an interpretation in their favor. The parties agree that the following rules of statutory construction apply:

“The fundamental rule of statutory construction is to ascertain and give effect to the intent of the legislature in enacting the statute. Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect. Tuscaloosa County Comm’n v. Deputy Sheriffs’ Ass’n of Tuscaloosa County, 589 So.2d 687 (Ala. 1991).”

I MED Corp. v. Systems Eng’g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992).

Malone has raised a number of arguments in her brief on appeal in support of her more general contention that the trial court erred in awarding Steelcase a setoff. Malone argues that § 25-5-57(a)(3)i., Ala. Code 1975, often referred to as “the return-to-work provision,” controls in this case to determine her compensation. The parties agree, and the trial court’s judgment demonstrates, that the trial court applied § 25-5-57(a)(3)i. in reaching its workers’ compensation judgment. Section 25-5-57(a)(3)i. provides, in pertinent part:

“Return to Work. If, on or after the date of maximum medical improvement, ... an injured worker returns to work at a wage equal to or greater than the worker’s pre-injury wage, the worker’s permanent partial disability rating shall be equal to his or her physical impairment and the court shall not consider any evidence of vocational disability.”

This court has explained the purpose of the return-to-work provision as follows:

“This court has held that the return-to-work statute creates a rebuttable presumption that an employee who returns to work earning the same or a greater wage suffered no loss of earning capacity. Lanthrip v. Wal-Mart Stores, Inc., 864 So.2d 1079, 1082 (Ala.Civ.App.2002); Perneo Aeroplex v. Moore, 775 So.2d 215 (Ala.Civ.App.1999); and Discovery Zone v. Waters, 753 So.2d 515, 517 (Ala.Civ. App.1999). In those cases, we explained that an employee may rebut the presumption by establishing that the employee truly suffers from incapacity or that the employee’s higher post-injury wages are an unreliable indicator of his or her earning capacity. See, e.g., Discovery Zone, 753 So.2d at 517 (quoting Johnson v. Alabama Power Co., 670 So.2d 39, 41-42 (Ala.Civ.App.1993)). However, in applying the return-to-work statute in Discovery Zone, Perneo Aeroplex, and Lanthrip, this court applied caselaw that predated the enactment of the statute.
“Before 1992, when the return-to-work statute was enacted, see Ala. Acts 1992, Act No. 92-537, § 17, Alabama caselaw held that, when an injured employee returned to work earning the same or higher wages, those facts raised a presumption that the employee had not sustained a loss of earning capacity, which presumption could be rebutted by evidence independently showing incapacity or explaining away the post-injury earnings as an unreliable indicator of earning capacity. See, e.g., Goodyear Tire & Rubber Co. v. Downey, 266 Ala. 344, 96 So.2d 278 (1957); and United States Steel Mining Co. v. Riddle, 627 So.2d 455 (Ala.Civ.App.1993) (applying pre-1992 law). Because caselaw allowed the presumption to be easily rebutted, injured employees routinely received compensation for loss of earning capacity despite having experienced no actual wage loss. See 1 Terry A. Moore, Alabama Workers’ Compensation §§ 13:40-13:51 (1998). Apparently, the legislature concluded that the caselaw allowing employees to receive compensation based on loss of earning capacity, despite the fact that their injuries did not immediately result in reduced wages, should be superseded. In order to limit compensation in cases in which an injured employee returns to work earning the same or higher wages following a permanent nonscheduled injury, the legislature resolved that, in such cases, the employee’s degree of physical impairment, and not his or her loss of earning capacity, should be the measure for compensation. See T. Moore, supra, at § 13:51. Any reading of the return-to-work statute that restores the applicability of caselaw regarding the presumption of a loss of earning capacity created by an employee’s returning to work earning the same or higher wages would be totally inapposite to the purpose of the statute. See Ala. Acts 1992, Act No. 92-357, § 1 (requiring workers’ compensation laws to be construed to effect their purposes).
“The return-to-work statute does not create any presumption that an employee has not sustained a loss of earning capacity. Rather, the return-to-work statute conclusively states that, when an employee returns to work after reaching maximum medical improvement and the employee is earning the same or higher wages, loss of earning capacity shall not be considered in assessing the compensation due the employee for any permanent disability. Upon concluding that the return-to-work statute governs the amount of compensation due, a trial court need not undergo any analysis to determine whether an employee’s post-maximum-medical-improvement earnings reliably indicate the earning capacity of the employee because earning capacity is not even at issue. To the extent that Discovery Zone, Perneo Aeroplex, and Lanthrip construe the return-to-work statute incorrectly by applying pre-statute caselaw indicating that a return to work at the same or a higher wage creates only a presumption that the employee has suffered no loss of earning capacity, those cases are overruled.
Under the return-to-work statute, an employee may later petition for an adjustment of his or her compensation based on loss of earning capacity if the employee loses his or her employment for one of the reasons enumerated in the statute. See Ala.Code 1975, § 25-5-57(a)(3)i.(i) [through] (v). However, that situation does not apply to this case.”

Grace v. Standard Furniture Mfg. Co., 54 So.3d 909, 913-14 (Ala.Civ.App.2010).

Malone argues that § 25-5-57(a)(3)i. controls the determination of her award of permanent-partial-disability benefits because that provision is more specific than § 25-5-57(c)(3). This court has explained:

“ ‘Statutes should be construed together so as to harmonize the provisions as far as practical.’ Ex parte Jones Mfg. Co., 589 So.2d 208, 211 (Ala.1991). ‘In the event of a conflict between two statutes, a specific statute relating to a specific subject is regarded as an exception to, and will prevail over, a general statute relating to a broad subject.’ Id.”

Alabama Dep’t of Revenue v. National Peanut Festival Ass’n, 11 So.3d 821, 829-30 (Ala.Civ.App.2008). See also Crawford v. Springle, 631 So.2d 880, 882 (Ala.1993) (“Where statutes in pari materia are general and specific, the more specific statute controls the more general statute.”); Bald win Cnty. v. Jenkins, 494 So.2d 584, 588 (Ala.1986) (“Where two statutes are related to the same subject and embrace the same matter, a specific or particular provision is controlling over a general provision.”); State v. Franklin Cnty. Coop., Inc., 464 So.2d 120, 123 (Ala.Civ.App.1985) (“A specific provision of a statute is controlling over a more general provision in the same statute.”); and Green v. Fairfield City Bd. of Educ., 365 So.2d 1217, 1220 (Ala. Civ.App.1978) (“[A] specific or particular provision is controlling over a general provision.”).

Malone also points out that § 25-5-57(a)(3)i. is rendered meaningless under the interpretation of § 25-5-57(c)(3) advocated by Steelcase and adopted by the trial court in this case. See Ex parte Children’s Hosp. of Alabama, 721 So.2d 184, 191 (Ala.1998) (“ ‘ “There is a presumption that every word, sentence, or provision [of a statute] was intended for some useful purpose, has some force and effect, and that some effect is to be given to each, and also that no superfluous words or provisions were used.” ’ ”).

The legislature enacted § 25-5-57(a)(3)i. to supersede the law regulating the amount of permanent-partial-disability compensation owed to an employee who, upon reaching MMI, returns to work making the same or higher wages. See Grace v. Standard Furniture Mfg. Co., 54 So.3d at 913. The legislature recognized that judicial construction of the part of the Act addressing permanent partial disability had allowed many employees to recover permanent-partial-disability benefits for loss of earning capacity even though those employees would not experience any actual wage loss during the 300-week permanent-partial-disability period. See 1 Terry A. Moore, Alabama Workers’ Compensation §§ 13:40-13:51 (West 1998). To avoid that situation, the legislature resolved that injured employees who have returned to work making the same or higher wages would no longer receive benefits based on “vocational disability,” or loss of earning capacity, but would be limited to permanent-partial-disability benefits as measured by their “physical impairment.” See Grace, supra.

“Physical-impairment” benefits under the return-to-work statute are analogous to benefits for loss, or loss of use, of a scheduled member, which do not depend in any manner on an employee’s wage loss or impairment of earning capacity. See Leach Mfg. Co. v. Puckett, 284 Ala. 209, 224 S®.2d 242 (1969). Those benefits, like scheduled benefits, should be payable based on the physical disability to the body, regardless of whether an employee is receiving full wages during the benefit period. Id. The payment of full wages may reflect that an employee has not sustained any loss of earning capacity, but the legislature has specifically provided in the return-to-work statute that the court shall not consider that evidence, which relates solely to the degree of “vocational disability.”

Notably, the legislature could have drafted the return-to-work statute to completely eliminate any right to permanent-partial-disability benefits until actual wage loss occurs. See T. Moore, supra, at § 13:54. However, the legislature evidently decided that an employee with a permanent physical impairment not otherwise covered by the schedule “should receive some remedy in return for sacrificing the right to sue the employer for common-law damages.” Id. That remedy would be completely eradicated if § 25-5-57(c)(3) applied to cases in which an employee has returned to the employment in which he or she was injured and earns the same or higher wages. Under such circumstances, an employee would never receive physical-impairment benefits because his or her compensation would always be completely offset by the salary credit. In assessing the physical impairment of an employee, the court would be undertaking a futile hypothetical exercise. Compensation would be payable only if and when an employee lost his or her employment (for reasons not enumerated in the return-to-work statute) and suffered an actual wage loss, and, at that point, the return-to-work statute provides, compensation would not be based on physical impairment, but on loss of earning capacity. The legislature obviously did not intend that the physical-impairment benefits available under the return-to-work statute would not be payable to an employee under such circumstances.

A more rational conclusion is that the legislature intended the return-to-work statute as a comprehensive and exclusive scheme to control the method for determining the amount of compensation due an employee who has returned to work making the same or higher wages after reaching MMI. Accordingly, we hold that the legislature did not intend that § 25-5-57(c)(3) would apply in situations covered by the return-to-work statute but that the two statutes have separate fields of operation. Viewing the language of § 25 — 5—57(c)(3) in isolation, it is understandable that the trial court applied the salary credit to this case. However, applying that language to this fact scenario produces an irreconcilable conflict between § 25-5-57(c)(3) and the return-to-work statute, depriving the latter of any effect. In such situations, the court must apply the more specific statute, not the more general statute. See Alabama Dep’t of Revenue v. National Peanut Festival Ass’n, 11 So.3d at 829-30. Because the trial court applied § 25-5-57(c)(3) to offset the award of physical-impairment benefits due Malone under the return-to-work statute, its judgment is due to be reversed and the case remanded for the entry of a new judgment omitting any setoff.

Accordingly, we reverse the judgment and remand the case for the trial court to enter a judgment in compliance with this opinion. The remaining arguments asserted by the parties are pretermitted.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

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

      . Given the parties’ stipulation on this issue, we disregard the finding in the judgment that Malone's "job duties were accommodated as necessary to conform with any restrictions assigned by her treating physicians."

      . After its first sentence, which is quoted, in part, earlier in this opinion, § 25 — 5—57(a)(3)i. provides, in part:
      "Notwithstanding the foregoing, if the employee has lost his or her employment under circumstances other than any of the following within a period of time not to exceed 300 weeks from the date of injury, an employee may petition a court within two years thereof for reconsideration of his or her permanent partial disability rating:
      "(i) The loss of employment is due to a labor dispute still in active progress in the establishment in which he or she is or was last employed. For the purposes of this section only, the term 'labor dispute' includes any controversy concerning terms, tenure, or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee. This definition shall not relate to a dispute between an individual worker and his or her employer.
      "(ii) The loss of employment is voluntary, without good cause connected with such work.
      "(iii) The loss of employment is for a dishonest or criminal act committed in connection with his or her work, for sabotage, or an act endangering the safety of others.
      "(iv) The loss of employment is for actual or threatened misconduct committed in connection with his or her work after previous warning to the employee.
      "(v) The loss of employment is because a license, certificate, permit, bond, or surety which is necessary for the performance of such employment and which he or she is responsible to supply has been revoked, suspended, or otherwise become lost to him or her for a cause.
      "The burden of proof is on the employer to prove, by clear and convincing evidence, that an employee’s loss of employment was due to one of the causes (i) through (v) above. At the hearing, the court may consider evidence as to the earnings the employee is or may be able to earn in his or her partially disabled condition, and may consider any evidence of, vocational disability. The fact the employee had returned to work prior to his or her loss of employment shall not constitute a presumption of no vocational impairment....”


author: THOMAS, Judge.

text:
    Ex parte ALABAMA DEPARTMENT OF PUBLIC HEALTH (In re Kathy K. Torbert v. Alabama Department of Public Health).
    2120941.
    Court of Civil Appeals of Alabama.
    Oct. 4, 2013.

      Luther Strange, atty. gen., and P. Brian Hale, asst. atty. gen. and deputy gen. counsel, Alabama Department of Public Health, for petitioner.
    Clifford C. Brady of Brady Radcliff & Brown LLP, Mobile, for respondent.
   THOMAS, Judge.

On October 28, 2011, Kathy K. Torbert filed a petition for a declaratory ruling pursuant to Ala.Code 1975, § 41-22-ll(a), with the Alabama Department of Public Health (“ADPH”), seeking an interpretation of certain of ADPH’s rules governing solid-waste collection and transportation facilities. Specifically, Torbert sought a ruling on the application of Ala. Admin. Code (ADPH), r. 420-3-5-.12(2)(a)2., and the starting and ending point of measurement for the 500-foot buffer zone the rule requires between “the area of transfer activities or storage of garbage [in a garbage-transfer station] and the nearest residence, school or recreational park.... ” ADPH, through the State Health Officer, Dr. Donald E. Williamson, issued a declaratory ruling on Torbert’s request on December 5, 2011. Pursuant to § 41-22-11(b) and Ala.Code 1975, § 41-22-20(b) & (d), Torbert appealed ADPH’s ruling to the Montgomery Circuit Court on January 6, 2012.

As required by § 41-22-20(d), Tor-bert filed a petition for judicial review in the circuit court on February 6, 2012. In March 2012, Torbert filed a motion requesting the circuit court to remand the matter to ADPH under § 41-22-20(e) “so that a factual determination can be made as to the exact distances from various points and locations of the transfer facility and locations in the immediate surrounding area and any such other factual determinations that [ADPH] deems necessary.” ADPH opposed Torbert’s motion, arguing that Torbert’s request that the matter be remanded for factual determinations “fails to recognize [the] difference between declaratory rulings and contested case proceedings.” ADPH also argued that Tor-bert’s petition for a declaratory ruling had requested that ADPH declare “ ‘the points from which the buffer zones are to be measured to comply’ ” with the applicable rule, which request, ADPH pointed out, did not involve a factual dispute. A remand to determine factual issues, argued ADPH, would turn Torbert’s petition for a declaratory ruling into a contested case.

The circuit court entered an order on July 1, 2013, remanding the matter to ADPH. ADPH filed its petition for a writ of mandamus to this court on August 8, 2013. In its petition, ADPH argues, as it did before the circuit court, that remanding a matter on an appeal of a declaratory ruling to the agency for it to make factual determinations is not permitted and that such a remand ignores the distinction between petitions for declaratory rulings and contested cases. We deny the petition.

“ ‘ “[M]andamus is a drastic and extraordinary writ that will be issued only when there is: (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.” Ex parte Horton, 711 So.2d 979, 983 (Ala.1998).’ ”

Ex parte Builders & Contractors Ass’n of Mississippi Self-Insurer’s Fund, 980 So.2d 1003, 1006 (Ala.Civ.App.2007) (quoting Ex parte Alloy Wheels Int’l, Ltd., 882 So.2d 819, 821 (Ala.2003), overruled on other grounds by Ex parte DBI, Inc., 23 So.3d 635, 657 (Ala.2009)).

Although the Alabama Administrative Procedure Act (“the AAPA”), Ala.Code 1975, § 41-22-1 et seq., does not specifically define a petition for a declaratory ruling, § 41-22-11(a) addresses petitions for declaratory rulings. That section indicates that a person substantially affected by a rule may petition an agency for a declaratory ruling and that “an agency may issue a declaratory ruling with respect to the validity of the rule or with respect to the applicability to any person, property or state of facts of any rule or statute enforceable by it....” (Emphasis added.) A contested case is, however, defined in the AAPA and is “[a] proceeding, including but not restricted to ratemaking, price fixing, and licensing, in which the legal rights, duties, or privileges of a party are required by law to be determined by an agency after an opportunity for hearing.” Ala.Code 1975, § 41-22-3(3) (emphasis added). Based on the language used to describe each form of relief, contends ADPH, a declaratory ruling may be made without a hearing, while a contested case must be decided after a hearing.

According to ADPH, the distinctions between the contested-case process and the declaratory-ruling process prevent the circuit court from having the power to remand a matter to an agency on an appeal from a declaratory ruling. However, § 41-22-11(b) states clearly that declaratory “rulings are subject to review in the Circuit Court of Montgomery County, unless otherwise specifically provided by the statute, in the manner provided in Section 41-22-20 for the review of decisions in contested cases.” Nothing in the text of § 41-22-11(b) indicates that the application of § 41-22-20 is to be altered in any way when an appeal involves a declaratory ruling as opposed to a contested case. Thus, the plain language of § 41-22-ll(b) requires and permits a circuit court considering an appeal from a declaratory ruling to follow the procedure set out in § 41-22-20.

However, ADPH contends that § 41-22-20(e), the provision upon which Torbert based her motion seeking remand of the matter to ADPH, should not apply to appeals from declaratory rulings. Section 41-22-20(e) states:

“If there has been no hearing prior to agency action and the reviewing court finds that the validity of the action depends upon disputed facts, the court shall order the agency to conduct a prompt fact-finding proceeding under this chapter after having a reasonable opportunity to reconsider its determination on the record of the proceedings.”

ADPH argues that, when one considers the remainder of the AAPA in pari materia with § 41-22-20(e), see Blackmon v. Brazil, 895 So.2d 900, 907 (Ala.2004) (quoting Ex parte Berryhill, 801 So.2d 7, 10 (Ala. 2001), quoting in turn Kirkland v. State, 529 So.2d 1036, 1038 (Ala.Crim.App.1988)) (“‘“When ascertaining legislative intent, statutes which are in pari materia ... must be interpreted as a whole in light of the general purpose of the statute.” ’ ”), it is clear that the legislature could not have intended to allow a circuit court to remand a matter on an appeal of a declaratory ruling for a hearing to resolve factual issues when, ADPH says, the procedure for issuing a declaratory ruling does not require a fact-finding hearing. Allowing the circuit court to remand the matter for a fact-finding hearing, says ADPH, will convert Torbert’s request for a declaratory ruling into a contested case without her having followed the procedures to initiate a contested case. Instead, posits ADPH, the legislature must have intended to have the circuit court apply only § 41-22-20(1?), which sets out the standard of review of an agency action, to its review of declaratory rulings. We cannot agree with ADPH.

This court has made clear that “a petition for declaratory ruling is not considered a ‘contested case’ under the [AJAPA.” Alabama Ass’n of Home Health Agencies v. ABC Home Health & Hospice of Alabama, Inc., 601 So.2d 1027, 1030 (Ala.Civ. App.1992). We agree with ADPH that the several sections of the AAPA must be construed in pari materia, but we cannot conclude that construing § 41-22-11 and § 41-22-20 in pari materia results in the conclusion that ADPH desires. That is, the recognition of a distinction between the two avenues of relief available to a party who wishes to challenge an agency’s action under a particular rule does not equate with a determination that the appeal process for a declaratory ruling, which is specifically set out in § 41-22-ll(b) as being the same as the process for the appeal of a contested case under § 41-22-20, must also differ.

Although we understand the logical underpinnings of ADPH’s argument, the clear language of § 42-22-ll(b) cannot be trumped by an appeal to reason.

“It is this Court’s responsibility to give effect to the legislative intent whenever that intent is manifested. State v. Union Tank Car Co., 281 Ala. 246, 248, 201 So.2d 402, 403 (1967). When interpreting a statute, this Court must read the statute as a whole because statutory language depends on context; we will presume that the Legislature knew the meaning of the words it used when it enacted the statute. Ex parte Jackson, 614 So.2d 405, 406-07 (Ala.1993). Additionally, when a term is not defined in a statute, the commonly accepted definition of the term should be applied. Republic Steel Corp. v. Horn, 268 Ala. 279, 281, 105 So.2d 446, 447 (1958). Furthermore, we must give the words in a statute their plain, ordinary, and commonly understood meaning, and where plain language is used we must interpret it to mean exactly what it says. Ex parte Shelby County Health Care Auth, 850 So.2d 332 (Ala.2002).”

Bean Dredging, L.L.C. v. Alabama Dep’t of Revenue, 855 So.2d 513, 517 (Ala.2003).

Section 41-22-ll(b) states that a declaratory ruling is to be reviewed “in the manner provided in Section 41-22-20 for the review of decisions in contested cases.” Section 41-22-20(e) permits a circuit court reviewing the appeal of a contested case or declaratory ruling to remand the matter to the agency if it determines that resolution of factual questions is required to judge the validity of an agency action. Thus, based on the plain language used in the relevant statutes, the circuit court’s remand order was in compliance with § 41-22-20.

ADPH further argues that Torbert failed to raise her factual dispute before ADPH in her petition for a declaratory ruling. Thus, ADPH contends, Torbert was not permitted to raise the existence of a factual issue before the circuit court. Based on this premise, ADPH argues that the circuit court was confined by § 41-22-20(j) to considering only the administrative record in deciding Torbert’s appeal. Although § 41-22-20Q) does state that a circuit court’s review of an appeal from a contested case or a declaratory ruling is “confined to the record,” that phrase is limited by the caveat “except as herein provided.” In light of the power of the circuit court to remand the matter to ADPH under § 41-22-20(e), which we have determined was properly exercised in Torbert’s appeal from the declaratory ruling, we cannot agree that the circuit court was limited to considering only the administrative record.

Based on the language of § 41-22-11(b), Torbert’s appeal was governed by § 41-22-20. The circuit court’s remand of this matter was permitted under § 41-22-20(e). ADPH has not established a clear, legal right to the relief it seeks. Accordingly, we deny ADPH’s petition for the writ of mandamus.

PETITION DENIED.

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

      . As we pointed out in Alabama State Personnel Board v. Brashears, 575 So.2d 1149, 1151 (Ala.Civ.App.1991), which involved the appeal of the dismissal of a petition for a declaratory ruling, § 41-21-20(k) also permits a circuit court considering an appeal from a declaratory ruling or contested case to remand the matter to the agency for the taking of additional evidence or for other proceedings. In its entirety, § 41-22-20 reads:
      "(k) Except where judicial review is by trial de novo, the agency order shall be taken as prima facie just and reasonable and the court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact, except where otherwise authorized by statute. The court may affirm the agency action or remand the case to the agency for taking additional testimony and evidence or for further proceedings. The court may reverse or modify the decision or grant other appropriate relief from the agency action, equitable or legal, including declaratory relief, if the court finds that the agency action is due to be set aside or modified under standards set forth in appeal or review statutes applicable to that agency or if substantial rights of the petitioner have been prejudiced because the agency action is any one or more of the following:
      "(1) In violation of constitutional or statutory provisions;
      “(2) In excess of the statutory authority of the agency;
      "(3) In violation of any pertinent agency rule;
      "(4) Made upon unlawful procedure;
      "(5) Affected by other error of law;
      "(6) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
      "(7) Unreasonable, arbitrary, or capricious, or characterized by an abuse of discretion or a clearly unwarranted exercise of discretion.”

      . Section 41-22-20(j) begins: "The review shall be conducted by the court without a jury and, except as herein provided, shall in the review of contested cases be confined to the record....”


text:
    B.K.H. v. CULLMAN COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2120581.
    Court of Civil Appeals of Alabama.
    Oct. 4, 2013.

      Andria Richter, Cullman, for appellant.
    Luther Strange, atty. gen., and Sharon E. Ficquette, gen. counsel, and Elizabeth L. Hendrix, asst. atty. gen., Department of Human Resources, for appellee.
   PER CURIAM.

On December 2, 2011, the Cullman County Department of Human Resources (“DHR”) filed a petition seeking to terminate the parental rights of T.M.S. (“the father”) and B.K.H. (“the mother”) to their minor child, A.L.S. (“the child”). The Cullman Juvenile Court (“the juvenile court”) conducted an ore tenus hearing over the course of two days, during which it admitted into evidence numerous documentary exhibits. On March 6, 2013, the juvenile court entered a judgment terminating the parents’ parental rights. The mother filed a postjudgment motion, which the juvenile court denied. Thé mother timely appealed.

We note that the father did not attend the termination-of-parental rights hearing and has not appealed the March 6, 2013, judgment. This opinion refers to the facts pertaining to the father only as they impact the discussion of the issues raised by the mother.

The record indicates that the child was born on January 27, 2009. Connie Yar-brough, a DHR supervisor, testified that on March 18, 2009, DHR received an order from the Cullman Circuit Court (“the circuit court”) requiring it to check on the child’s safety. Yarbrough explained that the father had petitioned the circuit court for an award of custody of the child, and, in doing so, he had alleged that the mother was using methamphetamine. Yarbrough testified that a DHR social worker, Cortni Miller, located the child in the custody of the father and that, the next day, Miller attended a hearing involving the parents and the child in the circuit court. Yar-brough testified that, at that hearing, the circuit court ordered each parent to submit to a drug screen. The mother tested negative for the use of illegal substances, and the father tested positive for the use of marijuana and benzodiazepine. Yar-brough testified that, after conducting an investigation to ensure the safety of the child, DHR decided to close the case at that time.

DHR again became involved with the family in August 2009 as the result of an incident in which the mother was home alone with the child and was drinking “Wild Turkey.” Carrie Martin, a DHR investigator, testified that at 1:54 p.m. on August 29, 2009, she received a telephone call to meet the family at the local emergency room. The mother admitted to Martin that she had been drinking heavily. Martin stated that the mother first told Martin that she thought someone had broken into her home and had cut her leg with a knife. However, according to Martin, the mother later admitted that she had cut herself but had not intended for the cut to be so deep. The mother’s brother, B.H., came to the hospital, and the child was placed with B.H. and his wife pursuant to a safety plan.

Miller, the social worker who had briefly been involved with the family in March 2009, was reassigned to the case in February 2010. At that time, the mother and the child were living with the mother’s mother and stepfather pursuant to a safety plan. Miller testified that, at a February 2010 meeting to formulate an Individualized Service Plan (“ISP”), the mother admitted that she would be unable to pass a drug screen because she had used marijuana with her mother two weeks earlier.

Miller also testified that, during the February 2010 ISP meeting, the mother disclosed to Miller that the mother’s stepfather had sexually abused her when she was approximately 11 years old and that, as a result, she had been placed in foster care in Georgia. Miller testified that, after that accusation, of which she did not believe the previous social worker had been aware, the mother’s mother and stepfather were no longer considered appropriate relative resources for the child and a safety plan that included the mother and the child living with them was also no longer appropriate. Therefore, the mother and the child went to live with B.H.

Miller stated that in April 2010 she learned that the mother was no longer living in the home with B.H. and the child and that B.H. informed her that the mother was living with her father. Miller testified that, when she went to the home of the mother’s father, she discovered that the father, who had been recently released from incarceration, was also living in that home. Miller described the house as cluttered and messy. Miller stated that, when asked, the mother informed her that neither the mother nor the father could pass a drug screen, and, in fact, both parents failed a drug screen. Also at that time, B.H. was in the process of divorcing his wife and was unable to continue to provide a home for the child. When the mother informed Miller that she could not identify any other possible relative resources, the child was placed in foster care on April 22, 2010.

On April 23, 2010, the day after the child was placed in foster care, the father committed domestic violence against the mother. Miller testified that the parents were intoxicated during that confrontation. Miller also stated that the mother had informed her that the reason for the April 23, 2010, dispute that led to domestic violence was the father’s frustration with the mother for what he perceived was her conduct resulting in the authorities again asking him to submit to drug testing; the results of that testing had been reported to the police for the purpose of determining whether the father had violated the terms of his probation.

Miller stated that in May 2010 the mother informed her that when the mother and the father were together they usually did drugs, drank alcohol, and fought. Miller testified that, during that conversation, she attempted to emphasize to the mother the importance of changing her circumstances and attempting to meet the needs of the child. Miller testified, however, that, at a June 2010 hearing on the mother’s protection-from-abuse petition against the father, her observation of the mother’s conduct and demeanor led her to believe that the mother was under the influence of drugs or alcohol at that hearing. The mother remained in a relationship with the father for more than a year following the domestic-violence incident.

Miller testified that DHR offered the mother a number of services in order to assist her in stabilizing her life. The mother was offered services through a program referred to as “Family Values,” as well as training in parenting skills and budgeting. Miller testified that DHR offered the mother counseling for issues other than substance abuse and that, during the initial session, the mother was not forthcoming with the counselor. Miller stated that that counseling was not continued because the mother was not yet ready to deal with issues from her childhood.

DHR also requested that the mother submit to a substance-abuse assessment, drug screens, and substance-abuse counseling. The mother was intermittent in her compliance with the drug screens until late summer 2011. In addition to the issues addressed by the services DHR offered, DHR identified reunification goals for the mother that included obtaining employment and earning a GED.

Miller testified that the mother had a pattern of working for two to three months toward the identified reunification goals, that the mother would make progress during those periods, but that the mother would then stop cooperating or disappear. Miller explained that the mother would stop appearing for appointments and that she would be unable to locate the mother. Miller believed that some of the periods in which the mother “disappeared” were related to times in which the father was not incarcerated.

In April 2011, the mother stopped visiting the child. In August 2011, the mother was arrested on drug charges and served 90 days in jail. Miller testified that when Miller left her employment with DHR in September 2011 the child had been in foster care for 19 months and that, during that time, the mother had not made any significant progress toward stability and had recently been incarcerated on new charges.

Christy Webb, a DHR social worker, was assigned to the case from September 2011 until June 2012. When Webb was assigned in September 2011, the mother, was still incarcerated as a result of her August 2011 arrest. Webb testified that following the mother’s August 2011 incarceration DHR decided to seek to terminate the mother’s parental rights, and DHR filed its petition in December 2011. Webb testified that the mother contacted her when the mother was released from jail in December 2011; at that time, the mother had been served with the termination petition. Webb stated that in January 2012 the mother obtained employment, and at a February 2012 ISP meeting DHR arranged for supervised visitation to resume.

Webb testified that in the spring of 2012, with the exception of a positive test for the use of alcohol in March 2012, the mother made good progress toward the reunification goals and maintaining stability. The mother attended substance-abuse classes, was doing drug screens through drug court, and was visiting the child regularly. In May 2012, DHR moved the juvenile court to postpone the hearing it had scheduled on DHR’s termination petition in order to allow the mother more time to demonstrate that she could properly parent the child, and the juvenile court granted that request. In June 2012, DHR expanded the mother’s visitation to unsupervised visits on Saturdays. At approximately that same time, the mother completed substance-abuse classes.

In her testimony, the mother agreed with Miller’s characterization of her compliance with DHR’s reunification goals between 2009 and July 2011. The mother admitted that, until July 2011, she lacked stability and that she would cooperate with DHR for only a few months at a time. The mother testified, however, that she made significant changes in her life in July 2011, when she met G.D. and began a romantic relationship with him. In September 2011, the mother married G.D. (hereinafter referred to as “the husband”).

The mother testified that the husband had stayed in the relationship after the mother’s August 2011 arrest and had encouraged her to do better. The mother stated that the husband had shown her how to live a stable lifestyle and meet her obligations and responsibilities. Indeed, as already indicated, Webb’s testimony indicates that, after her release from jail in December 2011, the mother made good and continual progress toward reunification.

In June 2012, Webb was transferred to another part of DHR, and Melissa Welch was assigned to handle the case on behalf of DHR. Welch testified that the progress and stability the mother had demonstrated in the first half of 2012 continued after Welch was assigned to the case. The mother’s visitation was increased in the summer of 2012, and in October 2012 the mother began exercising weekend visitation with the child. Welch testified that, at that time, the mother was cooperative with DHR’s services, was working at a fast-food restaurant, and was participating in drug court.

The husband was also involved in drug court. The husband stated that he had been charged with possession of a controlled substance after he was found with his son’s prescription medication. The record indicates that the husband was complying with the requirements of drug court. Welch testified that the husband was very good with the child and that the child calls the husband “Dad.”

Welch explained that, as a result of the progress the mother had shown in 2012, DHR decided to attempt a “trial visit” of placing the child in the mother’s home to determine whether custody could be returned to the mother. Welch testified that, during the meetings leading up to the placement of the child with the mother, DHR workers emphasized to the mother the necessity that she remain sober when the child was placed in her home.

On November 27, 2012, DHR placed the child in the home with the mother and the husband. Welch visited the home after a few days and stated that everything seemed to be going well. Welch noted that the child had a “really strong bond” with the mother and was possibly even more bonded to the husband.

On December 8, 2012, the mother was arrested for driving under the influence (“DUI”). The mother and the husband testified that the mother had taken a few sips from another person’s drink at a family gathering, that the husband had been angry with her for doing so, and that, when they returned home after the gathering, the two had fought about the mother’s taking those drinks. After that fight, the mother left the house at approximately 9:00 p.m., and she drank alcohol with some friends. As the mother was driving home from her friends’ home at approximately 10:10 p.m., she lost control of her vehicle and wrecked. At the time of her arrest, the mother’s blood-alcohol level was .23. Following the December 8, 2012, DUI incident, the child was returned to foster care and DHR decided to proceed with seeking to terminate the parents’ parental rights.

The mother testified that she regretted the DUI incident and that she was disappointed in herself. The husband testified that he had seen the mother drink on only two occasions during their relationship, and the family gathering was one of those occasions. Both the husband and the mother testified that they did not believe the mother would behave in that manner again.

The mother testified that she had applied to several long-term rehabilitation facilities and that she had been accepted to one that did not allow her to bring the child. The mother stated that, at the time of the termination hearing, she was on the waiting list for two halfway houses that would allow her to live there with the child. She requested that the child be returned to her to live with her in one of the halfway houses. In response to questioning, the mother testified that she did not believe that she had a problem with alcohol, but, rather, that she had engaged in stupid behavior.

M.F.R., the child’s foster mother, testified that she could tell a difference in the mother in 2012 in that the mother clearly intended to do better in her life. The foster mother testified that the child informs her that he loves the mother and that the child still speaks to the mother on the telephone. When asked how she believed a termination of the mother’s parental rights would affect the child, the foster mother stated: “I can see some behavior difference already. But I think it’s going to tear him down, I’ll be truthful. I really do.”

DHR presented evidence indicating that there were relatives willing or able to provide a placement for the child. No useful purpose would be served by detailing most of the evidence on that issue. However, at the termination hearing, the evidence on this issue tended to focus on B.H., the mother’s brother. During the pendency of this action, the mother’s brother, B.H., expressed an interest in serving as a resource for the child. However, B.H. was going through a divorce and could not take the child in 2010, so the child was placed in foster care. In December 2012, B.H. had remarried. Welch testified that she asked at that time if B.H. could serve as a placement for the child and that B.H. had told her that he would discuss it with his new wife. Welch stated that B.H. did not call her back and that he did not return two additional calls she made to him after the child had been returned to foster care. B.H. did not appear at the termination hearing, and the mother did not testify that B.H. was willing and able to serve as a placement for the child.

Welch testified that the child had been in the same foster home during the time that he was in foster care. However, the foster mother was not going to adopt the child, and DHR planned to gradually introduce the child to a potential adoptive family. Welch also testified that, at the time of the termination hearing, the husband was still visiting the child on some weekends.

At the conclusion of the termination hearing, the juvenile court stated that the decision to terminate was difficult because it was clear that, during certain periods, the mother had done well. However, the juvenile court noted that the child had been in foster care for three years and that, given the history of the case, there was no guarantee that an incident similar to the December 8, 2012, DUI incident would not occur again. The juvenile court concluded that it was not in the child’s best interests to spend further time in foster care. See S.B.L. v. Cleburne Cnty. Dep’t of Human Res., 881 So.2d 1029, 1032 (Ala. Civ.App.2003) (“The paramount concern of a court in termination-of-parental-rights proceedings is the best interests of the child.”). In its March 6, 2013, termination judgment, the juvenile court found that the child was dependent and that both the mother and the father had failed to adjust their circumstances to meet the needs of the child.

The grounds for terminating parental rights are set forth in § 12-15-319, Ala.Code 1975. Our juvenile courts use a two-pronged test to determine whether to terminate parental rights:

“A juvenile court is required to apply a two-pronged test in determining whether to terminate parental rights: (1) clear and convincing evidence must support a finding that the child is dependent; and (2) the court must properly consider and reject all viable alternatives to a termination of parental rights.”

B.M. v. State, 895 So.2d 319, 331 (Ala.Civ. App.2004) (citing Ex parte Beasley, 564 So.2d 950, 954 (Ala.1990)). Clear and convincing evidence is “ ‘[ejvidence that, when weighed 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.’ ” L.M. v. D.D.F., 840 So.2d 171, 179 (Ala. Civ.App.2002) (quoting § 6-ll-20(b)(4), Ala.Code 1975).

On appeal, the mother argues that the evidence did not support the termination of her parental rights. In her own testimony, the mother admitted that she exhibited instability and did not maintain any consistent effort to reunite with the child until the summer of 2011, when the child had been in foster care for over a year. However, the mother made significant changes in her life after her August 2011 arrest, which coincided with her meeting and marrying the husband. Upon her release from incarceration following the August 2011 arrest, the mother began, in early 2012, to adjust her circumstances to meet the child’s needs. At that time, however, DHR had already filed the petition seeking to terminate her parental rights. Given the progress being made by the mother in the spring of 2012, DHR agreed to postpone the hearing on that petition in order to afford the mother additional time to achieve reunification. The mother continued her reunification efforts and completed substance-abuse classes and attended counseling.

Over the course of 2012, in recognition of the progress the mother was making, DHR increased the mother’s visitation substantially and eventually attempted to return custody of the child to the mother. The child was returned to DHR’s custody following the mother’s DUI arrest in December 2012.

DHR argues, in support of affirming the termination judgment, that the child had been out of the mother’s custody for an extended period and that the child needed permanency. We are not unsympathetic to that argument, and we share the concerns expressed by DHR and the juvenile court about the child’s need for permanency.

However, in this case, the mother made significant progress, albeit late in the action, toward reunification. In response to the mother’s efforts, DHR postponed prosecuting its termination action to afford the mother additional time to achieve her reunification goals. The mother made such significant progress that DHR placed the child in her home.

Also, the evidence in this case indicates that the mother and the child have a strong emotional bond and that the child shares a similar bond with the mother’s husband. The evidence indicates that the child would be devastated by the termination of the mother’s parental rights. The foster mother testified that it would “tear him down.” The husband and the mother each testified that the incident leading to the DUI arrest was out of character for the mother, and the mother testified she was attempting to seek professional assistance to address her conduct that resulted in that incident.

The paramount consideration in any action involving the termination of parental rights is the best interests of the child. A.J.H.T. v. K.O.H., 983 So.2d 394, 399 (Ala.Civ.App.2007).

“Although a child’s parents have a prima facie right to custody, the paramount concern in these proceedings is the child’s best interests. Mitchell v. State Dep’t of Human Resources, 513 So.2d 647 (Ala.Civ.App.1987). In determining the child’s best interests, the court must examine-whether the parents are physically, financially, and mentally able to provide for the child. Mitchell. If clear and convincing evidence reveals that the parents cannot, or are unwilling to, discharge these responsibilities, parental rights may be terminated. Mitchell; § 26-18-7 [now § 12-15-319, Ala.] Code 1975.”

J.V. v. State Dep’t of Human Res., 656 So.2d 1234,1235 (Ala.Civ.App.1995).

This court has carefully considered the evidence in the record, especially the evidence concerning the child’s bond with the mother and the possible effect on him of a termination of the mother’s parental rights. Our supreme court has recently explained:

“ ‘ “[T]he termination of parental rights is a drastic measure, and we know of no means by which those rights, once terminated, can be reinstated. The evidence in [this] case[] ‘does not rise to the level of being so clear and convincing as to support termination of the parental rights of the mother, such action being the last and most extreme disposition permitted by statute.’ ” ’
“D.O. v. Calhoun County Dep’t of Human Res., 859 So.2d 439, 445 (Ala.Civ. App.2003) (quoting V.M. v. State Dep’t of Human Res., 710 So.2d 915, 921 (Ala. Civ.App.1998)).”

Ex parte A.S., 73 So.3d 1223, 1230 (Ala. 2011).

We conclude that, given the unique facts of this case, the juvenile court erred in determining that at the time of the termination judgment the evidence was clear and convincing that the mother was unable or unwilling to discharge her parental responsibilities and that her conduct or condition was unlikely to change in the foreseeable future. See § 12-15-319(a), Ala. Code 1975. In reaching our holding in this case, we note that we do not condone or minimize the significance of the mother’s conduct resulting in her arrest in December 2012 on DUI charges. It is with the evidence concerning that conduct that this court has struggled in reaching its holding in this appeal. However, after careful consideration, we believe that the mother should be afforded an opportunity to demonstrate whether that conduct was a onetime mistake in an otherwise excellent effort toward reunification or a return to a pattern of conduct that is destructive to her relationship with the child and his need for stability. In the circumstances of this case, the best interests of the child would be served by affording the mother that opportunity.

In so holding, we note that this court is simply holding that, at the time of the termination hearing, clear and convincing evidence did not demonstrate that the termination of the mother’s parental rights was in the child’s best interests. This court is not foreclosing the possibility that DHR might proceed, based on circumstances that have occurred during the pen-dency of this appeal or might occur after the release of this opinion, to again seek the termination of the mother’s parental rights if the mother’s situation and conduct deteriorate such that the child’s best interests would be served by the termination of her parental rights. See R.L.M.S. v. Etowah Cnty. Dep’t of Human Res., 37 So.3d 805, 808 (Ala.Civ.App.2009) (“[Wjhen deciding whether grounds to terminate parental rights exist, the juvenile court is not limited to evidence of current conditions; it may also consider the past history of the parent.”); T.D.K. v. L.A.W., 78 So.3d 1006, 1010 (Ala.Civ.App.2011) (“We have also held that the juvenile court may properly consider past history and present circumstances in a termination proceeding.”).

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

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

DONALDSON, J., dissents, without writing.

      . It appears that the mother's visitation was discontinued after the child returned to foster care after the DUI incident.