author: ISHEE, J.,

text:
    Paythan G. WHIDDON, Appellant v. SOUTHERN CONCRETE PUMPING, LLC and the Gray Insurance Company, Appellees.
    No. 2011-WC-01133-COA.
    Court of Appeals of Mississippi.
    April 23, 2013.

      Leonard Brown Melvin III, Chase Ford Morgan, Hattiesburg, attorneys for appellant.
    Doris Theresa Bobadilla, Timothy Kevin Everhart, Gulfport, attorneys for appel-lees.
    Before IRVING, P.J., ISHEE and ROBERTS, JJ.
   ISHEE, J.,

for the Court:

¶ 1. In August 2009, Paythan Whiddon was injured during the course of his employment with Southern Concrete Pumping LLC (Southern Concrete). Due to the accident, he suffered a lower-back injury. In September 2009, Whiddon filed a petition to controvert with the Mississippi Workers’ Compensation Commission (the Commission). He sought compensation for his loss of wage-earning capacity. The administrative judge (AJ) found that Whiddon had a temporary occupational disability, but that he did not have permanent loss of wage-earning capacity. In November 2010, Whiddon appealed the AJ’s decision to the Commission. In July 2011, the Commission affirmed the decision of the AJ. Whiddon now appeals arguing the Commission erred when it failed to find he had sustained a permanent loss of wage-earning capacity as a result of his work injury. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Whiddon was employed by Southern Concrete as a concrete-pump operator. On August 7, 2009, Whiddon was acting within the course and scope of his employment when he was involved in a motor-vehicle accident. While driving a concrete-pump truck in Hattiesburg, Mississippi, Whiddon’s vehicle was rear-ended by another vehicle.

¶ 3. Immediately after the accident, Whiddon began experiencing pain in his lower back and left leg. Because of the pain, Whiddon went to the Forrest General Hospital emergency room on the afternoon of the accident. At the emergency-room, x-rays were taken and showed moderate degenerative joint disease at the L5-S1 region. Whiddon was diagnosed with lumbar strain, and was told to follow up with his general physician.

¶ 4. The pain stemming from this accident was not the first time Whiddon had experienced back pain. In February 1998, Whiddon was involved in a different motor-vehicle accident. Following that accident, Whiddon experienced numbness and tingling in his legs and lower-back pain. He was treated by Dr. Michael Fromke at the Hattiesburg Clinic. The computed tomography scans (CT scans) taken after the accident showed left L4 and L3 transverse process fractures. The magnetic-resonance-imaging test (MRI) showed a minor bulge at L5 with degenerative changes within the disc. However, Dr. Fromke opined that this was caused by chronic degenerative changes associated with age and was unrelated to the accident.

¶ 5. Whiddon then began seeing Dr. Da-rell O’Quinn regarding his back pain. He consulted Dr. O’Quinn on November 15, 2002; April 7, 2003; June 23, 2005; December 5, 2005; and August 18, 2006. At each consultation, he received some form of pain management for his lower-back pain. On February 20, 2007, Dr. O’Quinn ordered an MRI, which revealed a disc bulge and degenerative disc disease at L5-Sl. Whiddon saw Dr. O’Quinn three more times in 2007 and again in October 2008, his final visit before the August 2009 accident.

¶ 6. Whiddon then saw Dr. O’Quinn again for his current injury. An MRI revealed a herniated disc with bulging toward the left side at L5-S1. Thereafter, Whiddon was treated by Dr. Michael Patterson at Southern Bone & Joint Specialists. Dr. Patterson recommended epidural-steroid injections at L5-S1 and physical therapy. On January 18, 2010, after receiving a series of epidural-steroid injections and physical therapy, Dr. Patterson determined that Whiddon had reached maximum medical improvement.

¶ 7. On February 8, 2010, and February 9, 2010, Whiddon underwent a functional-capacity evaluation performed by Robert Bishop. Bishop found that Whiddon had a two percent whole-person impairment. He concluded that Whiddon had the ability to perform at a medium work level with certain restrictions — including only occasional bending and crouching, and restricted continuous lifting. Based on this evaluation, Dr. Patterson released Whiddon to return to work on February 18, 2010.

¶ 8. Whiddon had been laid off by Southern Concrete in September 2009 due to decreased business. Therefore, after he was released to work, Whiddon had to seek alternative employment. He then began working for Nichols Concrete Equipment Company (Nichols Concrete), a company he had worked for previously. In his current position as a concrete-pump operator, Whiddon is paid $19 per hour. Whid-don claimed that he averages thirty-two to thirty-five hours per week; however, he has worked as many as sixty-six hours in one week. From February 27, 2010, through September 18, 2010, Whiddon averaged thirty-nine hours per week. Whid-don had been earning approximately $1,200 per week while working for Southern Concrete Pumping. However, he earned extra income while working there because he had additional job duties including the dispatching and management of personnel and equipment, sales work, supervision of three other pump-truck operators, and work involving the repair of the concrete-pump trucks.

¶ 9. On September 21, 2009, Whiddon filed a petition to controvert with the Commission. On September 28, 2010, a hearing was held before the AJ. Southern Concrete and, its insurer, Gray Insurance Company, admitted the compensability of the injury; however, the parties disputed the extent of Whiddon’s permanent occupational disability and his loss of wage-earning capacity resulting from the injury. Whiddon asserted that he still experiences lower-back pain and numbness in his left leg as a result of the injury, which prevents him from earning income equivalent to his pre-injury wage.

¶ 10. Donald E. Woodall, a vocational, rehabilitation, and disability consultant, testified during the hearing. He opined that Whiddon was currently unable to perform the duties of his pre-injury job. Based on a thirty-hour work week, he found that Whiddon had lost $630 per week in income. When calculating lost wages using a forty-hour work week, Whiddon lost income in the amount of $440 per week. Woodall also noted that if Whiddon were to lose his current job, his access to jobs making $19 per hour was limited, and his post-injury labor market had diminished by twenty-five percent.

¶ 11. Bruce Brawner, a vocation-rehabilitation consultant, also testified at the hearing. Each of the three post-injury work scenarios presented by Brawner showed Whiddon earning less at his current job than he did while working for Southern Concrete; however, Brawner opined that Whiddon could seek other employment and earn pay equivalent to his pre-injury income. Thus, although Whid-don is currently earning less than he made prior to the accident, Brawner opined that this decrease in pay is not related to his injury.

¶ 12. On November, 8, 2010, the AJ entered an order. The AJ found that Whiddon is better educated than the average Mississippian because has a high-school diploma and several years of college. Whiddon has also had many years of experience in semiskilled and skilled work, including driving eighteen-wheeler and flatbed trucks, data entry, dispatching, and sales work. This experience increased his chances of finding gainful employment. The AJ further noted that most of this work has not required him to do more than the medium-exertion work suggested by the functional-capacity evaluation. In addition, the AJ considered Whiddon’s long history of intermittent lower-back pain and left-leg numbness.

¶ 13. In the order, the AJ determined that “[t]he great weight of the medical evidence does not support Mr. Whiddon’s claim that he could not return to the work he was doing at Southern Concrete [].” The AJ further found that Whiddon’s current injury does not differ in any substantial way from the injury he sustained in 1998. Finally, the AJ noted that Whiddon chose to work as a concrete-pump operator for Nichols Concrete as opposed to finding a job utilizing his other skills, which would have commanded a higher wage.

¶ 14. Ultimately, the AJ held that Whiddon had a compensable injury to his lower back and that he was temporarily totally disabled from August 7, 2009, until February 18, 2010. Southern Concrete was ordered to pay $414.29 per week for that time period and to provide medical services and supplies as required by the nature of his injury. Accordingly, Southern Concrete and Gray Insurance Company paid $11,020.12 for temporary total disability benefits and provided all medical services and supplies in the amount of $7,243.52.

¶ 15. On November 18, 2010, Whiddon filed a petition for review before the Commission. The Commission issued its order on July 14, 2011, affirming the decision of the AJ. Whiddon now appeals.

DISCUSSION

¶ 16. Whiddon argues the Commission erred when it failed to determine that he had sustained a permanent loss of wage-earning capacity as a result of his work injury. He asserts the evidence presented clearly demonstrated that he had sustained a permanent loss of wage-earning capacity due to his work-related injuries. Whiddon cites to the testimony of the vocational experts, Brawner and Woo-dall, as support for this proposition. According to Whiddon, they both agreed that he suffered some loss in wage-earning capacity. Finally, he argues his preexisting back problems should not disqualify him from receiving disability compensation.

¶ 17. In workers’ compensation cases, our scope of review “is limited to a determination of whether the decision of the Commission is supported by substantial evidence.” F & F Constr. v. Holloway, 981 So.2d 329, 331 (¶ 8) (Miss.Ct.App.2008) (citation omitted). “We will only reverse the Commission’s rulings when its findings of fact are unsupported by substantial evidence, matters of law are clearly erroneous, or the decision was arbitrary and capricious.” Id. (citations omitted). We will find a ruling is clearly erroneous if, after reviewing the entire evidence, we are “left with the definite and firm conviction that a mistake has been made by the Commission in its findings of fact and in its application of the [Workers’ Compensation] Act.” Id. at (¶ 9) (citation omitted). “Where no evidence or only a scintilla of evidence supports a ... Commission decision, this Court does not hesitate to reverse.” Id.

¶ 18. Mississippi Code Annotated section 71-3-7 (Supp.2012) states: “Compensation shall be payable for disability or death of an employee from injury or occupational disease arising out of and in the course of employment, without regard to fault as to the cause of the injury or occupational disease.” Disability is defined as “incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or other employment, which incapacity and the extent thereof must be supported by medical findings.” Miss.Code Ann. § 71-3 — B(i) (Rev.2011). When determining the degree of disability, we must consider “(1) actual physical injury and (2) loss of wage-earning capacity.” Omnova Solutions, Inc. v. Lipa, 44 So.3d 935, 940 (¶ 16) (Miss.2010) (citing Spann v. Wal-Mart Stores, Inc., 700 So.2d 308, 312-13 (¶20) (Miss.1997)).

¶ 19. In workers’ compensation law, there are two type of disabilities: (1) a functional disability, otherwise known as a medical disability, and (2) an industrial disability, otherwise known as an occupational disability. Union Camp Corp. v. Hall, 955 So.2d 363, 372 (¶ 41) (Miss.Ct. App.2006). A functional disability refers to a physical impairment. Id. (citing Weatherspoon v. Croft Metals, Inc., 853 So.2d 776, 779 (¶ 11) (Miss.2003)). An industrial disability “refers to the manner in which a claimant[’s] functional ... disability affects the claimant’s ability to perform the duties of his employment.” Id. A claimant may suffer a functional disability but have no industrial disability if the functional disability does not impede his ability to perform the duties of his employment. Robinson v. Packard Elec. Div., Gen. Motors Corp., 523 So.2d 329, 331 (Miss.1988) (citation omitted). Likewise, a claimant may have a minor functional disability that results in a much greater industrial disability when applied to the duties of employment. Id.

¶20. Here, there is no dispute that Whiddon suffered an on-the-job injury, and thus, a functional disability. The issue is whether the injury has resulted in the loss of wage-earning capacity and constitutes an industrial disability. The only evidence Whiddon presented to prove his loss of wage earning-capacity is that he is currently earning less income that he did before the injury. While it has been unequivocally proven that Whiddon currently earns a lower income that he did prior to the 2009 motor-vehicle accident, he has not shown that the lower income is a result of his functional disability. He was unable to resume working at his previous position due to layoffs made by the company based on economic hardships. Had the position still been open, testimony revealed that Whiddon could have performed the required duties of his employment.

¶ 21. Moreover, Whiddon has been having lower-back pain and left-leg pain and numbness since his prior accident in February 1998. The AJ found that while the more recent accident may have temporarily caused significant pain, his injury is essentially the same injury he has had since 1998. Accordingly, he has had lower-back pain and left-leg pain and numbness since 1998, but he has nonetheless been able to perform the duties of his employment at Southern Concrete. Thus, although Whiddon argues his prior injury should not prevent him from receiving disability compensation, it is not the injury alone that prevents recovery-it is the evidence that he could perform the required work activities while having an almost identical injury.

¶ 22. Additionally, Whiddon earns less at Nichols Concrete because he has fewer tasks than he had while working for Southern Concrete. Those additional duties at his former employment included dispatching and management of personnel and equipment, sales work, supervision of three other pump-truck operators, and repairing concrete-pump trucks. His injury would not have affected his ability to do most, if not all, of these additional duties.

¶ 23. Brawner testified that Whiddon could earn substantially more income than he makes as a concrete-pump operator at Nichols Concrete. Whiddon has had experience in a variety of positions. Brawner testified that Whiddon could earn at least what he made working for Southern Concrete if he pursued a position in sales or finance. Brawner also found thirteen job openings available at the time of his testimony that were within Whiddon’s recommended work restrictions. As the AJ noted, Whiddon

has made no efforts whatsoever to branch out and look for a higher-paying job in sales or management, for instance, where he could earn the same or more than he was making at Southern Concrete [ ] — in other words, to look for ‘other employment’ as specified in the definition of occupational disability contained in the workers’ compensation law.

The evidence shows that Whiddon could have returned to his previous job had there been a job available, and that he could have found employment earning the same amount of pre-injury income. Accordingly, we find the Commission’s decision finding there was no loss of wage-earning capacity is supported by substantial evidence. Because there is substantial evidence supporting the Commission’s decision, we find that this argument is without merit, and affirm.

¶ 24. THE JUDGMENT OF THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


source: Caselaw Access Project

author: BOLIN, Justice.

license: Public Domain

text:
    A.G. and K.G. v. Ka.G. and N.G.
    1111479.
    Supreme Court of Alabama.
    Dec. 7, 2012.
    Randall W. Nichols and Anne Lamkin Durward of Massey, Stotser & Nichols PC, Birmingham, for appellants.
    Submitted on appellants’ brief only.
   BOLIN, Justice.

A.G. and K.G. (“the paternal grandparents”) appeal from a judgment of the Cull-man Juvenile Court (“the juvenile court”) denying their petition alleging dependency as to A.L.G. (“the child”) without holding an evidentiary hearing. We reverse and remand.

Facts and Procedural History

The child was born in 2009. That same year, N.G. (“the father”) and Ka.G. (“the mother”) filed for divorce. According to the paternal grandparents, the child lived with them from June 2010 to July 2011 following an earlier proceeding. The child was returned to the parents in July 2011, pending a custody determination in the divorce proceeding. The father was awarded temporary custody in February 2012, with the mother having visitation privileges. In June 2012, the mother was awarded temporary custody of the child after the father failed a drug test. The hearing on the divorce was scheduled for September 6, 2012.

On June 25, 2012, the paternal grandparents filed a petition with the juvenile court, alleging that the child was in “need of supervision, treatment, rehabilitation, care or the protection of the State.” The dependency petition was verified in the presence of the juvenile-court intake officer. The paternal grandparents attached to the petition a report from a physician indicating an irregularity to the child’s genitalia and also indicating “inappropriate sexual contact” consistent with child abuse. The paternal grandparents also attached a letter from a licensed counselor who had interviewed the child. In that letter, the counselor stated that the child had told her that on a visit to the mother’s house (which occurred in March 2012), a man spending the night with her mother “had touched [the child] in [the] front area and pinched [the child] on the butt.”

On June 25, 2012, the juvenile court, without holding a hearing, entered an order, denying the dependency petition on the basis that there was a pending divorce proceeding in the circuit court:

“The Court having been made aware of the pending DR 2009-504.01 matter [the divorce] between the parents. Further, that the Hon. Don Hardeman has entered a Temporary Order on June 22, 2012 that awarded temporary custody to the mother after a report from the [guardian ad litem] and licensed psychologist, this Court does not find an allegation of dependency that could support the maintenance of this action in the Juvenile Court. This matter shall be taken up in the Circuit Court on September 6, 2012 for a trial on the merits.”

Later that day, on June 25, 2012, an attorney who had been retained for the child filed a motion in the juvenile court seeking an emergency hearing for immediate removal of the child from the mother’s residence. The child’s attorney stated that, after a visitation with the mother, the child had disclosed to a babysitter, the counselor, the father, and the Child Advocacy Center that the mother’s friend “Jesse” had bitten the child’s “private area.” The child’s attorney alleged that placing the child in the mother’s custody would be putting the child back in the home where the abuse had occurred. The child’s attorney further alleged that the Department of Human Resources was conducting an investigation of the sexual-abuse allegations.

Still later on June 25, 2012, the juvenile-court judge entered an order recusing himself from the case. On June 26, 2012, the other juvenile-court judge in Cullman County also entered an order of recusal.

On the basis of local rule in Cullman County, Judge Don Hardeman, the presiding judge in the circuit court, was assigned the juvenile case when the juvenile-court judges recused themselves. On June 26, 2012, Judge Hardeman, sitting as a juvenile-court judge, entered an order stating: “A review of the file indicating that there is no underlying case pending, the Emergency Motion for Immediate Removal of the Minor Child from Current Placement is therefore denied for lack of jurisdiction.”

On June 27, 2012, the child’s attorney filed a motion to reconsider, arguing that the juvenile court has exclusive jurisdiction of proceedings in which a child is alleged to be dependent and that it was a physician’s impression that the child’s injuries were consistent with child abuse that allegedly occurred at the mother’s house.

On July 2, 2012, Judge Hardeman, sitting as a juvenile-court judge, entered an order denying the motion to reconsider on the grounds that there was no dependency petition pending, that no filing fee had been paid on the child’s attorney’s motion, and that, without payment of the appropriate filing fee, the juvenile court was without jurisdiction to consider the motion.

That same day, the paternal grandparents filed a motion to reconsider, which was subsequently denied by operation of law. On July 9, 2012, the paternal grandparents filed an appeal. While the appeal was pending, Judge Hardeman entered an order recusing himself from the case.

Discussion

The paternal grandparents argue that the juvenile court erred in denying their petition for dependency without conducting an evidentiary hearing.

Subject to two exceptions, when a circuit court acquires jurisdiction regarding an issue of child custody pursuant to a divorce action, it retains jurisdiction over that issue to the exclusion of the juvenile court. C.D.S. v. K.S.S., 963 So.2d 125, 129 (Ala.Civ.App.2007); Ex parte K.S.G., 645 So.2d 297, 299 (Ala.Civ.App.1992). Those two exceptions are: 1) when emergency circumstances exist that threaten the immediate welfare of the child; and 2) when a separate dependency action is instituted. M.P. v. C.P., 8 So.3d 316 (Ala.Civ.App.2008). The second exception is clearly applicable here.

The juvenile court is a court of limited jurisdiction, exercising exclusive original jurisdiction in proceedings in which a child is alleged to be dependent or in need of supervision. § 12-15-114(a), Ala.Code 1975. Once the dependency jurisdiction of the juvenile court has been properly invoked, the juvenile court has an imperative statutory duty to conduct a hearing to determine the dependency of the child. T.K. v. M.G., 82 So.3d 1 (Ala.Civ.App.2011); L.B. v. R.L.B., 53 So.3d 969 (Ala.Civ.App.2010). Pursuant to § 12-15-129, Ala.Code 1975, a hearing on the merits of the petition is required to determine if the child is, in fact, dependent. L.B. v. R.L.B., 53 So.3d at 973.

“The [Alabama Juvenile Justice Act, § 12-15-101 et seq., Ala.Code 1975,] specifically provides that the dependency jurisdiction of the juvenile court is triggered by the filing of a petition with a juvenile-court intake officer alleging facts sufficient to prove the dependency of the child. See §§ 12-15-114(a) and 12-15-120(a).” Montgomery Cnty. Dep’t of Human Res. v. McDermott, 74 So.3d 455, 458 (Ala.Civ.App.2011). “A child is dependent if, at the time a petition is filed in the juvenile court alleging dependency, the child meets the statutory definition of a dependent child.” Ex parte L.E.O., 61 So.3d 1042, 1046 (Ala.2010). Section 12-15-102(8)1, Ala.Code 1975, defines a dependent child as, among other things, one whose parent allows the child to be subjected to abuse. If the allegations in the dependency petition are denied by the parent or if the parent fails to respond, the juvenile court shall hear evidence on the petition, and, if the court finds that the allegations in the petition have not been proven by clear and convincing evidence, the juvenile court shall dismiss the petition. § 12 — 15—310(b), Ala. Code 1975.

In the present case, the dependency petition filed by the paternal grandparents contained specific allegations that, if proven to be true, could show that the child was dependent. Specifically, the petition alleged that the child had been sexually abused while the child was visiting at the mother’s house. Their petition was filed with the juvenile-court intake officer. The juvenile court erred in entering an order on June 25, 2012, concluding that the petition did not contain allegations sufficient to support a dependency action. The dependency petition clearly invoked the jurisdiction of the juvenile court. “Because the juvenile court properly has jurisdiction over the dependency petitions, those petitions can only be involuntarily dismissed upon the determination, after a hearing, that the children are not dependent. See Ala.Code 1975, § 12-15-310(b).” P.S.R. v. C.L.P., 67 So.3d 917, 922 (Ala.Civ.App.2011). Therefore, a hearing on the merits of the paternal grandparents’ petition is required to determine if the child is dependent. The fact that a divorce proceeding, at which custody will be determined, is pending and that a trial date for that proceeding has been set does not confer jurisdiction on the circuit court to determine allegations of dependency because the juvenile court exercises exclusive original jurisdiction over proceedings in which a child is alleged to be dependent. Accordingly, we reverse the judgment of the juvenile court and remand the case for the juvenile court to vacate its judgment denying the dependency petition, to reinstate the paternal grandparents’ dependency petition, and to conduct an evidentiary hearing on the petition.

REVERSED AND REMANDED.

MALONE, C.J., and WOODALL, MURDOCK, and MAIN, JJ., concur.

      . The paternal grandparents appealed to the Court of Civil Appeals, which requested a transfer of the appeal to this Court pursuant to § 12-3-15, Ala.Code 1975, because a member of that court was related to a party involved in the case.

      . Neither the mother nor the father favored this Court with a brief, and the record before us is limited.


author: STUART, Justice.

text:
    MTA, INC. v. MERRILL LYNCH, PIERCE, FENNER & SMITH, INC., a division of Bank of America Corporation.
    1111167.
    Supreme Court of Alabama.
    Dec. 7, 2012.

      Kevin D. Heard and Adam C. Duaro of Heard Ary, LLC, Huntsville, for appellant.
    Joshua D. Jones and Joel M. Everest of Maynard, Cooper & Gale, P.C., Birmingham, for appellee.
   STUART, Justice.

MTA, Inc., appeals the order of the Madison Circuit Court holding that MTA’s claims against Merrill Lynch, Pierce, Fen-ner & Smith, Inc., a division of Bank of Ameriea Corporation (“Merrill Lynch”), were subject to an arbitration agreement and compelling MTA to arbitrate those claims. We reverse and remand.

I.

On January 21, 1994, MTA entered into a deferred-compensation agreement (“the DCA”) with its employee, Yvonne Sanders. Pursuant to the terms of the DCA, MTA was obligated to pay Yvonne $270,000 in 120 equal monthly installments beginning the month following her 50th birthday or, in the event Yvonne died before reaching her 50th birthday, to pay her children, Tiffany Sanders and Roderick Dedrick, a total of $750,000 in 120 equal monthly installments beginning the month after her death. MTA thereafter obtained a $1,000,000 life-insurance policy on Yvonne to fund the death benefit provided in the DCA in the event it became payable.

On October 22, 1999, Yvonne died at the age of 43. For all that appears, MTA thereafter received the $1,000,000 it was owed under the life-insurance policy; however, MTA did not promptly begin making payments to Tiffany and Roderick as called for by the DCA. Instead, it appears that MTA was asked on behalf of Tiffany and Roderick to establish a rabbi trust to handle the payments, presumably to allow for more favorable tax treatment for Tiffany and Roderick. Accordingly, MTA thereafter executed a trust agreement with Thomas W. Dedrick, Sr., Tiffany and Roderick’s uncle and a licensed broker employed by Merrill Lynch, establishing the trust and depositing into it an initial sum of $506,450. The trust agree-raent also provided that Thomas would act as trustee of the trust.

On January 18, 2001, Thomas opened a brokerage account (the working-capital-management account or “the WCMA account”) with Merrill Lynch to house and manage the assets of the trust. The account-authorization form states on its face that it was entered into by Merrill Lynch and “Thomas W. Dedrick, Sr. TTEE UAD 1/1/2000 by MTA, Inc.” on behalf of the entity identified as “Trust — Deferred Comp[ensation] Plan” and executed by Thomas as the trustee. The account-authorization form also provided that Thomas agreed, on behalf of the trust, to all the terms and conditions of the agreement governing the WCMA account (“the WCMA agreement”) and specifically states that, “in accordance with paragraph 16 on page 9 of the WCMA agreement, we agree, on behalf of the above named entity [the trust] to arbitrate any controversies which may arise with [Merrill Lynch].” Paragraph 16 of the WCMA agreement specifically states that “[t]he parties are waiving their right to seek remedies in court, including the right to jury trial” and that

“[t]he customer agrees that all controversies that may arise between the customer and [Merrill Lynch], including, but not limited to, those involving any transaction or the construction, performance or breach of this or any other agreement between the customer and [Merrill Lynch], whether entered into prior to, on or subsequent to the date hereof, shall be determined by arbitration.”

The WCMA agreement further defines “the customer” as “the business or organization on whose behalf the WCMA account authorization form is signed” — in this case, the trust. That same day, Thomas also executed a client agreement with Merrill Lynch that contained a substantially similar arbitration provision, the only potentially relevant difference being that it was between “the client” and Merrill Lynch. The agreement did not define “the client”; however, the signature block contained a line for the “Name of Client if different from name of signatory.” This line was not filled out on the client agreement completed by Thomas, which he executed in his own name, noting his title as “trustee.” It is undisputed that nobody affiliated with MTA signed any documents with Merrill Lynch.

It appears that, subsequent to the creation of the trust, some intermittent payments were made from the trust to Tiffany and Roderick before payments ceased in approximately October 2009. However, the sum total of the payments made did not equal $750,000, and, on June 28, 2011, Tiffany and Roderick filed an action against MTA asserting breach-of-contract and unjust-enrichment claims and seeking $213,777, the amount they allege was still due them pursuant to the DCA. On November 27, 2011, MTA filed a third-party complaint against Thomas and Merrill Lynch, asserting claims for indemnification and alleging breach of fiduciary duty, negligence, and wantonness. The gravamen of those claims was described in the third-party complaint as follows:

“MTA has discovered that [Thomas] has breached the trust agreement and his obligations thereunder by among other matters investing in products which given the requirements of the trust were improper. Specifically, [Thomas] with knowledge of the purpose and payout obligations of the trust breached this trust by failing to abide by the payment schedule and by choosing to invest in products which caused unnecessary loss of income to the trust. Instead of choosing an investment approach which could have achieved the goals and purposes of the trust, [Thomas], through his acts or omissions or a combination of both breached the trust. Moreover, [Thomas] breached the trust agreement by failing to report the payments made from the trust as income and failed to provide the necessary tax statement to MTA.”

On February 3, 2012, Merrill Lynch moved the trial court to compel arbitration of MTA’s claims against it pursuant to the arbitration provisions in the account-authorization form, the WCMA agreement, and the client agreement. MTA opposed that motion, arguing that it was not a party to those contracts, and, following a hearing on the matter, both Merrill Lynch and MTA submitted additional briefs in support of their positions. On March 29, 2012, the trial court granted Merrill Lynch’s motion to compel arbitration and dismissed MTA’s third-party claims against Merrill Lynch. MTA’s subsequent motion to alter, amend, or vacate the trial court’s order was denied on April 30, 2012, and MTA thereafter filed a timely notice of appeal to this Court.

II.

The standard of review we apply to an order granting a motion to compel arbitration is well settled:

“We conduct a de novo review of a trial court’s order compelling arbitration. Smith v. Mark Dodge, Inc., 934 So.2d 375, 378 (Ala.2006).
“ ‘The party seeking to compel arbitration must first prove both that a contract calling for arbitration exists and that the contract evidences a transaction involving interstate commerce .... Once this showing has been made, the burden then shifts to the nonmovant to show that the contract is either invalid or inapplicable to the circumstances presented.’
“Smith, 934 So.2d at 378.”

Ritter v. Grady Auto. Group, Inc., 973 So.2d 1058, 1060-61 (Ala.2007). Neither MTA nor Merrill Lynch disputes that the identified contracts containing arbitration provisions — the account-authorization form, the WCMA management agreement, and the client agreement — involve interstate commerce; therefore, the only issue before this Court is whether MTA, which is not a signatory to those contracts, should be bound by those contracts.

III.

In Custom Performance, Inc. v. Dawson, 57 So.3d 90, 97 (Ala.2010), this Court noted that arbitration is a matter of contract and, accordingly, that a court cannot require a party to arbitrate claims the party has not previously agreed to arbitrate. Hence, the general rule that “ ‘ “a nonsignatory to an arbitration agreement cannot be forced to arbitrate [its] claims.” ’ ” Id. (quoting Edward D. Jones & Co. v. Ventura, 907 So.2d 1035, 1042 (Ala.2005), quoting in turn Cook’s Pest Control, Inc. v. Boykin, 807 So.2d 524, 526 (Ala.2001)). Nevertheless, we did recognize two exceptions to this general rule. The first is the third-party-beneficiary exception, which provides that “[a] nonsigna-tory can be bound to an arbitration agreement if ‘the contracting parties intended, upon execution of the contract, to bestow a direct, as opposed to incidental^] benefit upon the third party.’ ” Custom Performance, 57 So.3d at 97 (quoting Dunning v. New England Life Ins. Co., 890 So.2d 92, 97 (Ala.2003)). The second exception is closely related and provides that a nonsig-natory to a contract having an arbitration agreement will be treated as a third-party beneficiary of the contract regardless of whether the nonsignatory meets the legal definition of a third-party beneficiary “when he or she asserts legal claims to enforce rights or obtain benefits that depend on the existence of the contract that contains the arbitration agreement.” Custom Performance, 57 So.3d at 98 (emphasis omitted). This exception is referred to as the equitable-estoppel exception because of the inequity that would result if a party were allowed to simultaneously claim the benefits of a contract while repudiating its burdens and conditions.

In the instant case, Merrill Lynch has argued to both the trial court and this Court that MTA should be required to arbitrate its claims against Merrill Lynch based on the equitable-estoppel exception. MTA argues that it has asserted only tort claims against Merrill Lynch and that it accordingly would be inappropriate to apply the equitable estoppel exception because MTA is not suing to enforce a contract while simultaneously disclaiming a contractual provision requiring the arbitration of such claims. As an initial matter, we note that this Court has on some previous occasions applied the equitable-estoppel exception to require the arbitration of claims asserted by a nonsignatory to a contract calling for arbitration even when the nonsignatory’s claims sound in tort. See, e.g., Olshan Found. Repair Co. of Mobile, LP v. Schultz, 64 So.3d 598, 609 (Ala.2010), in which this Court held that a nonsignatory plaintiffs negligence and wantonness claims were nevertheless dependent on contracts containing arbitration provisions executed by the nonsigna-tory plaintiffs husband. Indeed, in Ol-shan we held that a factual determination must be made in each case to determine whether a nonsignatory’s claims, though at least nominally tort claims, depend upon the existence of a related contract containing an arbitration provision. 64 So.3d at 609. Nevertheless, in this case it is ultimately unnecessary for us to conduct that inquiry because, even if we were to conclude that MTA’s claims against Merrill Lynch were dependent on one of the identified contracts containing an arbitration provision, none of those arbitration provisions are broad enough to encompass this dispute.

In Cook’s, a pest-control company moved the trial court to require a patient in a hospital who was bitten by fire ants while in the hospital to arbitrate her claims against the pest-control company based on an arbitration provision in the contract between the hospital and the pest-control company. 807 So.2d at 525. The trial court denied the motion, and, on appeal, this Court affirmed that decision, declining to apply the third-party-beneficiary or equitable-estoppel exception and noting that, “under the facts of this present case, it appears [the nonsignatory hospital-patient plaintiff] relies on theories of recovery that do not depend upon the existence of the contract.” 807 So.2d at 527. However, the Court further explained that the narrow scope of the arbitration provision in the contract between the pest-control company and the hospital also precluded enforcing that provision against the plaintiff, stating:

“The narrow scope of the arbitration agreement serves as an independent basis for affirming the trial court’s order denying [the pest-control company’s] motion to compel arbitration of [the plaintiffs] claims against [the pest-control company]. The text of the arbitration clause limits its application to disputes arising between [the pest-control company] and the ‘customer’ ([the hospital] ).... This Court has held that a nonsignatory cannot require arbitration of a claim by the signatory against the nonsignatory when the scope of the arbitration agreement is limited to the signatories themselves. See Southern Energy Homes, Inc. v. Gary, 774 So.2d 521 (Ala.2000). Here, a signatory ([the pest-control company]) is trying to require arbitration by a nonsignatory ([the plaintiff]), where the scope of the arbitration agreement can be read as being limited to disputes between [the pest-control company] and [the hospital]. We have recognized that the rule requiring that a contract be construed most strongly against the party who drafted it applies to an agreement to arbitrate. See Homes of Legend, Inc. v. McCollough, 776 So.2d 741 (Ala.2000). We conclude that [the pest-control company] is attempting to enforce the clause beyond its scope, and the motion to compel arbitration fails for this reason.”

807 So.2d at 527. See also Porter Capital Corp. v. Thomas, 101 So.3d 1209, 1220 (Ala.Civ.App.2012) (holding that an arbitration agreement limited to disputes between “lender” and “borrower” was not susceptible to an interpretation that would have the agreement cover a dispute between the lender and the borrower’s shareholder or the lender and the borrower’s guarantor), and Ex parte Stamey, 776 So.2d 85, 90-91 (Ala.2000) (comparing limiting arbitration provision applying to “ ‘all disputes and controversies of every kind between buyer and seller arising out of or in connection with [this transaction]’ ” with broader nonlimiting provision applying to “ ‘[a]ll disputes, claims or controversies arising from or relating to this Contract or the relationships which result from this Contract’ ” (some emphasis omitted)).

In the instant case, the arbitration provisions in the identified contracts are broad in the sense that they apply to “any controversies” and “all controversies,” but narrow in the sense that they apply only to controversies between “the parties,” “the customer” and Merrill Lynch, or “the client” and Merrill Lynch. The contracts containing the arbitration provisions do not define the terms “the customer” or “the client” in such a way that would encompass MTA, and although Merrill Lynch argues that MTA is effectively a party to the contracts containing the arbitration provisions because it was a party to the DCA and the grantor of the trust, we disagree. Regardless of MTA’s involvement in establishing or funding the trust, it is neither the trust nor the trustee and is accordingly a nonsignatory to the contracts and can be held subject to the arbitration provisions only as set forth supra. See also Porter Capital Corp., 101 So.3d at 1209 (arbitration agreement entered into by borrower did not apply to borrower’s shareholder or borrower’s guarantor). Thus, regardless of whether the third-party-beneficiary or equitable-estoppel exception might otherwise apply, the narrow scope of the arbitration provisions in the account-authorization form, the WCMA agreement, and the client agreement precludes this Court from requiring MTA to arbitrate its third-party claims against Merrill Lynch. The trial court accordingly erred by granting Merrill Lynch’s motion to compel arbitration.

IV.

After Tiffany and Roderick sued MTA alleging that it had failed to fulfill its obligations under the DCA it had entered into with their deceased mother, MTA asserted third-party claims against Thomas and Merrill Lynch alleging, essentially, that Thomas had mismanaged funds MTA had placed into a trust established on behalf of Tiffany and Roderick. The trial court subsequently entered an order granting Merrill Lynch’s motion to compel MTA to arbitrate its claims against Merrill Lynch on the basis of arbitration provisions in multiple contracts Thomas had executed with Merrill Lynch on behalf of the trust and dismissing MTA’s third-party claims against Merrill Lynch. We now reverse that order, holding that MTA was not a signatory to those contracts and that the scope of the arbitration provisions in those contracts is too narrow to encompass disputes between Merrill Lynch and other entities not a party to those contracts. The cause is accordingly remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

MALONE, C.J., and PARKER, SHAW, and WISE, JJ., concur.

      . "A rabbi trust is a commonly-used mechanism for deferred compensation and deferred taxation, in which ‘[f]unds held by the trust are out of reach of the employer, but are subject to the claims of the employer’s creditors in the event of bankruptcy or insolvency.' " Kadillak v. Commissioner of Internal Revenue, 534 F.3d 1197, 1201 n. 2 (9th Cir.2008) (quoting In re IT Group, Inc., 448 F.3d 661, 665 (3d Cir.2006)).

      . MTA asserts, and Merrill Lynch does not dispute, that the phrase "Thomas W. Dedrick, Sr. TTEE UAD 1/1/2000 by MTA, Inc." is commonly understood in this context to mean that Thomas is the "trustee” "under agreement dated” 1/1/2000 by MTA.

      . We also noted in Custom Performance that a nonsignatory to an arbitration agreement may compel a signatory to that agreement to arbitrate claims " 'where arbitrable and nonarbi-trable claims are so closely related that the party to a controversy subject to arbitration is equitably estopped to deny the arbitrability of the related claim.’ ” 57 So.3d at 99 (quoting Conseco Fin. Corp. v. Shannon, 828 So.2d 890, 893 (Ala.2001)). However, this "intertwining-claims doctrine” does not provide an exception to the general rule that a nonsigna-tory to an arbitration agreement will not be forced to arbitrate its claims because the doctrine can be asserted only by a nonsignatory against a signatory and not vice versa. See Ex parte Tony’s Towing, Inc., 825 So.2d 96, 97 (Ala.2002) (explaining the rationale for allowing only nonsignatories to assert the intertwining-claims doctrine).


author: THOMAS, Judge.

text:
    E.C.D. v. In the matter of P.D.R.D.
    2111101.
    Court of Civil Appeals of Alabama.
    Dec. 7, 2012.

      Natasha V. Snow and Ellis D. Bingham III of Bingham at Law, LLC, Bessemer, for appellant.
    Submitted on appellant’s brief only.
   THOMAS, Judge.

E.C.D. appeals from a judgment of the Franklin Juvenile Court adjudicating P.D.R.D. (“the child”) dependent, insofar as the juvenile court, in its judgment, failed to make certain findings of fact. Because the juvenile court did not address all the issues presented before it, we determine that judgment is nonfinal and dismiss the appeal.

The child was born in Guatemala on November 23, 1994. When the child was 11 years old, he stopped attending school and began working in construction in order to help support his family. The child’s parents cannot provide basic necessities such as food, clothing, or health care. The child’s home in Guatemala does not have indoor plumbing, and the closest hospital is a 40-minute walk from the home. At the age of 16, the child traveled unaccompanied from Guatemala through Mexico to the United States. On or about May 16, 2011, he was arrested by the United States Citizenship and Immigration Services (“USCIS”) when he crossed the United States border into Texas. The child was eventually released into the care of E.C.D., the child’s half brother. E.C.D. is an adult, legal, permanent resident of the United States who lives in Franklin County, Alabama.

On November 28, 2011, E.C.D. petitioned the juvenile court to declare the child dependent and to award E.C.D. custody of the child. The juvenile court held a hearing on E.C.D.’s dependency petition on July 31, 2012. According to the record, E.C.D. orally requested at the dependency hearing and in a bench memorandum that the juvenile court make certain findings of fact that would allow the child to apply to the USCIS for “Special Immigrant Juvenile” (“SIJ”) status, as defined in 8 U.S.C. § 1101(a)(27)(J). In the bench memorandum, E.D.C. specifically requested that the juvenile court, in addition to finding the child dependent, also find that:

“The child’s reunification with one or both parents is not viable due to abuse, neglect, or abandonment or a similar basis found under state law; and
“It is not in the child’s best interest to be returned to his or her country of nationality or last habitual residence.”

On August 3, 2012, the juvenile court entered a judgment adjudicating the child dependent and awarding custody to E.C.D. The judgment included the following findings of fact:

“Based on the testimony, the minor child’s father does not have full-time employment due to an illness (diabetes). The child’s mother does not work because there are no jobs for women where they live. His home in Guatemala has an outside bathroom. The closest hospital is a 40-minute walk from his home. The minor child quit school when he was eleven years old and began working with his father and doing construction work. He testified he cannot go back to school at the present time and his parents cannot take care of him because of their financial situation. He left Guatemala when he was 16 years old to come to the United States to get a job to send money back to his family in Guatemala.”

However, the judgment did not contain the detailed findings of fact that were required for the child to apply for SIJ status with the USCIS. E.C.D. appealed to this court on August 16, 2012.

E.C.D. does not challenge the juvenile court’s affirmative findings. Rather, he argues in his brief that the juvenile court erred by failing to include the findings necessary for the child to apply for SIJ status and remain in the United States. This is an issue of first impression in Alabama.

Special-immigrant-juvenile status is a pathway for alien children to lawful permanent residency. 8 U.S.C § 1101(a)(27)(J); 8 C.F.R. § 204.11. In order to petition the USCIS for SIJ status, an immigrant child must be under the age of 21 and unmarried. 8 C.F.R. § 204.11(c). The child must have been declared dependent by a state juvenile court, 8 U.S.C. § 1101(a)(27)(J), and the juvenile court must have made two additional findings: (1) that “reunification with 1 or both of the immigrant’s parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law” and (2) that “it would not be in the alien’s best interest to be returned to the alien’s or parent’s previous country of nationality or country of last habitual residence.” 8 U.S.C. § 1101(a)(27)(J)(i) and (ii); see also 8 C.F.R. § 204.11. The state juvenile court determines whether the evidence supports the required findings under 8 U.S.C. § 1101(a)(27)(J); however, the final decision regarding SIJ status rests with the federal government. 8 U.S.C. § 1101 (a) (27) (J) (iii).

Although neither our supreme court nor this court have been called upon to address this issue, we find the reasoning of the Georgia Court of Appeals in In re J.J.X.C., 318 Ga.App. 420, 734 S.E.2d 120 (2012), instructive. The facts in J.J.X.C. are parallel to the case at bar. In J.J.X.C., that court concluded that “the juvenile court is charged with making the factual inquiry relevant to SIJ status when an unmarried, resident alien child is found to be dependent on the court.” 318 Ga.App. at 420, 734 S.E.2d at 123-24 (footnote omitted). A juvenile court’s failure to include the findings relevant to SIJ status “effectively terminates the application for legal permanent residence, clearly affecting a substantial right” of the child. In re Interest of Luis G., 17 Neb.App. 377, 385, 764 N.W.2d 648, 654 (2009).

This court is unable to determine whether the absence of the SIJ-status findings in the juvenile court’s judgment was an implied denial or simply an oversight. We do not express an opinion as to the merits of this case; it is the purview of the juvenile court to determine whether sufficient evidence was presented to satisfy the SIJ-status requirements. However, this is a special circumstance “where a state juvenile court is charged with addressing an issue relevant only to federal immigration law,” J.J.X.C., 318 Ga.App. at 420, 734 S.E.2d at 124; we can neither affirm nor reverse without some indication that the juvenile court addressed the SIJ-status issues.

“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)). ‘[A] final judgment is a “terminal decision which demonstrates there has been a complete adjudication of all matters in controversy between the litigants.’” Dees v. State, 563 So.2d 1059, 1061 (Ala.Civ.App.1990) (quoting Tidwell v. Tidwell, 496 So.2d 91, 92 (Ala.Civ. App.1986)).”

Butler v. Phillips, 3 So.3d 922, 925 (Ala.Civ.App.2008).

As we previously explained, E.C.D. specifically asked the juvenile court to make findings of fact regarding the SIJ-status requirements both in a bench memorandum and orally at the dependency hearing. We conclude that the juvenile court’s failure to include such findings in its judgment renders the August 3, 2012, judgment nonfinal. Accordingly, we dismiss the appeal with instructions to the juvenile court to make the findings regarding the SIJ-status requirements set out in 8 U.S.C. § 1101(a)(27)(J).

APPEAL DISMISSED WITH INSTRUCTIONS.

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

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

      . The child’s father suffers from diabetes and is unable to work; the child’s mother does not work because there are no jobs for women in the area where she lives.

      . The child and E.C.D. share the same mother but have different fathers.


author: PER CURIAM. THOMAS, Judge,

text:
    H.H.J. v. K.T.J.
    2110583.
    Court of Civil Appeals of Alabama.
    Dec. 14, 2012.

      James C. Cashion, Hamilton, for appellant.
    Jonathan B. Lowe and Matthew B. Le-Duke of Lowe Mobley Lowe & LeDuke, Haleyville, for appellee.
   PER CURIAM.

H.H.J. (“the father”) and K.T.J. (“the mother”) were married on September 28, 1986. One child, H.R.J. (“the child”), was born of the parties’ marriage. The father engaged in an extramarital relationship with C.E.C., who gave birth to the father’s two younger children (“the half siblings”). The existence of the father’s relationship with C.E.C. and of the half siblings was unknown to the mother and to the child for a number of years. The mother eventually discovered the father’s relationship with C.E.C., and, as a result, the parties were divorced pursuant to a November 9, 2009, judgment (“the divorce judgment”) of the trial court.

Among other things not pertinent to this appeal, the divorce judgment awarded the parties joint legal and physical custody of the child. In addition, the trial court included in the divorce judgment the following restriction on the father’s custodial periods with the child:

“The [father] is strictly enjoined from having any contact with or being in the presence of [C.E.C.] ... while [the child] is in his custodial care. The [father] should pay special attention to this paragraph as a violation of the same would constitute a material change in circumstances in the eyes of this court. This court is firmly convinced that contact with [C.E.C.] is not presently in the best interest of [the child] and in fact would be quite detrimental to the emotional well being of [the child].”

The father married C.E.C. (hereinafter referred to as “the second wife”) in December 2010. On January 26, 2011, the mother filed a pleading seeking to modify custody and to have the father held in contempt. As the basis for her claim seeking an award of primary custody of the child, the mother asserted, among other things, that the father’s marriage to the second wife and his alleged failure to visit the child since January 2010 constituted a material change of circumstances warranting a custody modification. The contempt claims pertained to certain support requirements for the child. The father answered the mother’s pleading on February 25, 2011.

The mother filed a motion seeking a hearing on pendente lite issues on March 8, 2011. The trial court conducted an evi-dentiary hearing on the pendente lite issues on April 18, 2011. On May 31, 2011, the trial court entered an order awarding the mother pendente lite custody of the child and awarding the father alternating weekend visitation at the father’s home. In that pendente lite order, the trial court again specifically included the requirement that the child “shall not be in the presence of [the second wife]” during the father’s visitation. Furthermore, the pendente lite order required the mother to post bond in the amount of $5,000. The trial court warned the mother that if she violated any provisions of the pendente lite order or of the original divorce judgment, she could be held in contempt and could forfeit the $5,000 bond. That portion of the pendente lite order requiring the mother to post a bond was entered in response to the trial court’s determination that the mother had “in the past been detrimental to the reestablishment of’ the relationship between the father and the child.

The trial court conducted a hearing on the merits on November 3, 2011. Although the father had not filed a counterclaim seeking to modify the provision of the divorce judgment prohibiting the child from being in the presence of the second wife, that issue was tried by the express consent of the parties. See Rule 15(b), Ala. R. Civ. P. (“When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.”).

In its November 21, 2011, modification judgment, the trial court awarded the mother primary physical custody of the child and awarded the father a standard schedule of alternating weekend visitation. The judgment included a provision specifying that after June 17, 2012, i.e., the child’s 16th birthday, visitation would be at the discretion of the child. In addition, the November 21, 2011, modification judgment specified:

“3. It is further ORDERED, ADJUDGED AND DECREED that during the visitation period with the [father], ... [the child] shall at no time be allowed to be in the presence of [the second wife]. [The child] and [the child] alone is the only one allowed, at his desire, to deviate from this paragraph. All other provisions of this Court’s final judgment of divorce on this issue shall remain in full force and effect.”

(Capitalization in original.) The father filed a postjudgment motion, which the trial court denied. The father filed a timely notice of appeal to this court.

The record on appeal reveals the following pertinent facts. During the modification proceeding, the parties agreed that the mother would receive primary physical custody of the child, and they litigated the issues of child support and the father’s visitation with the child. Neither party appealed as to the support issues determined by the trial court, and, therefore, we omit any discussion of those issues. The parties’ testimony at the final hearing on the issue of visitation pertained to visitations after the April 18, 2011, pendente lite hearing. The transcript of the evidence from the pendente lite hearing is not contained in the record on appeal; therefore, this court does not have before it evidence presented at that hearing on the issue of the father’s visitation with the child before the date of that hearing. We note that the trial court spoke with the child in the presence of the parties’ attorneys; the child’s statements, although transcribed, were not sworn.

The mother testified that the father had been active in the child’s life and involved in his activities before the parties divorced but that the father had done very little with the child since the parties separated. The father also admitted that he did not attend any of the child’s extracurricular baseball or basketball games or tournaments. The child is a champion wake-boarder, and, before the divorce, the father had been involved in that sport with the child. The father admitted that, although he exercised his visitation with the child at a lake house, he had taken the child wakeboarding only once or twice during the summer. The father also acknowledged that he had refused to attend any of the wakeboarding competitions in which the child had participated. The father testified that he believed that he would feel uncomfortable attending those wakeboard-ing events because the mother and some of her friends would be there.

It is undisputed that the child has never met the second wife, that he has no desire to do so, and that he does not wish to visit with the father when the second wife is present. The mother explained that the child does not want to see the second wife •because of the manner in which the parties’ marriage ended and because the child believes the second wife is the reason the father is only minimally involved in the child’s life. The mother testified that she did not believe that the child should be forced to have contact with the second wife. The father testified that the child “needs to try” to visit him at his home with the second wife and the half siblings.

Although the child did not testify, he did make certain statements to the trial court. Those statements indicate that the child is hurt by what he perceives as the father’s failure or refusal to be actively involved in his life, as the father was before the parties’ divorce. The child also expressed a disinclination to meet the second wife or visit the father in her presence.

The father argues that the trial court erred in maintaining the restriction on his visitation that specifies that the child is not to visit the father in the presence of the second wife unless the child desires to do so. With regard to reviewing a judgment resolving a dispute over visitation, this court has stated:

“““ “[Clases in Aabama have consistently held that the primary consideration in setting visitation rights is the best interests and welfare of the child. Furthermore, each child visitation case must be decided on its own facts and circumstances.” Fanning v. Fanning, 504 So.2d 737, 739 (Aa.Civ.App.1987) (citations omitted). “When the issue of visitation is determined after oral proceedings, the trial court’s determination of the issue will not be disturbed absent an abuse of discretion or a showing that it is plainly in error. Andrews v. Andrews, 520 So.2d 512 (Aa.Civ.App.1987).” Dominick v. Dominick, 622 So.2d 402, 403 (Aa.Civ.App.1993).’ ” ’
“K.B. v. Cleburne Cnty. Dep’t of Human Res., 897 So.2d 379, 387-88 (Aa.Civ.App.2004) (quoting K.L.R. v. L.C.R., 854 So.2d 124, 132 (Aa.Civ.App.2003), quoting in turn K.L.U. v. M.C., 809 So.2d 837, 840-41 (Aa.Civ.App.2001)).”

P.S. v. M.S., 101 So.3d 228, 233 (Aa.Civ.App.2012). “The trial court has much discretion in ascertaining visitation rights, and each case must stand upon its own peculiar facts and the personalities involved.” Fillingim v. Fillingim, 388 So.2d 1010, 1011 (Aa.Civ.App.1980) (citing Allen v. Allen, 385 So.2d 1323 (Aa.Civ.App.1980); Phillips v. Phillips, 53 Aa.App. 191, 298 So.2d 613 (1974); and Atkinson v. Atkinson, 45 Aa.App. 428, 231 So.2d 753 (1970)).

The father concedes that, in exceptional cases, it might not be in the best interests of a child to visit a parent. See Watson v. Watson, 555 So.2d 1115, 1116 (Aa.Civ.App.1989). He also points out that a parent cannot be denied visitation when the child is manipulated by the other parent or when the basis for the child’s refusal to visit is unreasonable. Shires v. Shires, 494 So.2d 102,103 (Aa.Civ.App.1986); see also Hagler v. Hagler, 460 So.2d 187, 189 (Aa.Civ.App.1984) (“There are circumstances where it is reasonable, equitable and to the best interest of children that they not be required to visit with a non-custodial parent because of their unwillingness or fear to do so.”). The father argues that there is evidence indicating that the child has been manipulated by the mother and that the child’s reluctance to visit in the presence of the second wife is unreasonable. Based on those arguments, the father contends that the trial court’s refusal to modify the restriction on his visitation with the child is error.

However, the trial court was presented with those arguments and rejected them. In its November 21, 2011, modification judgment, the trial court noted that the mother had interfered with the relationship between the child and the father in the past, that she had not done so since the April 2011 pendente lite hearing, and that the bond he had required the mother to post would continue to ensure her compliance with its orders. As the trial court noted, “[s]ince the posting of the bond, the Mother has strictly complied with court’s previous order of visitation. The bond has worked as it was intended.” Thus, the trial court’s findings indicate that it determined that, at the time of the final hearing in this matter, the mother was no longer “hindering” the father’s relationship with the child.

Further, the trial court appears to have determined that the child’s statements indicating that he does not want to be forced to visit with the father’s new family were no less credible or valid than the father’s own explanation as to why he had refused to attend any of the child’s extracurricular activities, i.e., that the father had wanted to avoid the possibility that he might feel uncomfortable visiting the child at those events at which the mother would be present. Thus, we cannot conclude that the authority relied upon by the father demonstrates error on the part of the trial court.

More importantly, however, the facts of Watson v. Watson, supra, Shires v. Shires, supra, and Hagler v. Hagler, supra, are distinguishable from the facts of this case. In Watson v. Watson and Shires v. Shires, the father was denied visitation, and in Hagler v. Hagler the father was awarded visitation only if the children desired to visit, which, in that case, constituted an effective denial of his visitation rights. In this case, the father has not been denied visitation with the child.

Rather, the trial court denied the father’s claim seeking to modify the requirement that the child not visit him in the presence of the second wife. The father, as the party seeking to remove the restriction on his visitation with the child, had the burden of demonstrating that there had been a material change in circumstances since the entry of the divorce judgment and that the best interests and welfare of the child warrant the modification. See N.T. v. P.G., 54 So.3d 918, 920 (Ala.Civ.App.2010) (“On a petition to modify visitation, a court does not reexamine the evidence to determine if its original judgment was correct; rather, it decides whether modification is warranted based on changed circumstances.”); see also Moody v. Nagle, 811 So.2d 546, 549 (Ala.Civ.App.2001); and Flanagan v. Flanagan, 656 So.2d 1228, 1230 (Ala.Civ.App.1995). As is explained below, our review of the record supports the determination that the father did not meet his burden of proof.

In its judgment, the trial court made a number of factual findings, including the following:

“A. [T]he Father, at the final hearing on the merits of the original case, testified untruthfully about the status of his relationship with his paramour, [C.E.C.]. More specifically the Father testified, as did [C.E.C.], that they no longer had a relationship with one another nor was one desired or envisioned. The court took the Father and [C.E.C.’s] testimony into account when the original custody order was initially fashioned barring contact between the minor child of the parties ... (hereinafter ‘minor child’) and [C.E.C.]. It should be noted that the Father and [C.E.C.] later married.
B. The minor child would be caused to suffer emotionally and it would be detrimental to his well being if he were forced, against his will, to be in the presence of the Father’s new wife, [C.E.C.] (hereinafter ‘new wife’).
“C. The Father has not availed himself of every, or even the majority, of opportunities to repair his relationship with the minor child. Quite to the contrary, the Father has been forced by the new wife to pick between his new family and the minor child. As a consequence, further damage has been done to his relationship with the minor child. This is regrettable, especially given the fact that the new wife was fully aware that the Father had a child when she sought to become involved with him and ultimately play a part in the demise of his marriage to the [mother].
“It should be noted that this Court has no desire to further damage the relationship of the Father and the minor child. Quite to the contrary, it is the strong desire of this court that the relationship between the Father and the minor child grow stronger and it is this court’s belief that deeds and not words are going to be the catalyst for this growth.
“The Father presently sees himself as a victim in this situation and that is unfortunate as the only real victim in the above-styled cause is the minor child of the parties for no one asked his opinion or thoughts on having his whole world turned upside down. It is the belief of this court that the sooner the Father accepts his share of responsibility in forever changing his son’s life, the sooner their relationship will begin to heal.
“D. The Defendant, [K.T.J.] (hereinafter ‘the Mother’) has in the past been detrimental to the re-establishment of a relationship between the Father and the minor child. Stated more frankly, the Mother would have been content if the Father had been awarded no visitation with the minor child. However, the court felt that it would detrimental to the minor child and quite honestly mean spirited to sever the relationship between the minor child and his father. Therefore, in an effort to thwart further efforts by the mother at hindering the father’s and minor child’s relationship, the court caused the mother to post a bond in the amount of $5,000. Since the posting of the bond, the mother has strictly complied with court’s previous order of visitation. The bond has worked as it was intended.”

(Emphasis added.)

The appropriate inquiries — and the ones utilized by the trial court — are whether the father has demonstrated the existence of a material change in circumstances and whether requiring the child to visit the father in the presence of his new wife and family would be in the child’s best interests so as to warrant a modification of the original restriction. N.T. v. P.G., supra; Moody v. Nagle, supra; and Flanagan v. Flanagan, supra; see also Gilliam v. Gilliam, 876 So.2d 1135, 1142 (Ala.Civ.App.2003) (the primary consideration in fashioning a visitation award is the best interests of the child); and Carr v. Broyles, 652 So.2d 299, 303 (Ala.Civ.App.1994) (same). The trial court witnessed the parties as they testified and spoke with the then-15year-old child. The evidence presented to the trial court indicates that the child remains hurt and resentful of the father’s conduct before the divorce, and the child expressed further anger that the father had failed to participate in activities with him or to attend any of his extracurricular activities after the divorce. It is clear both from the factual findings contained in the modification judgment and the statements the trial court made to the parties and the child about making an effort to repair the relationship of the father and the child that the trial court carefully considered the evidence and evaluated the credibility and motivations of the parties. The trial court was in the best position to evaluate the witnesses and to consider the inferences to be drawn from their testimony, regarding whether visitation that included the father’s new wife and family would be detrimental to the child. Ex parte Patronas, 693 So.2d 473, 475 (Ala.1997). This court is not allowed to reweigh evidence presented to the trial court, nor may it substitute its judgment for that of the trial court. Pickett v. Pickett, 792 So.2d 1124, 1129 (Ala.Civ.App.2001). Also, this court has held:

“The trial court has broad discretion in determining the visitation rights of a noncustodial parent, and its decision in this regard will not be reversed absent an abuse of discretion. Alexander v. Alexander, 625 So.2d 433, 435 (Ala.Civ.App.1993). Every case involving a visitation issue must be decided on its own facts and circumstances, but the primary consideration in establishing the visitation rights accorded a noncustodial parent is always the best interests and welfare of the child. Fanning v. Fanning, 504 So.2d 737, 739 (Ala.Civ.App.1987).”

Carr v. Broyles, 652 So.2d at 303.

In this case, the trial court expressly stated that it wanted to help the parties improve the child’s relationship with the father but that the father’s lack of effort in that regard had caused further damage to the relationship. The evidence indicates that the changes in this case are the father’s marriage to the new wife and, as the trial court found, a further deterioration of the relationship between the father and child because of to the father’s failure to work to improve that relationship. The father presented evidence indicating that he preferred that the child visit him with his new family and that that would make visitation with the child easier for the father. The father presented no evidence concerning how visiting him in the presence of the second wife would serve the child’s best interests. Given the unique circumstances of this case, the evidence in the record on appeal, and the findings of the trial court, we cannot say that the trial court abused its discretion in determining that, given the history between the father and the child, forcing the child to visit the father solely on the father’s terms would be detrimental to the child and not in the child’s best interests.

In his brief on appeal, the father also contends that the restriction on his visitation with the child violates his constitutional rights. That restriction, however, was put in place by the trial court in the November 9, 2009, divorce judgment. “[A] modification petition cannot revive claims of error as to the judgment sought to be modified.” Jones v. Jones, 883 So.2d 207, 209 n. 1 (Ala.Civ.App.2003). Thus, the father’s failure to appeal that restriction at the time of the entry of the divorce judgment precludes this court’s review of the issues he now raises with regard to the restriction’s alleged infringement of his constitutional rights.

We note that the father argues in his brief on appeal that he and the second wife were not in a relationship at the time the divorce judgment was entered, thereby implying that there was no need, at that time, to challenge the restriction on his visitation. However, in its November 21, 2011, modification judgment, the trial court expressly determined that the father and the second wife had misrepresented the status of their relationship at the time of the divorce hearing. Given the record and the history of the parties, and applying the appropriate standard of review, we cannot say that that finding is not supported by the record.

Out of an abundance of caution, however, we note that the father could not prevail on the constitutional issues raised in this appellate brief. In his post-judgment motion, the father claimed that the trial court had violated his First Amendment right of association because he had been deprived of “his right of association with his three children and [the second] wife simultaneously.” On appeal, the father seeks this court’s review of the issue whether he has been deprived of his First and Fourteenth Amendment rights to choose with whom the child will associate when the father is exercising visitation with the child. We conclude that the father’s argument on appeal is not the same argument as the argument in his post-judgment motion; therefore, his Fourteenth Amendment argument is not properly before this court. “It is well known that ‘we cannot reverse the judgment of the trial court based on an argument not made below and urged for the first time on appeal.’ Singleton v. State Farm Fire & Cas. Co., 928 So.2d 280, 285 (Ala.2005).” White Sands Group, L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1057 (Ala.2008).

The father last argues that the trial court erred because, after June 17, 2012, the father’s visitation is entirely within the child’s discretion. It is clear from the mother’s testimony that the father and the child enjoyed a good relationship before the parties divorced. The trial court acknowledged that the father loves the child and desires to continue to have a good relationship with him. However, after the parties’ divorce, the child became embittered toward the father. The child’s statements before the trial court also indicate that he was hurt by the father’s failure to communicate with him and the father’s continued refusal to attend extracurricular events that were important to the child.

However, the record also indicates that the father spends time with the child. The father has visited with the child on alternating weekends since the April 2011 pen-dente lite hearing and has made some attempts to engage the child during those visitations. The father and the mother each testified that the child’s most recent visit with the father indicated an improvement in the child’s attitude toward the father and his family.

“The natural and proper relationship of a parent and child should be nurtured, encouraged and protected by the court after the breakdown of a marriage. No unreasonable impediment should be raised....
“... The responsibility for the cultivation of that relationship should rightfully be upon the father, and the mother, not upon the child. To so place it is to probably destroy it, not protect it.”

Moore v. Moore, 57 Ala.App. 735, 331 So.2d 742, 744 (Ala.Civ.App.1976); see also Parker v. Parker, 269 Ala. 299, 303, 112 So.2d 467, 471 (1959) (reversing a judgment placing visitation at the discretion of the child and stating that “a decision as to what is best for the child” should be made by the trial court rather than the child).

The record indicates that the father has made some efforts to repair his relationship with the child, that the child was responding, and that the child was willing to try to have a relationship with the father. The restriction precluding the child from unwanted visitation with the father’s new wife adequately addresses the child’s interests and encourages the repair of the child’s relationship with the father. Allowing the child to determine the timing of visitation with the father would not, given the facts, be in the child’s best interests. Accordingly, we reverse that part of the trial court’s modification judgment that allows the child to determine visitation after June 17, 2012, and we remand this cause for the entry of a judgment in compliance with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

THOMAS, J., concurs in part and dissents in part, with writing.

THOMAS, Judge,

concurring in part and dissenting in part.

I concur with the majority of this court insofar as it concludes that the constitutional argument raised by H.H.J. (“the father”) on appeal is not properly before this court because it is not the same argument as the argument raised in his post-judgment motion. 114 So.3d at 44. I also concur with the majority of this court insofar as it concludes that the Marion Circuit Court erred by ordering that the father’s visitation should be left entirely within the discretion of H.R.J. (“the child”). 114 So.3d at 44. However, my review of the record leads me to the conclusion that the trial court also erred by forbidding the presence of C.E.C. (“the second wife”) during the father’s visitation with the child. No one disputes that a material change of circumstances has occurred or that K.T.J. (“the mother”) should have been awarded primary custody of the child. The question is whether the highly unusual restrictions placed on the father’s visitation are in the best interest of the child. I am not convinced that they are.

The record indicates that the father has been exercising his visitation with the child on alternating weekends at the father’s parent’s lake house because of the trial court’s original prohibition against the child’s being in the presence of the second wife. The trial court’s November 21, 2011, judgment again forbade the child from being in the presence of the second wife, and it added an additional limitation: the trial court restricted visitations to the father’s residence. The apparent effect of the judgment is that the second wife is required to move out of the residence every other weekend or the visitation cannot occur.

The trial court included a finding in its November 21, 2011, judgment that “[t]he minor child would be caused to suffer emotionally and it would be detrimental to his well being if he were forced, against his will, to be in the presence of [the second wife].” As the main opinion notes, the child had never met the second wife. 114 So.3d at 41. I cannot agree that the trial court had sufficient evidence before it to support its finding; therefore, I conclude that the trial court exceeded its discretion and that its judgment imposing the restrictions at issue is due to be reversed.

Certainly a trial court may set conditions on visitation to protect a child when there are allegations of abuse or that a caregiver has psychological problems. See, e.g., I.L. v. L.D.L., 604 So.2d 425, 428 (Ala.Civ.App.1992)(reversing a trial court’s judgment granting unsupervised visitation to a noncustodial parent who had allegedly sexually abused the child); Y.A.M. v. M.R.M., 600 So.2d 1035, 1037 (Ala.Civ.App.1992) (same); Watson v. Watson, 555 So.2d 1115, 1117 (Ala.Civ.App.1989)(see discussion infra); and Caldwell v. Fisk, 523 So.2d 464 (Ala.Civ.App.1988)(affirming a trial court’s judgment requiring the noncustodial parent’s visitation to be supervised because he suffered from a psychological or emotional problem). Such concerns are not present in this case. I conclude that the evidence presented fails to indicate that the second wife’s presence has ever been, or ever will be, harmful to the child, although, as the main opinion points out, the child does not -wish to visit the father if the second wife is present. 114 So.3d at 39.

In Hagler v. Hagler, 460 So.2d 187 (Ala.Civ.App.1984), the children, who were 8 and 11 years of age, claimed that they were afraid of the father and did not desire to visit him. Hagler, 460 So.2d at 188. We said that “a trial court may, and normally should, require visitation even if it is forced upon a child” if it “is reasonably satisfied from the evidence that a child is merely parroting the wishes of the custodial parent, or that the child is too immature to form a considered opinion, or where the child expresses fears or unwillingness to visit without any reasonable basis or foundation.” Id. at 189. The main opinion states that the trial court was presented with and rejected the arguments that the child was manipulated by the mother — or was “parroting” her wishes — and that the child’s reluctance to be in the second wife’s presence was unreasonable. 114 So.3d at 40. I do not arrive at the same conclusion.

The trial court did not reject the argument that the mother had manipulated the child. Quite the opposite, it imposed a $5,000 bond so that she would not continue to manipulate the child. The fact that the trial court determined that she had complied with the bond requirements cannot undo the damaging effects of the past manipulation. Furthermore, my review of the record does not reveal any evidence indicating that the child had formed a considered opinion regarding the consequences of refusing to be in the presence of the second wife. Although the child may be a mature young person, the most mature 15-year-old child cannot be expected to comprehend the legal, social, financial, or emotional implications of a strained relationship with a parent. Finally, there was no testimony regarding any reasonable basis for the child’s unwillingness to be in the presence of the second wife. I do not, as apparently does the majority of this court, see this case a an example of the rare and extreme case when the trial court has evidence proving that a child who is unwilling to visit an otherwise fit parent would suffer adverse psychological damage. See id. Thus, I believe the conclusion of this court regarding the father’s visitation is in. conflict with our decisions in Hagler and Watson v. Watson, 555 So.2d 1115 (Ala.Civ.App.1989).

In Watson, we determined that the trial court had ample evidence to support its determination that visitation was not in the best interest of the child because the child feared visiting with a noncustodial parent who had suicidal tendencies and had been diagnosed with depression and paranoia. 555 So.2d at 1116-17 (citing Hagler, 460 So.2d at 189). We reiterated:

‘While it is a rare and exceptional case, there are circumstances where it is reasonable, and in the best interests of the child, to not be required to visit a non-custodial parent because of his unwillingness or fear to do so. It is an extreme decision that restricts an otherwise relatively qualified parent from visiting his child.”

Id.

I am not persuaded by the evidence in the record that the trial court’s extreme decision to restrict the father’s visitation to alternating weekends, only at the father’s residence, and only outside the presence of the second wife is in the best interest of the child. I come to this conclusion in light of the testimony presented to the trial court.

The mother testified that the father had made efforts to repair his relationship with the child, that the child was responding, and that the child was willing to try to have a relationship with the father. The trial judge stated to the child: “But I can tell you at every turn your daddy has fought tooth and nail, at least in front of me[,] to be involved in your life.” The mother said that she desired for the father and the child to have a “healthy relationship”; however, she said that their relationship at the time of the trial was unhealthy due to the parties’ divorce and the father’s marriage to the second wife.

Notably, the father and the mother testified regarding the child’s most recent visit with the father. The father said that he was seeing improvement in the child’s attitude and that the child had enjoyed his time with the father’s mother and the father’s nephew. The father said: “He’s coming around.” The mother said:

“I think [the child’s attitude toward the father and his family] might change. Like [the father] was saying, he has— [the child] has called [the father’s nephew], [The father’s nephew] and [the child] have played disc golf a couple of times, maybe three or four times here lately. I think that’s a start. [The child] came home and he told me that, well, we went to [the father’s mother’s] house this weekend. [The mother] said, well, that’s good. Did you have a good time? Well, at least I had somebody to talk to me. [The father’s mother] talked to me and [the father’s nephew] talked to me. You know, so I think it’s a start.”

Because I believe the court should encourage the natural and proper relationship of a parent and child after the breakdown of a marriage, even when one parent is the sole cause of the breakdown, I dissent as to that portion of the main opinion that affirms the trial court’s judgment insofar as it prohibits the presence of the second wife during visitation between the father and the child.

      . References made by the trial court during the final hearing indicate that the mother had earlier allowed the child to determine whether, and when, he would visit the father, and the trial court addressed that issue in its May 2011 pendente lite order in which it required the mother to post a bond. It does not appear that, following the divorce, the father exercised his right to alternating weekly custody that he had been awarded in the divorce judgment.

      . The father conceded that he had missed one or two visits since the April 2011 pendente lite hearing. However, those visits were missed because the father had to work or because there was a conflict with the child's schedule.

      . The father has not appealed regarding the restricted location of the visitations.