author: MAIN, Justice.

text:
    GROTON PACIFIC CARRIERS, INC., and International Tanker Management Holding LTD. v. Carl JACKSON, as personal representative of The Estate of Carl L. Williams, deceased, and as next friend of Camren Lamarcus Williams, Jayden Eugene Williams, and Cartez Labruce Williams, minors; and Edward L. Purdue.
    1120613.
    Supreme Court of Alabama.
    Feb. 14, 2014.

      Gregory C. Buffalow of Warhurst & Buffalow, Mobile; and Mark F. Muller of Freehill Hogan & Mahar, New York, New York, for appellants.
    Kendall C. Dunson and J. Cole Portis of Beasley, Allen, Crow, Methvin, Portis & Miles, PC, Montgomery; and David A. Bagwell, Fairhope, for appellees.
   MAIN, Justice.

Groton Pacific Carriers, Inc. (“Groton Pacific”), and International Tanker Management Holding LTD. (“ITM”) appeal from a judgment in the amount of $4,851,125 entered in favor of Carl Jackson, as personal representative of the estate of Carl L. Williams, deceased, and as next friend of Camren Lamarcus Williams, Jayden Eugene Williams, and Cartez La-bruce Williams, minors; and Edward L. Purdue. We reverse and remand.

I. Facts and Procedural History

This appeal arises from an accident that occurred on the Mobile River. Purdue and Williams were working for Mo-Bay Shipping Services, Inc. (“Mo-Bay”), as line handlers. Mo-Bay provides line-handling services to vessels docking and undocking at various terminals in the Port of Mobile. Mo-Bay’s line handlers retrieve the mooring lines from vessels and secure the lines to shore-side bollards or offshore mooring dolphins. Although Mo-Bay’s line-handling services are typically performed by employees working dockside, its operation often requires the use of small boats to run out to retrieve the mooring lines from a vessel and then to transport and secure the lines to mooring dolphins or shore-side bollards. Mo-Bay maintains a small fleet of two-man motorized 17-foot boats for use in its line-handling services.

Purdue and Williams sometimes worked on these line-handling boats. On June 19, 2008, they were dispatched by Mo-Bay to meet the MT Glenross, an ocean-going tanker; they were to use a Mo-Bay boat to transport the Glenross ⅛ steel mooring lines from where the Glenross was anchored to shore-side bollards located a few hundred yards away. The accident occurred while Purdue and Williams were handling one of the Glenross’s mooring lines. The mooring line, a steel cable, was lowered to Purdue and Williams, who secured the line to the Mo-Bay boat. After the line was secured to the boat, Williams yelled up for the Glenross’s crew to let out more slack so the boat could pull the line toward shore. Rather than more line letting out, however, the line began to “heave in” or retract. As a result of either a mechanical problem with the ship’s winch or improper operation of the winch by the Glenross’s crew, the mooring line continued to be reeled in, and the boat Williams and Purdue were in, which was connected to the line, was pulled out of the water and up the side of the Glenross ⅛ hull. Williams and Purdue held onto the boat as it was lifted from the water. The boat, however, broke free from the line, fell into the river, and capsized. Williams and Purdue, who were not wearing life vests, fell into the water. Purdue was able to climb atop the capsized boat and was rescued. Williams, who could not swim, drowned.

On October 28, 2008, Purdue and Jackson, as personal representative of Williams’s estate and as next of friend of Williams’s minor children, filed this action in the Mobile Circuit Court. The complaint named Purdue and Williams’s employer, Mo-Bay, as a defendant. The complaint also named the Glenross’s managers, Groton Pacific and ITM, and its owner, Cypress Glennross, LLC (“Cypress”), as defendants.

Count one of the complaint alleged that Purdue and Williams were “Jones Act seamen” and asserted a Jones Act, 46 U.S.C. § 30104, claim against Mo-Bay. The complaint asserted that Mo-Bay had failed to provide appropriate safety equipment, including life preservers and safety devices designed to release an attached mooring line from the line-handling boat before the boat is picked up from the water. Count one additionally alleged general maritime-law claims of negligence and unseaworthiness against Groton Pacific, ITM, and Cypress. Count one also made an alternative claim that Purdue and Williams were longshoremen and/or harbor workers entitled to recover from Groton Pacific, ITM, and Cypress under the Longshore and Harbor Workers’ Compensation Act (“the LHWCA”), 38 U.S.C. § 901 et seq.

Count two of the complaint asserted claims under Alabama law, including a wrongful-death claim. The complaint conceded that the claims in count two were made to preserve those claims “[i]n the unlikely event that the Court should decide that these claims do not fall within the maritime and admiralty jurisdiction of the United States.” Count two was voluntarily dismissed before trial.

Mo-Bay denied that Purdue and Williams were Jones Act “seamen” and moved for a summary judgment, arguing that Purdue and Williams were instead harbor workers covered by the LHWCA and thus unable to sue Mo-Bay because harbor workers may recover only compensation benefits from their employer. In support of its motion for a summary judgment, Mo-Bay submitted the affidavit testimony of the president of Mo-Bay, William Lott. Lott testified regarding the duties of Mo-Bay’s line-handling personnel and also testified specifically regarding Purdue’s and Williams’s work for Mo-Bay. Lott testified, in part:

“4. Typically, Mo-Bay is contacted by the agent for an incoming or outgoing vessel and is informed of how many, at what time and at what location line handlers are needed for docking or un-docking. Mo-Bay then contacts its line handlers and instructs them to report to said location at said time in order to perform the line handling. In some instances, the line handlers report to Mo-Bay’s office where a van will transport the workers to the specified dock....
“5. Certain terminals in the Port of Mobile have positioned some of their mooring bollards, not on shore, but on top of mooring dolphins located a short distance from the shore.... While some of these dolphins are so near the shore that they could be accessed by a line handler from shore, the normal practice is to put two or three line handlers in a small line handling boat, but then drive out to the dolphin_Once at the dolphin, one of the line handlers will then climb onto the dolphin while the other line handlers will receive the ship’s lines and transport them to the dolphin where the lines are secured to the bollard by the line handler on the dolphin.... On this type of job, another Mo-Bay crew of line handlers will also be simultaneously handling lines on the dock.
“6. On each job, whether a particular line handler is assigned to work with the shore side crew or with a line handling boat crew is left completely up to the Mo-Bay management or the men working that specific job. No line handlers are ‘assigned’ as crew members of a line handling boat and each individual line handler is subject to being put on the shore or in the line handling boat.
“7. If required to work from a line handling boat, on average, and including the travel time from shore to the vessel and back, line handlers would spend approximately one to one and one-half hours in the line handling boat. If, on a particular job, a line handler was assigned to work from the mooring dolphin, he would then only spend the travel time in the boat. These line handlers were never required to work beyond the confines of The Mobile River or terminals located along Mobile Bay.
“8. At no time are any line handlers required to sleep or eat their meals aboard a line handling boat. Each line handler is free to return to his home or desired destination at the completion of each line handling job. Furthermore, none of the line handlers are required to have seaman’s papers, a Coast Guard license, or sign any ship’s articles. Finally, none of the line handlers at Mo-Bay are designated as crew members of any line handling boat.
“9. One of Mo-Bay’s employees, Edward Purdue, has been employed with Mo-Bay for approximately thirteen (13) years. Purdue’s years of experience at Mo-Bay have led to his status as a somewhat ‘senior’ employee in terms of his experience and responsibilities. During that time, the majority of Purdue’s work has involved crew transportation/delivery jobs and on shore mooring jobs. Purdue typically received instructions from his shore side supervisors at Mo-Bay as to what transportation/delivery or line handling jobs he would need to perform on a given day. On certain irregular and sporadic occasions, Purdue was required to work a line handling boat on the mooring dolphin jobs. Whether or not Purdue was needed to work the line handling boat on a mooring dolphin job was completely dependent upon the, particular needs that a given terminal or incoming/outgoing vessel may have on a particular day as well as on what other available line handlers were available to work for Mo-Bay on that given day.
“10. Another line handler for Mo-Bay was Carl Williams. Carl Williams was a part-time line handler who began his employment with Mo-Bay on May 7, 2007. From May through December of 2007, Williams irregularly and sporadically worked shore side and mooring dolphin line handling jobs for Mo-Bay. Sometimes he would work completely shore side, sometimes in a line handling boat and sometimes from the mooring dolphin. Like Purdue, his work assignments were based on the particular needs that a given terminal or incoming/outgoing vessel may have on a particular day along with the availability of other line handlers at Mo-Bay. From December 28, 2007 until March 16, 2008, Williams did not work at all for Mo-Bay. From March 17, 2008 until the date of this accident, a period of approximately three (3) months, Williams worked irregularly and sporadically, averaging twelve (12) line handling jobs per month.
“11. Typically, Purdue and Williams would be contacted by a line handling supervisor and would be instructed on where to report for a job. When required to work in a line handling boat, they would then travel to the jobsite, prepare the line handling boat for the job, launch the line handling boat, ride in the line handling boat to the vessel or dolphin, perform the job (which often times included getting out of the boat and working from a mooring dolphin or getting out of the boat to reach an on shore bollard) and then ride in the boat back to shore.
“12. Purdue and Williams both received their instructions from a shore-side dispatch for Mo-Bay. There was no set schedule by which line handlers worked from. Their job assignments were completely based upon the various needs and times that vessels would arrive into the Port of Mobile and upon the decisions of Mo-Bay.”

Mo-Bay asserted that because Williams’s and Purdue’s use of the line-handling boats was only irregular and sporadic, they did not qualify as “seamen” entitled to bring a Jones Act claim.

Jackson and Purdue opposed Mo-Bay’s summary-judgment motion and argued that there was a question of fact as to whether Williams and Purdue were to be properly classified as “seamen” entitled to bring a Jones Act claim against Mo-Bay or whether they were to be classified as “harbor workers,” whose sole remedy against Mo-Bay was compensation benefits under the LHWCA. Although Jackson and Purdue conceded that a recovery under the Jones Act and a recovery under the LHWCA were mutually exclusive, they contended that they were entitled to assert both claims in the alternative and allow the jury to determine under which act they were due recovery. In response to Mo-Bay’s assertion that their work on the boats was irregular and sporadic, Jackson and Purdue presented evidence indicating that Williams and Purdue worked regularly on the line-handling boats. Indeed, they submitted summaries of Mo-Bay’s job tickets that showed that during the year preceding the accident, Purdue had worked an average of 5 days a week for Mo-Bay, and had performed 470 line-handling jobs. Of those 470 jobs, 214 involved use of a line-handling boat. In other words, 45% of Purdue’s line-handling jobs in the year preceding the accident involved the operation of a line-handling boat. Although Williams had worked only 98 jobs for Mo-Bay in the year preceding the accident, 93, or approximately 95%, of those jobs involved the use of a boat. Purdue testified that he normally used the same line-handling boat. Jackson and Purdue argued that Williams’s and Purdue’s regular work on a vessel, which subjected them to the “perils of sea,” raised a question of fact as to whether they were “seamen” entitled to bring a claim against Mo-Bay under the Jones Act, thus precluding a summary judgment. The trial court agreed and denied Mo-Bay’s motion for a summary judgment.

Following the denial of Mo-Bay’s summary-judgment motion, Mo-Bay and its workers’ compensation insurer reached a settlement with Purdue and Jackson for the payment of workers’ compensation benefits. Before the settlement, Jackson and Purdue had filed a separate proceeding before an administrative law judge with the United States Department of Labor seeking LHWCA workers’ compensation benefits from Mo-Bay and its workers’ compensation insurer. In that proceeding, Mo-Bay, Purdue, and Jackson stipulated in writing that Purdue and Williams were harbor workers, subject to “the exclusive jurisdiction of the [LHWCA] ... for workers’ compensation benefits determination for each injury/death.” The settlement agreement was approved by the administrative law judge by a formal “Decision and Order Approving Settlement.” As a part of the settlement, Purdue and Jackson agreed to voluntarily dismiss their Jones Act claim against Mo-Bay and granted Mo-Bay’s insurer a lien over any recovery they might obtain from Groton Pacific and/or ITM. Groton and ITM were not parties to the settlement agreement or the administrative proceedings in the Department of Labor.

Before the trial in this ease, Groton Pacific, ITM, Jackson, and Purdue each filed motions seeking a ruling from the trial court as to Williams’s and Purdue’s status as seamen. The parties agreed that the classification was important to identifying the types of damages available should Jackson and Purdue prevail at trial. Gro-ton Pacific and ITM argued, in part, that, if Williams and Purdue were classified as “seamen,” as opposed to harbor workers, their claims must proceed as general maritime-negligence claims, which do not permit nonpecuniary damages. As Jackson and Purdue explained in their brief to the trial court:

“It makes a major difference in this case whether these two workers were Jones Act seamen on the one hand, or on the other, harbor workers covered by the [LHWCA]. If the men were Harbor Workers as Mo-Bay and the workers themselves agree they were, then they are entitled to claim from the ship (1) non-pecuniary damage[ ] such as loss of society, and (2) punitive damages. But if they were the Jones Act seamen of Mo-Bay, they are clearly not entitled to claim non-pecuniary damages, and arguably not punitive damages, which are major parts of the claimed damages in this case.”

Thus, although Jackson and Purdue had previously argued in their response to Mo-Bay’s summary-judgment motion that substantial evidence supported Williams’s and Purdue’s classification as “seamen,” in response to Groton Pacific and ITM’s motion for a summary judgment they argued that they were due to be classified as harbor workers. Specifically, they argued that the Department of Labor’s approval of their settlement with Mo-Bay for compensation benefits under the LHWCA constituted a “formal award” of LHWCA benefits that effected a formal adjudication of their status as harbor workers. Although the trial court dismissed the state-law claims and the unseaworthiness claim, it denied Groton Pacific and ITM’s motion for a summary judgment on the remaining claims.

Before trial, the trial court ruled, as a matter of law, that Williams and Purdue were harbor workers. The trial court also denied Groton and ITM’s request that the jury be permitted to determine whether Williams and Purdue were seamen or harbor workers. Upon finding Williams and Purdue to be harbor workers, the trial court ruled that the plaintiffs could recover nonpecuniary damages and punitive damages and charged the jury accordingly. Finally, the trial court denied Groton Pacific and ITM’s request that Mo-Bay, as a settling tortfeasor, be added to the special-verdict form so that the jury could assess Mo-Bay’s percentage of fault for Williams’s and Purdue’s injuries.

The case was tried before a jury between December 3-11, 2012. The jury returned a verdict in favor of Jackson and Purdue; it returned a verdict in favor of Jackson in the amount of $5,081,000, which included $231,000 for lost wages and benefits; $300,000 for physical pain and suffering; $550,000 for mental anguish; $2,250,000 for loss of nurture for Williams’s children, and $1,750,000 in punitive damages, and in favor of Purdue in the amount of $670,500, which included $500 for lost wages and benefits; $20,000 for physical pain and suffering; $250,000 for mental anguish; and $400,000 in puni-

five damages. The jury also found Purdue and Williams guilty of 25% comparative fault. The trial court then reduced the compensatory damages by 25% and entered the following judgments:

Carl L. Williams, deceased
Lost wages and benefits: $ 173,250
Physical pain and suffering: $ 225,000
Mental anguish: $ 412,500
Loss of nurture for children: $1,687,500
Punitive damages: $1,750,000
Total: $4,248,250
Edward L. Purdue
Lost wages and benefits: $ 375
Physical pain and suffering: $ 15,000
Mental anguish: $ 187,500
Punitive damages: $ 400,000
Total: $ 602,875

Groton Pacific and ITM filed a posttrial motion seeking a new trial or, alternatively, a remittitur. In support of their motion for a new trial, Groton Pacific and ITM argued that the trial court- had erred in failing to find that Williams and Purdue were seamen or by failing to-submit the seaman-status issue to the jury. Following a hearing, the trial court denied the motion for new trial or for a remittitur. Groton Pacific and ITM appeal.

II. Analysis

On appeal, Groton Pacific and ITM argue that the trial court erred in ruling before trial that Williams and Purdue were harbor workers. Groton and ITM argue that that ruling led the trial court into a number of subsequent legal errors, including incorrectly charging the jury, particularly with respect to the type of damages available, and refusing to allow the jury to apportion any fault to Mo-Bay, Williams’s and Purdue’s employer. Groton Pacific and ITM further argue that the trial court erred in submitting punitive and other nonpecuniary damages to the jury and that the damages awarded are excessive.

We must first determine whether the trial court correctly ruled, as a matter of law, that Williams and Purdue were harbor workers entitled to assert claims against Groton Pacific and ITM pursuant to 33 U.S.C. § 905(b) of the LHWCA. Because only a question of law is presented, our review of this issue is de novo. See Continental Nat’l Indem. Co. v. Fields, 926 So.2d 1033, 1035 (Ala.2005) (“[W]e review de novo the trial court’s interpretation of statutory language and ... previous caselaw on a controlling question of law.”).

The LHWCA was created to establish a compensation scheme for injured maritime workers. An injured longshoreman or harbor worker may bring an action under the LHWCA against his or her employer for workers’ compensation benefits, 33 U.S.C. § 904, and against an owner or agent of a vessel for negligence, 33 U.S.C. § 905(b). Under the terms of the LHWCA, however, a person does not qualify as an “employee” entitled to bring a claim under the LHWCA if that person is “a master or member of a crew of any vessel.” 33 U.S.C. § 902(3)(G). The United States Supreme Court has held that the phrase “master or member of a crew” as used in the LHWCA is merely a “refinement” of the of the term “seaman” as used in the Jones Act, 46 U.S.C. § 30104. McDermott Int’l, Inc. v. Wilander, 498 U.S. 337, 348, 111 S.Ct. 807, 112 L.Ed.2d 866 (1991); Southwest Marine, Inc. v. Gizoni, 502 U.S. 81, 87, 112 S.Ct. 486, 116 L.Ed.2d 405 (1991). The Jones Act permits a “seaman injured in the course of employment” to bring suit against his or her employer. 46 U.S.C. § 30104. Although Jackson and Purdue do not assert Jones Act claims against Groton Pacific and ITM, whether Williams and Purdue were “Jones Act seamen” determines whether their negligence cause of action falls under the general maritime law, or ■ whether it may be asserted under § 905(b) of the LHWCA. Thus the seaman-status question is the critical foundational inquiry in this case.

The parties generally agree that the question of Williams’s and Purdue’s status — seaman versus harbor worker — is important in this case because the answer to this inquiry affects the types of damages available. Without wading too deeply into the stormy waters of maritime-damages law, we note that nonpecuniary damages are generally available to harbor workers injured or killed in territorial waters. See Sea-Land Servs., Inc. v. Gaudet, 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974). On the other hand, general maritime law does not, in most cases, allow recovery of nonpecuniary damages for the injury or wrongful death of a seaman. See Miles v. Apex Marine Corp., 498 U.S. 19, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990). Thus, a plaintiffs status must be decided in order to fix what categories of damages the jury may award.

As the United States Supreme Court has confessed, “[t]he federal courts have struggled over the years to articulate generally applicable criteria to distinguish among the many varieties of maritime workers, often developing detailed multi-pronged tests for seaman status.” Chandris, Inc. v. Latsis, 515 U.S. 347, 356, 115 S.Ct. 2172, 132 L.Ed.2d 314 (1995). In Frazier v. Core Industries, Inc., 39 So.3d 140 (2009), we detailed the federal statutory history and caselaw giving rise to the Supreme Court’s current two-pronged test to determine seaman status. That test, articulated by the Supreme Court in Chan-dris, provides:

“[T]he essential requirements for sea-man status are twofold. First, ... ‘an employee’s duties must “contribut[e] to the function of the vessel or to the accomplishment of its mission.” ’ ...
“Second, and most important for our purposes here, a seaman must have a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both its duration and its nature.”

515 U.S. at 368, 115 S.Ct. 2172 (citations omitted). Moreover, given the questions of fact often involved in determining seaman status, the inquiry is normally one for a jury. See Wilander, 498 U.S. at 355-56, 111 S.Ct. 807.

“The seaman inquiry is a mixed question of law and fact, and it often will be inappropriate to take the question from the jury. Nevertheless, ‘summary judgment or a directed verdict is mandated where the facts and law will reasonably support only one conclusion.’ ”

Harbor Tug & Barge Co. v. Papai, 520 U.S. 548, 554, 117 S.Ct. 1535, 137 L.Ed.2d 800 (1997) (quoting Wilander, 498 U.S. at 356, 111 S.Ct. 807). See also Chandris, 515 U.S. at 369,115 S.Ct. 2172.

In this case, Groton Pacific and ITM argue that the trial court incorrectly ruled before trial, as a matter of law, that Williams and Purdue were harbor workers. They argue that the undisputed evidence establishes that Williams and Purdue were “seamen,” or at the very least requires that the question of their status as seamen be submitted to the jury. Jackson and Purdue concede that the evidence in this case normally would create a jury issue. They argue, however, that once their settlement agreement for compensation benefits under the LHWCA was approved by order of an administrative law judge, it became a “formal award” establishing Williams’s and Purdue’s harbor-worker status and that that finding was binding on the trial court.

First, we reject the argument that the settlement agreement between Jackson, Purdue, and Mo-Bay, approved in a proceeding before the United States Department of Labor, bound the trial court to a finding that Williams and Purdue were harbor workers, as a matter of law. In support of their argument, Jackson and Purdue rely on the case of Sharp v. Johnson Bros. Corp., 973 F.2d 423, 426 (5th Cir.1992). In Sharp, an employee was injured while performing bridge-repair work. The employee sued his employer under the Jones Act and filed a claim under the LHWCA. The worker eventually reached a settlement with his employer with regard to his claim for compensation under the LHWCA; that settlement was approved by an administrative law judge of the Department of Labor. The court in Sharp, citing the holding in Southwest Marine, Inc. v. Gizoni, 502 U.S. 81, 91, 112 S.Ct. 486, 116 L.Ed.2d 405 (1991), that an employee who accepts voluntary payments from his employer under the LHWCA without a “formal award” is not barred from pursuing a Jones Act claim against his employer, held that the order approving the settlement constituted a “formal award” that barred the employee from pursuing the Jones Act claim against his employer for the same injuries.

Jackson and Purdue’s reliance on Sharp in this case is misplaced. Sharp stands for the unremarkable principle that once an employee litigates and reaps the benefits of his LHWCA compensation claim against his employer, he cannot then sue his employer as a “seaman” seeking a second recovery for the same injury. 973 F.2d at 427 (“[T]he LHWCA was not intended to be a ‘stepping stone on the way to a jury award.’ ”). In this case, however, Groton Pacific and ITM, alleged third-party tortfeasors, were not parties to the settlement agreement or to the Department of Justice proceeding, and Williams’s and Purdue’s harbor-worker/seaman status is an element of proof required to recover against Groton Pacific and ITM under 33 U.S.C. § 905(b). It would be a gross violation of Groton’s and ITM’s due-process rights to relieve Jackson and Purdue of their burden of proof on an element of their claim and preclude Groton Pacific and ITM from a full and fair opportunity to contest Williams’s and Purdue’s seaman status on the basis of a private settlement agreement and proceeding to which Gro-ton Pacific and ITM were not parties. See Blonder-Tongue Labs., Inc. v. University of Illinois Found., 402 U.S. 313, 329, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971). The holding in Sharp, which limits an injured maritime employee’s ability to seek multiple recoveries from his employer for the same injury under mutually exclusive statutes, does not support the offensive application of the collateral-estoppel doctrine urged upon us by Jackson and Purdue. Accordingly, we hold that the Department of Labor administrative law judge’s order approving Jackson’s and Purdue’s settlement for LHWCA compensation benefits did not establish, as a matter of law, for purposes of this case that Williams and Purdue were harbor workers.

Because the Department of Labor proceeding did not establish Purdue’s and Williams’s status as a matter of law, we must apply the two-pronged Chandris test to the facts before us. The Supreme Court has recognized that meeting the first prong of the Chandris test is not an overly difficult task: it need only be established that the maritime employees “do the ship’s work.” 515 U.S. at 368, 115 S.Ct. 2172. The Supreme Court has stated that this threshold requirement is “very broad,” covering “[a]ll who work at sea in the service of a ship.” Id. Applying this “very broad” and inclusive test to the facts at hand, there is at least evidence indicating that Williams and Purdue contributed to the function of the line-handling vessel. Purdue operated the boat and Williams was serving as deckhand — they were doing the vessel’s work.

The second Chandris prong, however, is a more exacting test. To meet this requirement, it must be shown that a maritime employee has “a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both its duration and nature.” 515 U.S. at 368,115 S.Ct. 2172.

“The fundamental purpose of this substantial connection requirement is to give full effect to the remedial scheme created by Congress and to separate the sea-based maritime employees who are entitled to Jones Act protection from those land-based workers who have only a transitory or sporadic connection to a vessel in navigation, and therefore whose employment does not regularly expose them to the perils of the sea.”

Id. The Supreme Court has explained that this test is “fundamentally status based.” 515 U.S. at 361, 115 S.Ct. 2172. “Land-based maritime workers do not become seamen because they happen to be working on board a vessel when they are injured, and seamen do not lose Jones Act protection when the course of their service to a vessel takes them ashore.” Id. The crux of the second Chandris prong involves distinguishing land-based from sea-based employees by examining the employee’s activities and duties. Scheuring v. Traylor Bros., Inc., 476 F.3d 781, 786 (9th Cir.2007).

In the present case, there is substantial evidence of Williams’s and Purdue’s sea-based job activities, namely the handling of ships’ lines from aboard a 17-foot boat. Purdue’s job duties included operating the line-handling boat; Williams served as a deckhand, required to fetch a ship’s mooring line and attach it to their small craft to be pulled to shore. The question, however, is not only whether Williams and Purdue had a connection with a vessel or fleet of vessels — clearly they did; the question is, rather, whether that connection was so substantial in duration and nature as to render each of them a “seaman.” Here the evidence in the record is disputed.

Mo-Bay’s president testified that Williams’s and Purdue’s work in the line-handling boats was “irregular and sporadic.” He testified that the majority of Purdue’s duties at Mo-Bay consisted of shore-side transportation and delivery jobs and shore-side line-handling duties. He testified that whether Purdue was needed to work the line-handling boat was completely dependent upon the particular needs of the day and what other personnel were available to work.’ Purdue, on the other hand, testified that he worked on the line-handling boat nearly every day, and he produced a summary of job tickets showing that approximately 45% of the line-handling jobs he performed involved his use of a Mo-Bay boat.

The job-ticket summary also indicates that when Williams worked, he nearly always worked a line-handling job that involved the use of one of Mo-Bay’s boats. However, as Mo-Bay’s president testified, Williams was a ' part-time worker who worked only sporadically for’ Mo-Bay. In the 3 months before the accident, he worked an average of only 12 jobs per month. Mo-Bay’s president testified that “[sjometimes he would work completely shore side, sometimes in a line handling boat and sometimes from the mooring dolphin.” Like Purdue, his work assignments were based on Mo-Bay’s needs for that particular day.

Mo-Bay’s president testified that each line handler would spend no more than an hour to an hour and a half in the boat. Purdue and Williams did not sleep or eat their meals on the boat. They did not have seaman’s papers or a Coast Guard license, nor did they sign any ship’s articles. Mo-Bay did not formally designate Williams or Purdue as members of any crew.

We conclude that the evidence related to Williams’s and Purdue’s seaman status raises a genuine issue of material fact warranting jury consideration. See Delange v. Dutra Constr. Co., 183 F.3d 916 (9th Cir.1999) (holding that whether a barge worker who occasionally performed work typically done by deckhands, securing and stowing cargo, handling lines, and serving as a lookout, was a seaman was a question for jury). Accordingly, we conclude that the trial court erred in ruling as a matter of law that Williams and Purdue were harbor workers.

We reverse the judgment of the trial court and remand the case for a new trial, which should include the submission for resolution by the jury of the issue of Williams’s and Purdue’s seaman status. Because we are reversing the judgment of the trial court, we do not address the issues related to the type and amount of damages awarded by the jury or the issues related to the verdict form.

III. Conclusion

We reverse the judgment of the trial court and remand the case for a new trial.

REVERSED AND REMANDED.

MOORE, C.J., and BOLIN,

MURDOCK, and BRYAN, JJ., concur.

      . According to the record, a "bollard” is an iron post firmly fixed in concrete along a wharf, around which to fasten a ship’s mooring lines, and a "mooring dolphin” is an offshore structure for mooring ships.

      .Groton Pacific and ITM moved for a summary judgment. As part of their motion, Gro-ton Pacific and ITM sought dismissal of all claims for nonpecuniary damages and punitive damages. Jackson and Purdue opposed the summary-judgment motion and moved for a judgment as a matter of law as to Groton Pacific and ITM's "Jones Act defense.”

      . The trial court refused Groton Pacific and ITM’s proposed charges instructing the jury that punitive damages were not recoverable and limiting the recovery to nonpecuniary damages.

      . Jackson and Purdue never obtained service of process on Cypress, and Cypress was dismissed from the action before trial.

      . For a full discussion of some of the debates concerning maritime damages, see Attilio Costabel, Waiting for Gaudet: Charting A Course After Atlantic Sounding Co. v. Townsend, 24 St. Thomas L.Rev. 502 (2013); Thomas Galligan, Jr., Death at Sea: A Sad Tale of Disaster, Injustice, and Unnecessary Risk, 71 La. L.Rev. 787 (2011); and David Robertson, Punitive Damages in U.S. Maritime Law: Miles, Baker, and Townsend, 70 La. L.Rev. 463 (2010).

      . Groton Pacific and ITM argue that the evidence demonstrates that Williams and Purdue were seamen as a matter of law and cite the "rule of thumb” approved in Chandris, that "[a] worker who spends less than about 30 percent of his time in the service of a vessel in navigation should not qualify as a seaman.” 515 U.S. at 371, 115 S.Ct. 2172. They argue that the evidence showing that more than 30% of William's and Purdue’s line-handling jobs involved use of a boat establishes Williams’s and Purdue’s seaman status as a matter of law. We disagree. The 30% rule is "no more than a guideline" to establish who is not a seaman. Id. The facts in this case, including the percentage of time Williams and Purdue spent in service of a vessel in navigation, were sufficiently disputed to present a jury question.


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    Beverly Renee SHEWBART v. John Michael SHEWBART.
    2120331.
    Court of Civil Appeals of Alabama.
    Oct. 11, 2013.
    Rehearing Denied Feb. 7, 2014.
    See also 19 So.3d 223, 64 So.3d 1080.

      Gary L. Jester of Jester & Holmes, Florence, for appellant.
    Eddie Beason of McDowell, Beason & Hamilton, P.C., Russellville, for appellee.
   MOORE, Judge.

Beverly Renee Shewbart (“the former wife”) appeals from a judgment of the Franklin Circuit Court (“the trial court”) denying her petition for an award of periodic alimony from John Michael Shewbart (“the former husband”). We reverse.

Background

The parties previously have been before this court. See Shewbart v. Shewbart, 19 So.3d 223 (Ala.Civ.App.2009) (“Shewbart I”); and Shewbart v. Shewbart, 64 So.3d 1080 (Ala.Civ.App.2010) (“Shewbart II”). In Shewbart I, this court affirmed the trial court’s judgment divorcing the parties and awarding them joint custody of their minor child; we reversed, however, the trial court’s property division and remanded the cause for the trial court to determine the fair-market value of “Swamp John’s,” a sole proprietorship operated by the former husband (“the sole proprietorship”) and, based on that valuation, to make an equitable division of the marital property and to determine whether an award of periodic alimony to the former wife was appropriate. 19 So.3d at 232-33.

On remand, the trial court received additional ore tenus evidence and, based on that evidence, assigned a value to the sole proprietorship, awarded the former wife $34,993 as her one-half interest in the sole proprietorship, and ordered the former husband to pay the former wife for that interest in 70 installments of $400 per month. The former wife again appealed.

This court reversed the trial court’s property division because of a mathematical error, but we affirmed its denial of the former wife’s request for periodic alimony. 64 So.3d at 1090-91. Although this court concluded that the former wife had established a need for as much as $1,600 per month in financial assistance, this court also concluded that the former wife had failed to establish that the former husband had the financial ability to pay periodic alimony to her, a showing that is necessary to support such an award. Id. at 1090-91. We, however, reversed the trial court’s judgment for failing to reserve the issue of periodic alimony. Id. at 1091.

On June 24, 2011, the former wife filed a petition again seeking an award of periodic alimony. She asserted that she was no longer working and that her only income was the $400 monthly payment she receives from the former husband pursuant to the trial court’s property division. The former husband answered the petition and filed a counterpetition, seeking to compel the sale of the former marital residence, in which the former wife had continued to live, and to compel the sale at public auction of the contents of that residence.

On April 13, 2012, the former husband moved the trial court to approve an offer to purchase the former marital residence for $75,000 and all the contents of that residence for $5,000. On May 31, 2012, the trial court granted the former husband’s motion and approved the offer.

The trial court conducted an ore tenus hearing on December 3, 2012, and, on December 13, 2012, the trial court entered a judgment denying the former wife’s request for an award of periodic alimony. In its judgment, the trial court stated, in pertinent part:

“2. The [former wife] filed a petition asking the Court to award her alimony based on her worsening economic condition and the improved economic condition of the [former husband].
“3. Testimony indicates that the [former wife] quit her job about a year ago. She was working with her brother at that time. The [former wife] has been unemployed since that time. The [former wife] maintains that she is disabled. However, she has not filed for disability with the Social Security Administration. The [former wife] states that she has plans to do so, but has had trouble understanding the forms and plans to go to the Social Security Office for help.
“4. The [former wife] is now living in a government subsidized apartment. The [former wife] has received one-half the proceeds from the sale of the marital home. She resided in the marital residence until the sale of the residence after the parties’ daughter reached majority age.
“5. Testimony indicates that the [former husband] is still self-employed in the restaurant business. His income is consistent with the amount at the time of the divorce trial.
“6. The Court is not inclined to award alimony at this time based on the [former wife] terminating her employment and taking no steps to apply for Social Security disability. The [former wife] very well may be disabled but is taking no steps at this time to pursue the matter.
“It is therefore ORDERED that the requested relief is DENIED. The Court retains jurisdiction to award periodic alimony in the future. The [former wife] needs to take steps to either find employment or pursue a disability claim. The Court will be in a better position to examine the true economic condition of the parties if the [former wife] does so.”

The former wife timely filed her notice of appeal.

The pertinent evidence presented at the December 3, 2012, hearing established the following. The former wife testified that, as of July 2010, she was no longer employed. According to the former wife, before that time she had been working as a secretary for her brother, but, she testified, “it got to be ... only temporary, and then he’s retiring,” and, she testified, she could no longer drive the two-hour round trip to and from that place of employment.

According to the former wife, she had looked for employment elsewhere; she stated that she had applied at nursing homes and various retail stores. She testified, however, that she been unsuccessful in locating employment, which she attributed to her health issues and her lack of training and experience. The former wife testified that she is restricted in her physical abilities due to an unsuccessful back surgery, arthritis in both knees, and torn ligaments in her left knee, which, she testified, she had sustained in 2010. She testified that, after disclosing those limitations on her employment applications, she had not received a single call back for an interview.

The former wife testified that she might qualify for Social Security disability income. According to the former wife, four to five months before the December 2012 hearing, she had begun an online application for Social Security disability benefits, but, because she had not understood the questions, she had not completed that application. As a result, the former wife testified that, at the time of the December 2012 hearing, her sole income was the $400 monthly payment she was receiving from the former husband for her one-half interest in the sole proprietorship. She acknowledged that she had qualified for food stamps in 2011 but that she had been “too ashamed” to “go back and get them.”

The former wife testified that, after the parties’ child had reached the age of majority in April 2010, the former wife had continued to live in the marital residence; the former wife admitted that she had not paid the mortgage payments or any of the utility expenses while she had lived there. She testified that she had moved out of that residence in June 2012, after the trial court had ordered the residence and its contents to be sold. The former wife acknowledged that she had received one-half of the net proceeds from the sale of the residence, i.e., $10,051.50, and that she had received all the proceeds from the sale of the contents of that residence, i.e., $5,000.

The former wife testified that, after moving out of the marital residence, she had lived with her mother and another family member until August 2012, when she had moved into government-subsidized housing, where she remained at the time of the December 2012 hearing. According to- the former wife, her rent is $30 per month because it is calculated as a percentage of her monthly income, which is $400.

The former wife testified that she has no health insurance, and she admitted that she had not applied for Medicaid coverage. She testified that she did not think she would qualify for Medicaid coverage because she had not yet been found to be disabled. The former wife testified that she requires prescribed medications for her health conditions, which include attention deficit hyperactivity disorder, bipolar disorder, depression, irritable bowel syndrome, and blood pressure and thyroid problems. According to the former wife, her regular maintenance prescriptions would cost her approximately $300 per month, but, she testified, she did not have sufficient income to pay for those medications while also covering her other monthly expenses.

The former wife presented an itemized budget of her projected monthly expenses totaling $1,785. That amount included an increased amount for rent; prescription medications and fees for doctor visits; food; utilities; fuel, liability insurance, and maintenance on her 2003 automobile; expenses associated with dental work that the former wife indicated she needs; a monthly payment to her lawyer toward her outstanding legal fees; and other typical living expenses. The former wife testified that she had been using the proceeds she had received from the sale of the marital residence and from the sale of the contents of that residence to meet her monthly expenses. She also requested that the $400 she receives each month for her interest in the sole proprietorship not be credited toward her monthly expenses because those monthly payments would terminate in the near future.

The former husband’s testimony established that he continues to live rent-free in the shop behind his parents’ home and that he was living there with his new wife and stepson. The former husband testified that he had purchased other property on which he and his new wife intended to live but that that property was under renovations at the time of the December 3, 2012, hearing. The former husband also testified that his business interests were organized basically as they had been at the time of the previous hearings. According to the former husband, the sole proprietorship provided his primary source of income.

The former husband testified that he does not pay himself a salary out of the income generated by the sole proprietorship but that he had paid his personal expenses from that income and had withdrawn cash from the sole proprietorship as needed. He also acknowledged that he has one business checking account for the sole proprietorship, two personal checking accounts in his name alone, and another checking account held jointly with the parties’ adult child, who is married and attending college. According to the former husband, all of those accounts were funded almost exclusively from the operations of the sole proprietorship.

The former husband’s 2010 federal income-tax return indicates that the sole proprietorship had gross receipts of $1,167,470 in 2010 but that, after deducting the cost of goods, the sole proprietorship’s net income had been $311,356. After deducting depreciation and tax credits, the former husband’s tax return indicated that his taxable income for 2010 had been $49,911. In 2011, the former husband had reported higher gross receipts of $1,194,000 but a lower total taxable income of $42,343.

The former husband also testified that he had begun operating a new business, i.e., “John Shewbart Backhoe and Landscaping,” in 2010. He testified that “I’ve got some construction equipment we use mostly on our own property, but I do work ... for other people a little bit.” As to that business, the former husband had claimed income in 2010 of $3,700 and depreciation of his equipment in the amount of $18,286, for a net loss of $16,156, which was offset against his combined net income. In 2011, the former husband had reported $1,600 in income from the backhoe business, but after calculating depreciation and other expenses, the former husband had reported a net loss of $10,361. That loss also had been offset against his 2011 combined net income.

Also introduced into evidence was a “personal financial statement” that the former husband had submitted to a bank in June 2011 in support of a loan application. On that statement, the former husband had indicated that, as of 2011, his net worth was $423,137 while his liabilities totaled only $72,347. On that statement, the former husband had listed the following: 2010 annual income of $59,376; the value of his then real-estate holdings as $382,-000; $27,484 as the amount of “cash on hand and in banks”; personal property valued at $76,000; “contents” valued at $10,000; and secured and unsecured debts of $72,347, including the $51,434 that had been owed on the marital residence, which was subsequently sold. The former husband testified that the purpose of the $41,000 loan he had been seeking was to purchase a catering truck, “to keep [him] in business and [to] keep [the parties’ child] in college and [to] pay bills.”

The former husband also acknowledged that he had sold timber in January 2010. The former husband testified that, as a result of that sale, he had been paid $96,000. According to the former husband, he had used the proceeds from that sale to assist with the college expenses of the parties’ married, adult child and to purchase the equipment he had been using in the backhoe business. The former husband testified that the balance of those proceeds remained in one of his checking accounts.

The former husband also acknowledged that he had taken cash receipts from his businesses and deposited the cash into one or more of his personal checking accounts. The bank records offered into evidence by the former wife and acknowledged by the former husband established that, in some months, he had deposited into his personal account more than $6,900 in cash. The former husband acknowledged that, in 2011, he had deposited a total of $36,551.81 in cash receipts from his businesses into one of his personal checking accounts and that he had deposited $13,500 in cash receipts from his businesses into his other personal account.

The former husband also acknowledged that, during the first six months of 2011, he had deposited $7,750 into the bank account held jointly by him and the parties’ adult, married child; he testified that he deposited, on average, $1,300 per month into that joint account for the child’s use and that those funds had come from his businesses’ cash receipts, as had the funds deposited into his other accounts. Finally, the former husband admitted that, before the marital residence had been sold, he had paid some of the monthly mortgage payments owed on the marital residence directly from the sole proprietorship’s business account, that a portion of the charges shown on his credit cards were for his personal expenses, and that the sole proprietorship had paid the amounts due on those accounts. The former husband admitted that payments made out of a business account for his personal expenses or cash taken from the business and given to the parties’ child or spent for his personal expenses should be treated as income to him.

Analysis

The former wife asserts on appeal that the trial court exceeded its discretion in denying her petition for periodic alimony. We agree.

In order to obtain periodic alimony, the former wife first had to establish that a material change in circumstances had occurred since the original reservation of the right to award that benefit. See Crenshaw v. Crenshaw, 816 So.2d 1046, 1048 (Ala.Civ.App.2001). “The obligation to pay periodic alimony may be modified when there has been a material change in the financial or economic needs of the payee spouse and the ability of the payor spouse to respond to those needs.” McKenzie v. McKenzie, 568 So.2d 819, 820-21 (Ala.Civ.App.1990). The burden of proving the existence of a material change in circumstances is upon the moving party. Boudreaux v. Boudreaux, 550 So.2d 1030, 1031 (Ala.Civ.App.1989). The decision to modify periodic alimony lies within the discretion of the trial court and will not be set aside on appeal unless a palpable abuse of that discretion is shown. Thomas v. Thomas, 532 So.2d 1043, 1044 (Ala.Civ.App.1988).

The evidence presented by the former wife proved that her financial condition had worsened since the last hearing relating to her claim for periodic alimony. The former wife testified that, after the last hearing, she had lost her job, had been unable to secure other employment, had moved out of the marital residence where she had been living rent-free, had acquired housing with associated rental costs, and had been living solely off the $400-per-month property settlement she received in the divorce. The former wife further presented evidence indicating that the former husband’s financial condition had substantially improved since the time of the last hearing, when he was earning $276 per week. The evidence showed that, after the last hearing, the husband had deposited into his personal accounts a minimum of $57,801.81 from the cash receipts of his sole proprietorship and new backhoe business, or an average of $4,816.82 per month or $1,111.57 per week. At the same time, he had been relieved of all costs associated with the marital residence, had sold timber for a profit of $96,000, had invested in a new business thereby creating additional tax benefits for himself, and had acquired real property that he intends to use as his personal residence after renovations. The foregoing evidence established that a material change in circumstances had occurred since the trial court had reserved the right to award periodic alimony in its last judgment.

A trial court is not, however, required to modify alimony because of a change in the circumstances of the parties. Ex parte Ederer, 900 So.2d 424, 426 (Ala.2004). When deciding whether to modify alimony, a trial court should also consider the earning capacity of each spouse, the payee spouse’s need for alimony, the payor spouse’s ability to pay alimony, and each spouse’s estate. Kiefer v. Kiefer, 671 So.2d 710, 711 (Ala.Civ.App.1995). “In weighing those factors, a trial court essentially determines whether the petitioning spouse has demonstrated a need for continuing monetary support to sustain the former, marital standard of living that the responding spouse can and, under the circumstances, should meet.” Shewbart II, 64 So.3d at 1087.

The trial court denied the former wife’s claim for periodic alimony for two reasons. First, the trial court determined that the former wife had voluntarily quit her job and had failed to secure alternative employment. Accepting those findings of fact as conclusive on appeal, see Ex parte Ederer, supra, they do not support the denial of the former wife’s claim for periodic alimony. In Shewbart II, this court concluded that, due to her health problems and lack of training and work experience, the undisputed evidence proved that the former wife had a limited earning capacity of approximately $800 per month. 64 So.3d at 1090. At the December 2012 hearing, the former husband did not present any new or different evidence to substantiate his subjective belief that the former wife could earn more. Under the law-of-the-case doctrine, our judgment as to the extent of the former wife’s earning capacity remains unchanged. Blumberg v. Touche Ross & Co., 514 So.2d 922, 924 (Ala.1987) (“Under the doctrine of the ‘law of the case,’ whatever is once established between the same parties in the same case continues to be the law of that ease, whether or not correct on general principles, so long as the facts on which the decision was predicated continue to be the facts of the case.”). Although the former wife may have voluntarily separated from her employment, that fact does not alter the fact that she could work only part-time and earn approximately $800 per month if employed at her fullest earning capacity. At that rate, as we found in Shewbart II, the former wife still would not be able to earn sufficient income to enjoy her former marital standard of living. 64 So.3d at 1090. Thus, with or without employment, the former wife still proved a need for financial support.

Second, the trial court faulted the former wife for failing to apply for Social Security disability benefits. In Thomas v. Thomas, 406 So.2d 939, 941 (Ala.Civ.App.1981), this court noted that •

“the duty ... to provide [periodic alimony] .... is much more binding than a mere contractual obligation and the duty is not only [owed] to [the recipient former spouse], but also [to] the public lest [the former spouse] become a charge upon it.”

That excerpt illustrates that periodic alimony is intended, at least in part, to provide support for a former spouse in order to prevent the need for government assistance. When a paying spouse has the ability to meet the financial needs of a dependent former spouse, the law places that obligation upon the paying spouse, not the public. Thus, the failure of the former wife to secure Social Security disability benefits does not present a sound justification for denying her claim for periodic alimony.

The former husband admitted that, based on his present income, he had been able to purchase a new home in which he intended to reside with his new family and to financially contribute $1,300 per month to the college education of his adult, married child, to whom he owes no legal obligation. That evidence, along with the evidence relating to his current income, shows, without dispute, that the former husband has the present ability to pay the former wife some amount of periodic alimony. “The failure to award alimony, although discretionary, is arbitrary and capricious when the needs of the [recipient spouse] are shown to merit an award and the [payor spouse] has the ability to pay.” Hewitt v. Hewitt, 637 So.2d 1382, 1384 (Ala.Civ.App.1994).

Because the former wife established a need for financial support and the former husband’s financial ability to contribute to her support, we conclude that the trial court exceeded its discretion in denying her petition for periodic alimony. We, therefore, reverse the trial court’s judgment and remand the cause to the trial court for the entry of a judgment consistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

THOMPSON, P.J., concurs in the result, without writing.

      . Out of the proceeds, the former wife testified that she had paid $3,651.50 to her attorney. The former wife’s testimony established that she has an outstanding balance due her attorney in the amount of $19,648.91 and that she is paying $150 per month on that balance.

      . The former wife testified that, if she received periodic alimony, her government-subsidized rent would increase based on her total monthly income but that the maximum she would be required to pay would be $240 per month.

      . The evidence established differing amounts of net income for the former husband in 2010. The testimony for his net income in 2010 ranged from $49,000 to $60,000.

      . On that personal financial statement, the former husband identified four parcels of real property in which he held an interest.


author: THOMPSON, Presiding Judge.

text:
    STATE of Alabama v. Richard Jameel SALIBA.
    2120874.
    Court of Civil Appeals of Alabama.
    Feb. 21, 2014.

      Luther Strange, atty. gen., and Madeline H. Lewis, asst. atty. gen., for appellant.
    Dustin J. Fowler of Buntin, Etheredge & Fowler, LLC, Dothan, for appellee.
   THOMPSON, Presiding Judge.

The State of Alabama appeals from a judgment denying the forfeiture of a Chevrolet Tahoe owned by Richard Jameel Sali-ba (“Richard”).

The record indicates the following. In March 2012, Richard’s son, Richard Michael Saliba (“Michael”), was arrested after he overdosed on illegal drugs while visiting his sister’s apartment. Richard placed Michael in a substance-abuse rehabilitation center in California, where Michael stayed for 90 days. Richard testified that in July 2012, two weeks after Michael returned to Dothan from the rehabilitation facility, Michael was arrested again on a drug charge.

According to Richard, after that incident, Michael was assisting the police, so Richard allowed him to drive the Tahoe. Richard testified that he thoroughly searched the Tahoe for drugs on multiple occasions. He also tested Michael for drugs two or three times a week, in an effort to ensure that Michael was not relapsing.

Despite Richard’s efforts, on the afternoon of August 22 or 23, 2012, Michael was found in the Tahoe in the parking lot of a service station in Dothan. The engine of the Tahoe was still running, and Michael was unconscious with a needle stuck in his arm. Dothan police officers were notified, and, when they arrived at the scene, Michael was disheveled, confused, and groggy. Dothan police officer Jonathon Wha-ley testified that he saw a fresh needle mark, which was still bleeding, on Michael’s arm. Officer Whaley said he also saw an unused hypodermic syringe on the front seat of the Tahoe. A pill vial containing a white powder was on the center console of the Tahoe. A used needle was also discovered in the Tahoe. Bottles were also found, but police could not identify the substances in those bottles at the scene, Officer Whaley said. Michael told police he had Fentanyl. He also told police that a yellow liquid containing white flakes that was in the Tahoe was a friend’s urine and that the white flakes were Adde-rall, an amphetamine for which Michael had a prescription. Michael said he had the urine with him because his parents were testing him for drugs and he hoped to use it to deceive them. Michael testified to the lengths he went to prevent his father from knowing that he was using drugs, including using synthetic urine, which he kept warm by keeping it close to his body, or wrapped in a heating pad, so that it would be body temperature. He would also add soap to the synthetic urine so that it would be frothy when he poured it from his groin area into the cup used for testing.

The State sought the forfeiture of the Tahoe. After the trial, in which evidence was received ore tenus, the trial court entered a judgment finding that Michael had used the Tahoe to transport illegal drugs without Richard’s knowledge or consent. Furthermore, the trial court found that Richard could not have obtained knowledge that Michael was using drugs by the exercise of due diligence, so as to prevent use of the Tahoe for illegal purposes. Therefore, the trial court denied the State’s forfeiture request. The State appealed.

The State contends that the trial court should have ordered the forfeiture of the Tahoe because, it says, Richard was aware of Michael’s drug use and therefore, according to the State, was “on notice” as to Michael’s “intended illegal use” of the Tahoe.

The standard of review in this matter is well settled. On appellate review of a ruling from a forfeiture proceeding at which the evidence was presented ore ten-us, the trial court’s findings of fact are presumed to be correct and a judgment based on those findings will not be reversed unless the record shows it to be contrary to the great weight of the evidence. Kuykendall v. State, 955 So.2d 442, 444 (Ala.Civ.App.2006); and Holloway v. State ex rel. Whetstone, 772 So.2d 475, 477 (Ala.Civ.App.2000). However, “that presumption [of correctness] has no application when the trial court is shown to have improperly applied the law to the facts.” Ex parte Board of Zoning Adjustment of the City of Mobile, 636 So.2d 415, 417 (Ala.1994).

There is no dispute that illegal drugs were found in the Tahoe when police responded to the report that Michael was unconscious in the Tahoe; therefore, the vehicle is subject to forfeiture. § 20-2-93(a)(5), Ala.Code 1975. However, Alabama law, provides an affirmative defense to innocent owners of property subject to forfeiture.

Section 20-2-93(h), Ala.Code 1975, provides, in part:

“An owner’s or bona fide lienholder’s interest in any type of property other than real property and fixtures shall be forfeited under this section unless the owner or bona fide lienholder proves both that the act or omission subjecting the property to forfeiture was committed or omitted without the owner’s or lienholder’s knowledge or consent and that the owner or lienholder could not have obtained by the exercise of reasonable diligence knowledge of the intended illegal use of the property so as to have prevented such use.”

See also State ex rel. Williams v. One Glastron Boat, 411 So.2d 795, 796 (Ala.Civ. App.1982) (“lack of knowledge or consent is an affirmative defense, available after the State has made a prima facie case for forfeiture”).

In this case, Richard, as the owner of the Tahoe, had to show “that [he] had no knowledge or notice of the illegal use proved, and could not by reasonable diligence have obtained knowledge of the intended illegal use so as to prevent it.” Air Shipping Int’l v. State, 392 So.2d 828, 830 (Ala.1981). See also Culpepper v. State, 587 So.2d 359, 360 (Ala.Civ.App.1991).

In Culpepper v. State, supra, Janice Cul-pepper’s vehicle was seized when her brother was arrested on drug charges. The trial court entered a judgment forfeiting her vehicle to the State. This court reversed that judgment, concluding that the State had failed to present any evidence indicating that Culpepper knew of her brother’s drug use. 587 So.2d at 360-61. This court reasoned that, although Culpepper’s brother had apparently been using illegal drugs for some time, the State had failed to establish any information available to Culpepper that “should have put Culpepper on notice that ... [her vehicle] would be used for drug purposes.” Id. at 361. Under the circumstances, this court held, reasonable diligence did not require that Culpepper make detailed inquiry into her brother’s use of the vehicle. Id.

In this case, Richard was aware that Michael had abused illegal drugs. However, he sent Michael to an inpatient rehabilitation center, and he received information from the center that Michael had successfully completed its substance-abuse program. The evidence supports a conclusion that when Michael was arrested after his return from his stay at the rehabilitation center, Richard aggressively monitored Michael for a “relapse,” giving him random drug tests two or three times a week and thoroughly searching the Tahoe for signs of illegal drugs.

Richard also testified that he allowed Michael to drive the Tahoe because he believed that Michael was assisting the police. The State presented no evidence to refute that contention. Jay Henry, an investigator with the Houston County district attorney’s office, testified that Richard was diligently working to keep Michael from renewing his use of controlled substances. Furthermore, there was no evidence presented indicating that Michael had been using Richard’s vehicles at the time of his previous arrests.

Based on the record before us, we conclude that the evidence supports the trial court’s determination that Michael’s use of the Tahoe to transport illegal drugs was done without Richard’s knowledge or consent. The evidence also supports a conclusion that Richard was already exercising great diligence in his efforts to determine whether Michael was using illegal drugs, such that he “could not have obtained by the exercise of reasonable diligence” the knowledge that Michael intended to use the Tahoe to transport illegal drugs or to facilitate illegal-drug use. § 20-2-93(h). See also Air Shipping Int’l, supra, and Culpepper, supra.

The State has failed to demonstrate that the trial court erred in refusing to order the forfeiture of the Tahoe. Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.

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


author: DONALDSON, Judge.

text:
    James B. SIZEMORE v. Lanette SIZEMORE.
    2120469.
    Court of Civil Appeals of Alabama.
    Feb. 21, 2014.

      Kevin 0. McKinley, Atmore, for appellant.
   DONALDSON, Judge.

James B. Sizemore (“the father”) appeals from an order of the Monroe Circuit Court (“the trial court”) directing him to incur the travel expenses necessary for the parties’ minor child to visit Lanette Size-more (“the mother”). Because the order appealed from is not a final judgment, we dismiss the appeal.

The mother and the father were apparently divorced pursuant to the terms of a settlement agreement that was incorporated into a judgment apparently entered on November 14, 2006. According to the parties’ filings, the divorce judgment granted the mother and the father joint physical custody of the parties’ only child, M.S. (“the child”), who was born on August 19, 2004. The divorce judgment apparently required the mother and the father to alternate custody, with each having custody of the child 3 and a half days per week.

On April 19, 2007, the father initiated the current action by filing a “Motion for Order to Show Cause and Petition for Modification of Custody.” The father’s pleading initiated a new action, which was docketed as case no. DR-06-61.02. In his pleading, the father sought to hold the mother in contempt for failing to comply with certain provisions of the divorce judgment; specifically, the father alleged that the mother had failed to comply with the divorce judgment by violating its visitation provisions, by failing to make mortgage payments on the marital residence, and by refusing to use insurance proceeds to repair damage to the marital residence. The father also requested that, due to a material change in circumstances, he be awarded sole custody of the child and that the mother be granted supervised visitation. The father contemporaneously filed an ex parte motion for temporary relief, seeking sole custody of the child during the pen-dency of the action, which was granted by the trial court on April 19, 2007. On May 8, 2007, the trial court entered an order granting the mother’s motion to vacate the order granting the father’s ex parte motion for temporary relief and reinstating the custody provisions of the divorce judgment. ■

On May 17, 2007, the mother filed an answer to the father’s April 19, 2007, pleading requesting a modification of custody and seeking to hold the mother in contempt. On June 20, 2007, the mother filed a counterpetition for modification in which she requested sole custody of the child.

Between August 2007 and December 2010, the parties primarily litigated over pendente lite custody and visitation. Upon motion of the father for ex parte “temporary” custody of the child, the trial court entered an order on April 21, 2008, reiterating that custody of the child during the pendency of the action should continue in accordance with the custody provisions of the divorce judgment. Upon yet another ex parte motion for “temporary” custody filed by the father on September 3, 2008, in which the father specifically alleged that the mother’s continuing to share joint custody could impact the health and welfare of the child, the trial court entered on the same date a “temporary” order, to be effective until the trial court entered a judgment after a final hearing, awarding the father sole custody of the child, subject to the mother’s right to visitation with the child at the father’s home under the supervision of the child’s paternal grandmother. An order of the trial court dated September 12, 2008, set the matter for final hearing on November 5, 2008, and ordered the Alabama Department of Human Resources to conduct a home study on the mother’s residence. The November 5, 2008, hearing, however, was continued by the trial court due to the mother’s inability to attend. According to the record, the mother apparently relocated from Monroe County to the State of Nevada around September 2008. The trial court entered orders on November 24, 2008, June 4, 2009, December 7, 2009, and December 6, 2010, setting or modifying a schedule for the mother for unsupervised summertime and holiday visitation with the child. In the orders dated June 4, 2009, December 7, 2009, and December 6, 2010, the trial court stated that it was reserving jurisdiction over all other matters in the cause. On July 24, 2012, the father filed a petition to modify custody and visitation. In that petition, he requested, among other things, that the trial court revoke any previously issued visitation orders entered by the court, that the trial court enter an order “clarifying” that he had been awarded sole physical custody of the child and that the trial court award the mother supervised visitation in Alabama. The father contemporaneously filed an ex parte motion for emergency pendente lite relief and a petition for contempt. In that ex parte motion, the father asserted that the mother had violated a previous order of the trial court by failing to return the child from Nevada following a scheduled visitation and requested that the court enter an order directing the mother to return the child. He also requested that the trial court temporarily suspend the mother’s visitation rights. In the contempt petition, the father sought to hold the mother in civil contempt for failing to return the child pursuant to the previous visitation order.

On August 22, 2012, the trial court entered an order declaring the father’s most recent ex parte motion for emergency relief to be moot because the child had been returned to Alabama. The trial court held a hearing on the father’s remaining July 24, 2012, petitions and motions on November 14, 2012. Following that hearing, the trial court entered an order on November 14 in which it denied the father’s petition to modify the mother’s visitation but granted the father’s petition for contempt, and it awarded the father reimbursement for out-of-pocket expenses he had incurred in having the child transported from Neva: da to Alabama. The trial court further provided in its order that the mother and the father were to coordinate with each other to establish future visitation schedules and that the father would be required to pay for the child’s travel to and from visitations with the mother. On December 12, 2012, the father purported to file a motion to alter, amend, or vacate or, in the alternative, for a new trial. The record reveals that the trial court did not rule upon that motion. The father subsequently appealed to this court.

On appeal, the father contends that the trial court exceeded its discretion by requiring the father to pay the child’s travel expenses to and from scheduled visitations with the mother in Nevada. The father contends that the trial court erred by granting relief that was not requested by either party.

As a threshold matter, this court must first address whether we have jurisdiction over this appeal.

“ ‘[J]urisdictional matters are of such magnitude that We take notice of them at any time and do so even ex mero motu.’ Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987). Generally, an appeal will lie only from a final judgment, and if there is not a final judgment then this court is without jurisdiction to hear the appeal. Hamilton ex rel. Slate-Hamilton v. Connally, 959 So.2d 640, 642 (Ala.2006). A judgment is not final if it fails to completely adjudicate all issues between the parties. Giardina v. Giardina, 39 So.3d 204, 207 (Ala.Civ.App.2009) (citing Butler v. Phillips, 3 So.3d 922, 925 (Ala.Civ.App.2008)).”

Sexton v. Sexton, 42 So.3d 1280, 1282 (Ala.Civ.App.2010). “An order is generally not final unless it disposes of all claims or the rights and liabilities of all parties.” Carlisle v. Carlisle, 768 So.2d 976, 977 (Ala.Civ.App.2000) (citing Rule 54(b), Ala. R. Civ. P., and Ex parte Harris, 506 So.2d 1003,1004 (Ala.Civ.App.1987)).

The underlying action was initiated in April 2007 when the father filed a motion to show cause and a petition for modification of custody. Although the trial court entered various emergency and “temporary” orders concerning custody of the child and addressing the mother’s visitation, at no point in the protracted litigation has the trial court ever entered a final judgment. None of the orders entered by the trial court addresses the father’s initial request for the mother to show cause why she should not be held in contempt for failing to abide by the provisions of the divorce judgment. The issue of contempt remains pending before the trial court. Further, although the trial court awarded the father custody of the child on a “temporary” basis in its September 3, 2008, order, it is apparent from the face of that order that the trial court intended for it to be a “ ‘pendente lite order — which is effective only during the pendency of the litigation and is usually replaced by the entry of a final judgment at the end of the litigation ....’” Scarborough v. Scarborough, 54 So.3d 929, 937 (Ala.Civ.App.2010) (quoting Hodge v. Steinwinder, 919 So.2d 1179, 1182 (Ala.Civ.App.2005)). The September 3, 2008, order was entered ex parte, without the mother being provided an opportunity to respond. Further, the trial court specified in that order that it intended to hold a final hearing on the matter. Our review of the record leads us to conclude that the child remains in the custody of the father pursuant to an ex parte pendente lite order.

Likewise, the trial court’s November 2012 order, which was entered in response to the father’s August 2012 motion seeking modification and enforcement of the trial court’s previous orders, did not make a final determination as to custody or address the issues raised in the father’s April 2007 contempt filing. Thus, the November 14, 2012, order does not constitute a final, appealable judgment.

“ ‘ “When it is determined that an order appealed from is not a final judgment, it is the duty of the Court to dismiss the appeal ex mero motu.” ’ Young v. Sandlin, 703 So.2d 1005, 1008 (Ala.Civ.App.1997) (quoting Powell v. Republic Nat’l Life Ins. Co., 293 Ala. 101, 102, 300 So.2d 359, 360 (1974)).”

Sexton, 42 So.3d at 1283. Accordingly, we dismiss the father’s appeal because it does not arise from a final judgment.

APPEAL DISMISSED.

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

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

      . Neither the divorce judgment nor the settlement agreement are a part of the record on appeal.

      . We note that attached to the mother's brief are documents that are not in the certified record on appeal. Further, Hayden A. Glass, who claims to be the father's current wife and who is not a party to the underlying action, has submitted an affidavit to this court that, too, is not a part of the certified record on appeal.
      “As we have stated on many prior occa- ■ sions, ‘[a]n appellate court is confined in its review to the appellate record, that record cannot be "changed, altered, or varied on appeal by statements in briefs of counsel,” and the court may not "assume error or presume the existence of facts as to which the record is silent.” ' Beverly v. Beverly, 28 So.3d 1, 4 (Ala.Civ.App.2009) (quoting Quick v. Burton, 960 So.2d 678, 680-81 (Ala.Civ.App.2006)).”

        Dreading v. Dreading, 84 So.3d 935, 937 (Ala.Civ.App.2011). Because those additional documents are not a part of the record on appeal, they have not been considered by this court.


text:
    Erik L. MILLIGAN v. Dannette MILLIGAN.
    2120574.
    Court of Civil Appeals of Alabama.
    Feb. 28, 2014.

      Christina L. Dixon, Huntsville, for appellant.
    Amber Yerkey James and Coby McEac-hern Boswell, Huntsville, for appellee.
    Luther Strange, atty. gen., and Sharon E. Ficquette, chief legal counsel, and Jennifer M. Bush, asst. atty. gen., Department of Human Resources, filed a brief on behalf of the appellee.

      .We note that the modification judgment maintained the parties' joint-physical-custody arrangement; however, we treat this argument as one relating to visitation because the parties have framed it as such.

   MOORE, Judge.

Erik L. Milligan (“the father”) appeals from a judgment of the Madison Circuit Court (“the trial court”) to the extent that it modified his child-support obligation, ordered that Dannette Milligan (“the mother”) could claim all the parties’ children-as dependents for income-tax purposes, and ordered that his two oldest children, E.M. and L.M., would not be required to visit with him. We affirm in part and reverse in part.

Procedural History

The parties were divorced by a judgment of the trial court on March 16, 2009; that judgment incorporated a settlement agreement between the parties, which provided, among other things, that the marital home should be placed on the market for sale, that the parties were to continue to reside in the marital home with the children until the marital home sold, and that the father would pay the mortgage on the marital home until it sold. The parties were awarded joint legal and physical custody of the children, with the father’s custodial periods including every other weekend, every Thursday, and alternating holidays. The father was ordered to pay child support in the amount of $1,250 per month after the marital home sold; he was allowed to claim the two oldest children as dependents for income-tax purposes, and the mother was allowed to claim the parties’ youngest child, C.M., for income-tax purposes. Each party was ordered to be responsible for one-half of the children’s medical expenses and expenses for extracurricular activities.

On February 18, 2011, the State of Alabama, on behalf of the mother, filed a petition to modify the father’s child-support obligation. The mother, through her own counsel, subsequently filed an amended petition to request additional relief, including a change in custody. After a trial, the trial court entered a judgment on December 31, 2012, stating, in pertinent part:

“[Although the Court encourages the parties’ daughters, E.M. and L.M. to maintain a relationship with their Father ..., the minor daughters shall not be required to attend the physical custody periods with their Father due to their age, activities, and school-related commitments.
“The Court finds that there has been a substantial change in circumstance since the entrance of the Final Decree in this cause in that neither the [father] nor the [mother] nor the minor children still reside in the marital residence. Although the marital residence has not been sold in compliance with the original agreement, the house has also not been on the market for sale. Therefore, the Court finds that the [father] shall pay to the [mother] the sum of ONE THOUSAND THREE HUNDRED EIGHTY ONE AND 00/100 DOLLARS ($1,381) per month for the support and maintenance of the parties’ minor children.
“In compliance with the guidelines, the [mother] shall have the right to claim all three (3) of the parties’ minor children on her State and Federal income taxes each and every year for so long as the minor children are eligible for her to do so.”

The judgment further ordered the mother to pay one-half of the monthly mortgage payments on the marital home prospectively.

On January 14, 2013, the father filed a postjudgment motion; that motion was denied on February 25, 2013. The father filed his notice of appeal on April 5, 2013.

Discussion

On appeal, the father first argues that the trial court exceeded its discretion in modifying his child-support obligation.

The evidence indicates that, when they divorced, the parties continued to reside together with their three children in the marital home. Based on those circumstances, the parties agreed that the father would continue paying the mortgage indebtedness on the marital home, that no child support would be paid by the father unless and until the marital home was sold, and that, upon the sale of the marital home, the father would pay the mother $1,250 per month as child support. Their agreement deviated from Rule 32, Ala. R. Jud. Admin., both by making child support contingent on the sale of the marital home and by establishing an amount of child support exceeding the amount dictated by the child-support guidelines. See Rule 32(A)© and (A)(1) (authorizing deviation from child-support guidelines based on fair agreement of the parties and their sharing of custody of children).

In Duke v. Duke, 872 So.2d 153 (Ala.Civ.App.2003), this court held that, when a trial court ratifies an agreement to deviate from the Rule 32 child-support guidelines, that agreement may be modified upon a showing of a substantial and continuing material change from the circumstances that had resulted in the initial deviation. For the purposes of modifying child support, ‘[factors indicating a change of circumstances include a material change in the needs, conditions, and circumstances of the child.’ ” Duke, 872 So.2d at 156 (quoting State ex rel. Shellhouse v. Bentley, 666 So.2d 517, 518 (Ala.Civ.App.1995)). The parent seeking the modification bears the burden of proof. Cunningham v. Cunningham, 641 So.2d 807, 809 (Ala.Civ.App.1994).

“Whether circumstances justifying modification of support exist is a matter within the trial court’s discretion. [Cunningham v. Cunningham, 641 So.2d 807 (Ala.Civ.App.1994).] We will not disturb the trial court’s decision on appeal unless there is a showing that the trial court abused that discretion or that the judgment is plainly and palpably wrong. Id.; Douglass v. Douglass, 669 So.2d 928, 930 (Ala.Civ.App.1995).”

Romano v. Romano, 703 So.2d 374, 375 (Ala.Civ.App.1997).

The trial court specifically found that a material change in circumstances had occurred since the entry of the divorce judgment because the parties and the children had moved out of the marital home. We agree. So long as the children remained living in the marital home, the payment of the mortgage indebtedness satisfied their shelter needs. After they moved out in 2010 to live primarily with the mother, the mortgage payments on the marital home no longer inured to the benefit of the children. The father implicitly recognized that fact when, after the parties rented the marital home to another couple, the father agreed to give the entire rental proceeds of $1,000 per month to the mother as child support. Once the rental payments ceased in accordance with the terms of the rental contract, the father was no longer providing any regular funds toward the shelter and other needs of the children, and the mother had to move for a modification of the divorce judgment in order to obtain child support to meet those needs.

Having correctly determined that the circumstances that led to the parties’ original agreement had materially changed, the trial court ordered the father to pay child support according to the Rule 32 guidelines, retroactive to the date the mother filed her modification petition, and credited the father for the $1,000 per month in rental receipts he had previously paid to the mother. The father does not challenge those rulings, but he does argue that the trial court acted inequitably in failing to order the mother to pay one-half of the mortgage indebtedness on the marital home retroactively to the date she filed her modification petition. We note, however, that the father did not raise this argument to the trial'court, and, thus, we cannot consider it. See Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992) (“This Court cannot consider arguments raised for the first time on appeal; rather, our review is restricted to the evidence and arguments considered by the trial court.”). Thus, we affirm the judgment to the extent that it modifies the father’s child-support obligation.

The father next argues that the trial court erred in ordering that E.M. and L.M. would not be required to visit with him.

“We note that the trial court has broad discretion when determining visitation rights and that its judgment must be affirmed unless it is unsupported by the evidence. Watson v. Watson, 555 So.2d 1115 (Ala.Civ.App.1989). The trial court is to consider the best interest and welfare of the child in determining visitation rights for a noncustodial parent. Id
“Furthermore, though it is an exceptional ease, there are circumstances where it is reasonable and in the best interests of the child not to be required to visit a non-custodial parent because of the child’s unwillingness or fear; however, it is an extreme decision that restricts an otherwise relatively qualified parent from visiting his child. Id”

Clark v. Blackwell, 624 So.2d 610, 611 (Ala.Civ.App.1993).

“ ‘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).”

H.H.J. v. K.T.J., 114 So.3d 36, 44 (Ala.Civ. App.2012).

The mother testified that E.M. and L.M., who at the time of trial were 18-year-old and 14-year-old girls, respectively, did not mind visiting the father but preferred not to stay overnight with him. She testified that the girls were involved in activities and had active social lives and that the father would not drive the 50 miles required to get them to their activities. She also testified that the father’s 'house has only two bedrooms, so the girls are required to share a bedroom with C.M., their younger brother, as well as their stepbrother. The father, however, testified that the children’s stepbrother had actually slept in the living room when he and the girls had been at the father’s house at the same time, and, according to the father, the stepbrother was no longer spending the night at the father’s house. The father testified that the children visit him regularly but that he does not force them to visit him when there is an activity scheduled in which they want to participate.

With regard to E.M., there is no evidence indicating that she has refused to visit the father altogether, as was the case in Shires v. Shires, 494 So.2d,102, 103-04 (Ala.Civ.App.1986) (affirming judgment refusing visitation rights to father of 18-year-old son). The evidence indicates only that E.M. does not want to stay overnight with the father and does not want to miss her activities. We conclude that the trial court could have ameliorated that concern by placing specific restrictions on the father’s visitation with E.M. instead of leaving visitation completely to her discretion. See, e.g., Lee v. Lee, 49 So.3d 211, 214 (Ala.Civ.App.2010) (“[A] trial court may not ‘select! ] an overly broad restriction that does more than address a particular concern and thereby unduly infringe! ] upon the parent-child relationship.’ ” (quoting Jackson v. Jackson, 999 So.2d 488, 494-95 (Ala.Civ.App.2007))).

With regard to L.M., in H.H.J. this court held that it was not in the best interest of a 15-year-old child to be able to determine when that child would visit with the noncustodial parent absent extreme circumstances. 114 So.3d at 44. Similarly, in the present case, we conclude that it is not in the best interest of L.M. to allow her to determine whether she visits with the father, especially considering that measures less invasive to the parent-child relationship are available and should be adopted.

Based on the foregoing, we conclude that the trial court exceeded its discretion in allowing E.M. and L.M. to determine whether they would visit the father. We therefore reverse the trial court’s judgment on that point and remand this cause for the trial court to enter an order awarding the father specific visitation with E.M. and L.M. We note that the trial court is free to place restrictions on one or both of the daughters’ visitation so long as they are ñarrowly tailored to address any concerns regarding their best interests.

The mother’s request for the award of attorney fees on appeal is denied.

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

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

      . The father tangentially asserts that the trial court erred in modifying the divorce judgment to allow the mother to claim all three children as dependents for income-tax purposes, but he does not develop any legal argument on that point, so we consider it to be waived. See White Sands Grp., L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1058 (Ala.2008) ("Rule 28(a)(10)[, Ala. R. App. P.,] requires that arguments in briefs contain discussions of facts and relevant legal authorities that support the party's position. If they do not, the arguments are waived.”).

      . The father had moved out of the marital home in 2009, so the children did not stay in the marital home during his custodial periods.

      . The record indicates that the father did make sporadic payments toward the children’s medical and extracurricular bills.

      . Moreover, it appears that the trial court may have impermissibly modified the parties’ property-settlement agreement, which required the father to pay the entire mortgage indebtedness, see McCreless v. Valentin, 121 So.3d 999, 1004-05 (Ala.Civ.App.2012) (holding that court cannot modify property settlement, except to correct clerical errors, more than 30 days after entry of final judgment), and that the modification actually benefited the father. See Rule 45, Ala. R.App. P. (providing that judgment may be reversed by appellate court only if substantial rights of appellant have been impaired).