source: Caselaw Access Project

author: MOORE, Judge. THOMPSON, Presiding Judge,

license: Public Domain

text:
    Janice Anita JONES v. Gary Tyrone MCCOY.
    2120145.
    Court of Civil Appeals of Alabama.
    Sept. 13, 2013.
    Certiorari Quashed Feb. 21, 2014
    Alabama Supreme Court 1121492.

      Karen Laneaux of The Law Office of Sandra Lewis, P.C., Montgomery, for appellant.
    Judy H. Barganier and Patrick J. Murphy of Law Offices of Judy H. Barganier, P.C., Montgomery, for appellee.
   MOORE, Judge.

Janice Anita Jones (“the mother”) appeals from a judgment entered by the Montgomery Circuit Court (“the trial court”) modifying custody of Brandon McCoy (“the child”) in favor of Gary Tyrone McCoy (“the father”). We affirm the judgment.

Background

In November 1997, the mother and the father were divorced by a judgment of the 89th District Court of Wichita County, Texas (“the Texas divorce judgment”). Pursuant to the Texas divorce judgment, the mother was awarded physical custody of the child, who was born in November 1996, and the father was ordered to pay child support. In 1998, the Texas divorce judgment was domesticated in the trial court pursuant to a modification action. In May 1999, the trial court entered a judgment modifying the father’s visitation schedule with the child, limiting contact between the father and the mother’s new husband (“the stepfather”), and ordering the following:

“7. That the [mother] shall refrain from calling [the stepfather] by any non-stepparental name, such as ‘Daddy,’ and shall discourage the child from doing so. The [mother] shall refer to the [father] in the child’s presence and in speaking to the child as the child’s Father, using whatever the name the child is accustomed to calling the father. The [mother] shall make affirmative efforts to teach the child the appropriate relationship between a child and his biological father and the appropriate relationship between a child and his stepfather.”

On July 12, 2011, the father, who now lives in the State of Florida, filed a petition seeking to modify custody of the child. On August 2, 2011, a guardian ad litem was appointed to represent the child’s best interests, and, within less than three weeks, the guardian ad litem moved for expedited pendente lite relief; he recommended that the trial court award the father pendente lite custody of the child. On September 13, 2011, the trial court denied the guardian ad litem’s motion.

On June 11, 2012, the guardian ad litem notified the mother that he intended to call Dr. Bridgett Smith as a witness at the final hearing; the guardian ad litem also notified the mother that Dr. Smith had met with the child on two occasions and that Dr. Smith wished to meet with the mother before the final hearing, which was scheduled to begin a week later. On June 15, 2012, the mother filed a motion in limine, seeking to prohibit the guardian ad litem or the father from offering into evidence any testimony or evidence from or relating to Dr. Smith, on the grounds that the mother, the child’s physical custodial parent, had not authorized Dr. Smith to evaluate the child and that the mother had had no knowledge of Dr. Smith until one week before the trial. The trial court allowed Dr. Smith to testify, but limited her testimony.

On August 7, 2012, the trial court entered a final judgment, finding that the father had met his burden under Ex parte McLendon, 455 So.2d 863 (Ala.1984); awarding custody of the child to the father; setting a visitation schedule for the mother; ordering the mother to pay child support in the amount of $100 per month, to cover all costs associated with her visitation with the child in the State of Florida, and to pay 50% of all reasonable costs for the child to participate in sports and extracurricular activities; and ordering the parties to each pay 50% of. the guardian ad litem’s fees, including any fees owed to Dr. Smith.

On August 31, 2012, the mother filed a motion to alter, amend, or vacate the trial court’s final judgment, pursuant to Rule 59, Ala. R. Civ. P., and a motion for relief from the judgment, pursuant to Rule 60, Ala. R. Civ. P., asserting that the father’s child support had erroneously been rescinded as of June 2011 rather than as of June 2012; she also moved to stay the trial court’s judgment pending resolution of her postjudgment motions.

On September 11, 2012, the trial court granted the mother’s motion to stay that portion of the final judgment ordering the mother to pay one-half of the guardian ad litem’s fees pending resolution of the mother’s postjudgment motions. On September 14, 2012, the trial court amended, pursuant to Rule 60, Ala. R. Civ. P., its final judgment to reflect that the father’s child-support obligation was rescinded as of June 22, 2012. On October 26, 2012, after a hearing, the trial court denied the mother’s motion to alter, amend, or vacate the final judgment. On November 7, 2012, the mother timely filed her notice of appeal; she posted a supersedeas bond, presumably to stay that portion of the trial court’s judgment ordering her to pay one-half of the guardian ad litem’s fees.

Analysis

We first address the mother’s argument that the guardian ad litem violated her constitutionally protected parental rights by submitting the child for a psychological assessment without the mother’s knowledge and consent. The mother, relying on R.S.C. v. J.B.C., 812 So.2d 361, 366 (Ala.Civ.App.2001), asserts that, because she was the physical custodian of the child, she had a fundamental right to make decisions concerning the “care, custody and control of her child” and that she should have been consulted before the child was taken to Dr. Smith for a psychological assessment or evaluation.

we agree with the mother that, as the physical custodian of the child, she was entitled to make decisions regard-regardthe child, the father also was entitled to make decisions on behalf of the child. Pursuant to the Texas divorce judgment, the mother and the father held joint legal custody of the child. “Joint legal custody” is defined in Ala.Code 1975, § 30-3-151(2):

“Both parents have equal rights and responsibilities for major decisions concerning the child, including, but not limited to, the education of the child, health care, and religious training. The court may designate one parent to have sole power to make certain decisions while both parents retain equal rights and responsibilities for other decisions.”

Because both parents held legal custody of the child, it was within either parent’s authority to authorize medical care for the child; we conclude that a psychological evaluation falls within that category.

The guardian ad litem represented to the trial court that the father had authorized Dr. Smith’s assessment of the child and that the father had driven the child to meet with Dr. Smith during those times when the child was in the father’s care. Because Dr. Smith was authorized by the father to assess and evaluate the child, we conclude that Dr. Smith’s assessment and evaluation of the child did not amount to a violation of the mother’s constitutional rights to parent the child. See Morgan v. Morgan, 964 So.2d 24 (Ala.Civ. App.2007) (holding that, when parents share equal custody rights, a court adopting the decision of one parent affecting the welfare of the child does not violate constitutional rights of other parent).

We next address the mother’s argument that the trial court denied her due process of law by requiring her to present her witnesses before the father had rested his case. In her brief filed with this court, however, the mother has failed to properly support her argument. The only citation to authority provided by the mother is a single citation to the Sixth Amendment of the United States Constitution. That amendment relates to criminal prosecutions and has no relevancy to a custody-modification action. It is well settled that “[t]his court will address only those issues properly presented and for which supporting authority has been cited.” Asam v. Devereaux, 686 So.2d 1222, 1224 (Ala.Civ. App.1996). “Rule 28(a)(10)[, Ala. R.App. P.,] requires that arguments in briefs contain discussions of facts and relevant legal authorities that support that party’s position. If they do not, the arguments are waived.” White Sands Group, L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1058 (Ala. 2008). Because the mother has not provided this court with citations to relevant authority, we need not address this argument further.

We next address the mother’s assertion that the trial court erred in denying the mother’s motion to recuse the guardian ad litem. The mother asserts that the guardian ad litem failed to properly understand that his role in the case was to advocate for the child’s best interests and not to advocate for the child’s personal wish to live with the father. The mother asserts that she was unduly prejudiced because, she says, as a result of his not understanding his role in the case, the guax*dian ad litem formed his opinion before all the evidence had been presented.

We agree with the mother that the role of the guardian ad litem is to zealously advocate for the best interests of the child and not necessarily to repi-esent the position of the child in relation to the litigation. As recognized in Steven N. Peskind, Evi-dentiary Opportunities: Applicability of the Hearsay Rules in Child Custody Proceedings, 25 J. Am. Acad. Matrimonial Law. 375, 396 (2013): “[Jjudges often appoint guardians ad litem, who serve as court investigators and take on a quasi-expert role in rendering opinions concerning the best interest of the children.”

“Unlike the child’s attorney whose role is generally to repi-esent the stated wishes of the child, the [guardian ad litem] is generally expected to advocate for the best interests of the child, whether or not the child is in agreement. Moreover, the [guardian ad litem] ‘owes his or her primary duty to the court and not to the child-client alone.’ ”

M. Boumil, C. Freitas & D. Freitas, Legal and Ethical Issues Confronting Guardian Ad Litem Practice, 13 J.L. & Fam. Stud. 43, 45-46 (2011) (footnotes omitted).

In this case, the guardian ad litem expressed his belief in a document filed with the trial court that it was his “sworn duty to zealously advocate for [the child’s] position” that physical custody should be transferred to the father. From that statement, and others contained in the i'ec-ord, it appears that the guardian ad litem understood that he was acting as an attorney for the child, rather than as a guardian ad litem. However, the fact that the guardian ad litem may have misunderstood his appointed role does not, in and of itself, demonstrate that the mother’s rights were unduly prejudiced.

The mother cites only M.B. v. R.P., 3 So.3d 237 (Ala.Civ.App.2008), in support of her argument that her rights were unduly prejudiced. In M.B., this court held that a party had been prejudiced because the juvenile court considered a recommendation of a guardian ad litem who did not attend the trial and, thus, did not consider the evidence presented at the trial when making the recommendation and, further, had not been subject to cross-examination. See also Ex parte R.D.N., 918 So.2d 100 (Ala.2005) (holding that party’s right to due process is violated when court considers ex parte recommendation of guardian ad litem). In this case, the mother does not assert that she was denied a full and fair opportunity to contest the recommendations of the guardian ad litem or his purported misunderstanding of his role in the case. Therefore, M.B. does not support her argument, and we find no basis for concluding that the mother was denied due process or that the guardian ad litem should have been recused.

We next address the mother’s assertion that she was unduly prejudiced by the child’s presence in the courtroom during her testimony. The mother points out that the guardian ad litem specifically requested that the child enter the courtroom for only the mother’s testimony. The trial court allowed the child to enter and remain in the courtroom, over the mother’s objection, based upon the position taken by the father’s lawyer and the guardian ad litem that the child was a party to the custody-modification action. The mother argues that the child was not a party to the custody-modification action.

We agree with the mother that the child was not a party to the custody-modification action. See Cochran v. Cochran, 49 Ala.App. 178, 189, 269 So.2d 884, 895 (Civ.App.1970), overruled on other grounds, 289 Ala. 615, 269 So.2d 897 (1972) (children of parties to a divorce action are not parties themselves and the appointment of a guardian ad litem is not required). However, the mother does not develop any cogent argument as to how the child’s nonparty status precluded the trial court from allowing the child to be present in the courtroom during her testimony. Assuming the mother is- complaining that the trial court violated Rule 615, Ala. R. Evid. (“At the request of a party the court may order witnesses excluded so that they cannot hear the testimony of other witnesses and it may make the order of its own motion.”), the mother fails to acknowledge “[t]he general rule ... that excluding witnesses upon invocation of ‘the rule’ (i.e., the rule requiring sequestration of witnesses) is a matter left largely to the discretion of the trial judge and that his decision will not be disturbed on appeal absent a showing of an abuse of discretion.” Christiansen v. Hall, 567 So.2d 1388, 1341 (Ala.1990). The mother has failed to identify any undue prejudice resulting from the child’s presence in the courtroom during her testimony that would lead this court to conclude that the trial court exceeded its discretion. As a result, we find no basis for reversal as a result of the trial court’s ruling on that issue. See Rule 45, Ala. R.App. P.

We next address the mother’s argument that the trial court’s judgment must be reversed because the father failed to meet his burden under Ex parte McLendon, 455 So.2d 863 (Ala.1984).

“In situations in which the parents have joint legal custody, but a previous judicial determination has granted primary physical custody to one parent, the other parent, in order to obtain a change in custody, must meet the burden set out in Ex parte McLendon [, 455 So.2d 863 (Ala.1984) ]. See Scholl v. Parsons, 655 So.2d 1060, 1062 (Ala.Civ.App.1995). The burden set out in McLendon requires the parent seeking a custody change to demonstrate that a material change in circumstances has occurred since the previous judgment, that the child’s best interests will be materially promoted by a change of custody, and that the benefits of the change will more than offset the inherently disruptive effect resulting from the change in custody. Ex parte McLendon, 455 So.2d at 866.”

Dean v. Dean, 998 So.2d 1060, 1064-65 (Ala.Civ.App.2008). The trial court made no specific findings in its judgment; thus, we must assume that the trial court implicitly made those findings necessary to support its judgment. See, e.g., McCormick v. Ethridge, 15 So.3d 524, 529 (Ala.Civ.App. 2008).

“A material change of circumstances occurs when important facts unknown at the time of the initial custody judgment arise that impact the welfare of the child.” K.E.W. v. T.W.E., 990 So.2d 375, 380 (Ala.Civ.App.2007). “The [Ex parte ] McLendon [, 455 So.2d 863 (Ala.1984),] standard is a ‘rule of repose,’ meant to minimize disruptive changes of custody because this Court presumes, that stability is inherently more beneficial to a child than disruption.” Ex parte Cleghom, 993 So.2d 462, 468 (Ala.2008).

“On appellate review of custody matters, [the appellate] court is limited when the evidence was presented ore tenus, and, in such circumstances, a trial court’s determination will not be disturbed ‘absent an abuse of discretion or where it is shown to be plainly and palpably wrong.’ Alexander v. Alexander, 625 So.2d 433, 434 (Ala.Civ.App.1993) (citing Benton v. Benton, [520 So.2d 534 (Ala.Civ.App.1988) ]). As the Alabama Supreme Court highlighted in [Ex parte ] Patronas, [693 So.2d 473 (Ala.1997) ], ‘ “[T]he trial court is in the better position to consider all of the evidence, as well as the many inferences that may be drawn from that evidence, and to decide the issue of custody.” ’ Patronas, 693 So.2d at 474 (quoting Ex parte Bryowsky, 676 So.2d 1322, 1326 (Ala.1996)). Thus, appellate review of a judgment modifying custody when the evidence was presented ore tenus is limited to determining whether there was sufficient evidence to support the trial court’s judgment. See Patronas, 693 So.2d at 475.”

Cheek v. Dyess, 1 So.3d 1025, 1029 (Ala.Civ.App.2007).

We conclude that the trial court had before it sufficient evidence from which it could reasonably have determined that a material change of circumstances had occurred since the entry in 1997 of the Texas divorce judgment awarding physical custody of the child to the mother. Although we agree with the mother that the mere passage of time, see Cochran v. Cochran, 5 So.3d 1220 (Ala.2008), and the persistence of visitation disputes, id,., alone do not constitute a material change of circumstances that would jüstify a modification of physical custody, we conclude that the trial ■ court had before it evidence of other factors that could not have been previously considered in 1997. Specifically, the trial court heard evidence indicating that the mother was not meeting the social and athletic needs of the child and that the mother’s behavioral rules were stifling the ability of the child to mature into an independent and self-reliant young adult. That evidence, as accepted by the trial court, demonstrated that, since the last custody judgment, a material change of circumstances had occurred that had negatively impacted the welfare of the child.

The trial court also heard evidence that would support a reasonable conclusion that the child’s social and athletic interests would be materially promoted by moving in with the father. The child testified that, while living with the mother, he was not allowed to leave the driveway of his mother’s house or socialize with children in their neighborhood, although they lived in a prestigious, gated community; that, until the custody-modification action was filed, he had been required to ride in the backseat of the mother’s car, presumably for safety; that, at the age of 15, he was rarely allowed to have friends over to visit at the mother’s house and the mother refused to drop the child off at the movie theater with his friends to see a movie; and that he had only recently been allowed to watch “PG” rated movies. The mother admitted that, at the age of 15, the child had never had friends sleep over at the mother’s house and had never been invited to a friend’s house for a sleepover. The evidence further showed that the child had expressed an interest in playing football, but the mother had maintained his enrollment in a magnet school that did not maintain a football program.

On the other hand, the father had arranged for the child to play football at a local high school, and, in fact, the child had begun practicing with that football team during his 2011 summer visitation with the father. The father also arranged for the child to have a cellular telephone, which the mother would not allow. The child testified that the father had also allowed him to have friends over and had allowed the child to socialize with friends at other places; that the father had fostered the child’s independence; that the father had taught the child to cook and to perform chores that the mother regularly did for the child and to be self-reliant; and that the father had taught him skills that he would need to live on his own when he left home for college.

Dr. Smith also testified that the child was very bright and had articulated reasons why he wanted to leave the mother’s home. According to Dr. Smith, although the child had identified several negative factors associated with living in the mother’s home, he had been more focused on the positives he believed would result from a move to the father’s home. Dr. Smith testified that the child was mature in some ways and immature in others. She testified that she had found no clinical signs that the child had been coached and that she had discussed with the child that life with the father, a retired Air Force general, might well be more structured and disciplined than it was with the mother, an unemployed stay-at-home mom, and the stepfather, a practicing physician. According to Dr. Smith, the child was prepared for that possibility.

Whether the benefits from changing physical custody from the mother to the father will more than offset the inherently disruptive effect resulting from the change in custody was a question of fact for the trial court. Ex parte Blackstock, 47 So.3d 801 (Ala.2009). The trial court could have reasonably found that the evidence regarding the more social and independent environment found in the father’s home and the child’s response to that environment established that the child’s best interests would be materially promoted by a change of custody and that the benefits of that change would more than offset the inherently disruptive effect resulting from a change in custody.

We acknowledge that the judgment results in the child’s being removed from the home of the mother, in which he had long resided with his half brother. However, in A.B. v. J.B., 40 So.3d 723, 729 (Ala.Civ.App.2009), this court held that a trial court may separate half siblings “if the trial court concludes, based on sufficient evidence in the record, that the separation will serve the best interests of the children at issue.” The child testified that he believed he and the half brother could sufficiently maintain their relationship during his visits to the mother’s home. As the fact-finder, the trial court was entitled to accept the child’s testimony on that issue. Cheek v. Dyess, supra.

The mother also challenges the visitation schedule established for her in the trial court’s judgment and asserts that the trial court erred in awarding her less time with the child than the father had previously received. The mother, however, has failed to cite any authority in support of her argument. As a result, we will not address that issue. See Rule 28(a)(10); Asam, supra; and White Sands Group, supra.

For the foregoing reasons, the judgment of the trial court is affirmed. Both parties’ requests for attorney fees on appeal are denied.

AFFIRMED.

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

THOMPSON, P.J., dissents, with writing.

THOMPSON, Presiding Judge,

dissenting.

I must respectfully dissent. I do not believe that Gary Tyrone McCoy (“the father”) presented sufficient evidence to prove that there has been a material change in circumstances to warrant the need for a change in the existing custody arrangement, or that a change in custody would materially promote the child’s welfare. See Baird v. Hubbart, 98 So.3d 1158, 1163 (Ala.Civ.App.2012) (citing Ex parte McLendon, 455 So.2d 863, 865-66 (Ala.1984)).

Janice Anita Jones (“the mother”) has had primary physical custody of the child since the parties divorced in 1997, when the child was about a year old. The child was 15 years old and in high school at the time of the trial. In his petition, the father cited the child’s desire to reside with the father — who now lives in Destín, Florida — and his belief that the mother was attempting to alienate the child from him as grounds warranting the custody modification. However, the father indicated that he had been concerned that the mother was attempting to alienate the child from him since 1999. Furthermore, when a child expresses a preference to live with the noncustodial parent in a modification proceeding, such a preference, without more, is insufficient to justify a change in custody. See Marusich v. Bright, 947 So.2d 1068, 1071 (Ala.Civ.App.2006) (citing Glover v. Singleton, 598 So.2d 995, 996 (Ala.Civ.App.1992)).

The mother has stressed academics throughout the child’s life. The child has consistently excelled in his studies, and he was accepted into the Loveless Academic Magnet Program High School (“LAMP”), which is highly ranked nationally. As the mother pointed out, the father did not voice an objection when the mother enrolled the child in LAMP. Although LAMP does not have a football team, the child takes part in extracurricular activities at the school. The evidence also indicates that the mother tends to be protective of the child.

The father agrees that academics are important, but he also focuses on developing what the child called “life skills” through participation in sports and social activities. The father intends to enroll the child in a more traditional public high school with a student body of approximately 2,000. The father has encouraged the child to try out for that school’s football team. Unlike the mother, the father encourages the child to be more independent.

In Bishop v. Knight, 949 So.2d 160 (Ala.Civ.App.2006), this court reversed a judgment modifying custody of the parties’ teenage son. The father in that case had sought the modification because the son wanted the modification and because he did not like the style of discipline the mother used when the son misbehaved. For example, when the son was suspended a second time from riding the school bus, the mother made him walk the three miles to and from school. The suspension lasted three days. The father did not agree with the mother’s punishment. Id. at 164. The father also disagreed with the mother’s decision to punish the son by excluding him from a family event, cutting his hair, and paddling him. Id. The son testified that he was paddled for things like not cleaning his room after repeatedly being told to do so, for saying “yeah” instead of “yes, sir” and “yes, ma’am,” for being suspended from the school bus, and for receiving bad grades. Id.

The trial court in Bishop modified custody after finding that the mother was physically abusing the son and that he was suffering emotional harm because of the mother’s disciplinary style. This court determined that the evidence did not support the trial court’s findings and that the evidence did not merit a change in custody. Id. at 168.

In this case, there is no question that the parenting styles of the father and the mother differ greatly. However, there is no evidence in the record that would support a conclusion that the mother’s parenting style is causing the child physical or emotional harm. Although I may not agree with all of the methods used by the mother in raising her son, I do not believe it is this court’s place, or that of the trial court, to implicitly find that one style of parenting is better than another and to modify custody based on a preference of parenting style.

Our supreme court has previously stated that “[t]he burden imposed by the McLen-don standard is typically a heavy one” and that it is “meant to minimize disruptive changes of custody because this Court presumes that stability is inherently more beneficial to a child than disruption.” Ex parte Cleghom, 993 So.2d 462, 468 (Ala.2008) (citing Ex parte McLendon, 455 So.2d at 865). I do not believe that the father met that heavy burden in this case. Without the requisite showings of a material change in circumstance and that a custody modification would materially promote the welfare of the child, custody should remain with the mother, who has been the child’s custodial parent for the last 14 years. Accordingly, I would reverse the judgment of the trial court.

      . On September 10, 2012, the guardian ad litem moved the trial court to amend the final judgment to reduce the mother's visitation schedule from two weekends a month to one weekend a month; the guardian ad litem reported that the motion had been filed at the child’s request. That motion, however, was untimely filed. See Rule 59, Ala. R. Civ. P. (requiring that postjudgment motions seeking to alter, amend, or vacate a judgment be filed within 30 days of entry of a trial court’s judgment).

        . See also Ala.Code 1975, § 12-15-304(a) (mandating that a guardian ad litem be appointed for a child who is the subject of dependency and termination-of-parental-rights proceedings and that the guardian ad litem’s role "shall be to protect the best interests of the child”); and Ala.Code 1975, § 26-14-11 (“In every case involving an abused or neglected child which results in a judicial proceeding, an attorney shall be appointed to represent the child in such proceedings. Such attorney will represent the rights, interests, welfare, and well-being of the child, and serve as a guardian ad litem for the child.”).

      . At the time of the trial, the child was 15 years old, stood 5'9" or 5'10”, and weighed between 180 and 200 pounds.

      . The mother testified that the child had participated in numerous other activities, i.e., that he played tennis and swam at the YMCA, had participated in competitive basketball for several years in the YMCA leagues, had played chess and studied French, had participated in an "Ultimate Frisbee” Club at school, was a member of the Banjo Band at school, and previously had studied Taekwon-do.


author: DONALDSON, Judge. PITTMAN, Judge,

text:
    ALABAMA BOARD OF EXAMINERS IN PSYCHOLOGY v. C. Fletcher HAMILTON, PhD.
    2120032.
    Court of Civil Appeals of Alabama.
    Sept. 27, 2013.
    Certiorari Quashed March 7, 2014 Alabama Supreme Court 1130014.

      Luther Strange, atty. gen., and Matthew Y. Beam of Beam Law Firm, LLC, Birmingham, for appellant.
    Glen David King, Auburn, for appellee.
    Alice M. Henley, deputy atty. gen. and gen. counsel, and Patrick Samuelson, asst, atty. gen. and asst. gen. counsel, Alabama Board of Nursing; Ellen Leonard, asst, atty. gen., Alabama Board of Social Work Examiners; and Susan Franklin Wilhelm, deputy atty. gen., Board of Dental Examiners of Alabama; for amici curiae Alabama Board of Nursing, Alabama Board of Social Work Examiners, and Board of Dental Examiners of Alabama, in support of the appellant.
   DONALDSON, Judge.

The Alabama Board of Examiners in Psychology (“the Board”) appeals a judgment of the Montgomery Circuit Court (“the circuit court”) dated September 6, 2012, in which the circuit court reversed a decision of the Board to sanction Dr. C. Fletcher Hamilton, a licensed psychologist in Jefferson County, for entering into a sexual relationship with a patient in 1982, in violation of §§ 34-26-3 and 34-26^6, Ala.Code 1975. The circuit court “reversed and set aside” the Board’s decision, citing the rule of repose and the doctrine of laches as grounds, and remanded the action to the Board. For the reasons stated herein, we reverse the circuit court’s judgment, and we render judgment in favor of the Board.

Factual Background and Procedural History

In October 2010, L.M. filed a complaint with the Board alleging that between 1982 and 1994 Hamilton had engaged in an inappropriate romantic relationship with her while simultaneously providing her therapeutic psychological treatment. On January 26, 2011, the Board filed a formal administrative complaint against Hamilton alleging that he had violated §§ 34-26-3 and 34-26-46, Ala.Code 1975, by engaging in sexual contact with L.M., a patient. As a part of his defense in the administrative proceeding conducted before an administrative law judge (“ALJ”) pursuant to the Alabama Administrative Procedure Act (“AAPA”), § 41-22-1 et seq., Ala.Code 1975, Hamilton asserted the doctrine of laches in his answer to the Board’s complaint and the rule of repose in a motion for a summary judgment. Both defenses were rejected by the ALJ prior to the commencement of the administrative hearing.

At the administrative hearing held on May 25 and 26, 2011, the ALJ received testimony from various witnesses, including L.M. and Hamilton. The record reveals that L.M. sought psychological treatment from Hamilton in April 1982 for myriad issues and that physical contact between Hamilton and L.M. commenced during the first few sessions. L.M. and Hamilton exchanged cards, letters, and pictures at various times between 1982 and 1994. L.M. also kept a calendar in 1982 of all of her activities, in which she detailed her professional and personal interactions with Hamilton. The correspondence and the calendar were admitted into evidence at the hearing.

Testimony indicates that most of Hamilton’s professional records concerning his treatment of L.M. between April and June 1982 had been destroyed in the regular course of business in February 2010. However, the record reveals that Hamilton’s office retained the “face sheets,” or patient-intake forms, completed during that period. On the bottom of the intake form L.M. completed in April 1982, which was admitted into evidence at the administrative hearing, a handwritten notation had been made to indicate that Hamilton last saw L.M. as a patient on or around June 18,1982.

On September 2, 2011, the ALJ rendered detailed written findings and recommendations. The ALJ found that the relationship between L.M. and Hamilton had become romantic after June 18, 1982, the date Hamilton last billed L.M. as a patient. The ALJ also found that Hamilton, despite the discontinuation of billing for his services, continued to provide L.M. with therapeutic advice through September 1982 on matters for which she had initially sought psychological treatment. The ALJ ultimately concluded that “the greater weight of the evidence established] that some sexual physical contact occurred during the course of the therapeutic relationship in 1982” and that the coexisting therapeutic and romantic relationships ended sometime in September 1982. The ALJ determined that “the prer ponderance of the evidence demonstrated] that Hamilton crossed the ethical professional boundaries regarding sexual intimacies with a client during the summer and early fall of 1982.” The ALJ found, however, that the evidence was insufficient to establish that either a romantic or a therapeutic relationship existed beyond 1982, stating that L.M.’s “account of those events is not corroborated by any other credible source. In fact, her accounts were contradicted by the evidence, particularly her own letters to Hamilton. Therefore, ... the evidence failed to demonstrate that Hamilton violated the Professional Ethical Standards of Care from October 1982 through June 1994.”

The ALJ ultimately determined that Hamilton had engaged in an inappropriate relationship with L.M. in violation of §§ 34-26-3 and 34-26-46, Ala.Code 1975, during the period beginning in June 1982 and ending in September 1982, and recommended that the Board impose sanctions against Hamilton, including placing him on probationary status for a six-month period and temporarily suspending his license, conditioned on his reimbursement to the Board of one-half the Board’s expenses associated with prosecuting the administrative action. On September 22, 2011, the Board issued -a final order accepting the ALJ’s findings and implementing, in part, the ALJ’s recommendations of sanctions. The Board imposed additional sanctions beyond those recommended by the ALJ, including placing Hamilton on probationary status for a one-year period; temporarily suspending his license, conditioned not only on his reimbursement to the Board of one-half the expenses associated with prosecuting the administrative action, but also on his seeking treatment with a therapist approved by the Board; placing restrictions on his accepting any new female clients until he had completed therapy and received the Board’s approval; and requiring him to notify all of his existing clients of the administrative action.

On September 26, 2011, Hamilton filed a notice of appeal with the Board pursuant to § 41-22-20, Ala.Code 1975, in order to appeal the Board’s decision to the circuit court. Hamilton filed a petition for judicial review in the circuit court on September 27, 2011. He also filed in the circuit court a petition for a temporary restraining order and for a preliminary injunction or to stay imposition of the Board’s sane-tions. On October 19, 2011, the circuit court granted the motion to stay and enjoined enforcement of the Board’s order. On November 8, 2011, Hamilton filed a motion in the circuit court requesting that the order of the Board be reversed and vacated. Hamilton based his motion, in part, on the assertion that the Board’s action was barred by the rule of repose. The circuit court subsequently held a hearing on the appeal, but no additional testimony was taken. On September 6, 2012, the circuit court entered a judgment reversing the Board’s final order, holding in pertinent part:

“To impose sanctions based on alleged acts that occurred more than 28 years ago is barred by the rule of repose and/or the doctrine of [laches]....
“Based upon the foregoing, the decision of the Board is reversed and set aside. This case is REMANDED to the .Alabama Board of Examiners in Psychology.”

The circuit court cited the following cases in support of its judgment: Ex parte Liberty Nat’l Life Ins. Co., 825 So.2d 758 (Ala.2002); Ex parte Grubbs, 542 So.2d 927 (Ala.1989); Christ Hosp. & Med. Ctr. v. Human Rights Comm’n, 271 Ill.App.3d 138, 648 N.E.2d 201, 207 Ill.Dec. 745 (1995); Mank v. Board of Fire & Police Comm’rs, Granite City, 7 Ill.App.3d 478, 288 N.E.2d 49 (1972); and Appeal of Plan-tier, 126 N.H. 500, 494 A.2d 270 (1985).

The Board filed an appeal to this court on October 4, 2012. On appeal, the Board asserts (1) that Hamilton did not properly raise the defense of laches before the circuit court; (2) that, although the doctrine of laches applies to proceedings under the AAPA, it is not applicable in the present case; and (3) that the rule of repose is not applicable to administrative actions commenced by the State of Alabama. This court granted the motion of the Alabama Board of Nursing, the Alabama Board of Social Work Examiners, and the Board of Dental Examiners of Alabama to file briefs as amici curiae. Oral arguments of the parties and of the amici curiae were heard on August 15, 2013.

Standard of Review

“Our standard of review mirrors that of the circuit court:

“ ‘ “Judicial review of an agency’s administrative decision is limited to determining whether the decision is supported by substantial evidence, whether the agency’s actions were reasonable, and whether its actions were within its statutory and constitutional powers. Judicial review is also limited by the presumption of correctness which attaches to a decision by an administrative agency.” ’

“Ex parte Alabama Bd. of Nursing, 835 So.2d 1010,1012 (Ala.2001) (quoting Alabama Medicaid Agency v. Peoples, 549 So.2d 504, 506 (Ala.Civ.App.1989)).”

Alabama Bd '. of Nursing v. Williams, 941 So.2d 990, 995 (Ala.Civ.App.2005). Section 34-26-48, Ala.Code 1975, provides, in part:

“Any action of, or ruling or order made or entered by the [B]oard ... recommending suspension or revocation of a certificate or license shall be subject to review by the courts of this state in the same manner and subject to the same powers and conditions as now provided by law in regard to rulings, orders, and findings of other quasi-judicial bodies in Alabama, where not otherwise specifically provided.”

Judicial review of administrative-agency actions is limited by § 41-22-20(k), Ala. Code 1975, which states:

“(k) Except where judicial review is by trial de novo, the agency order shall be taken as prima facie just and reasonable and the court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact, except where otherwise authorized by statute. The court may affirm the agency action or remand the case to the agency for taking additional testimony and evidence or for further proceedings. The court may reverse or modify the decision or grant other appropriate relief from the agency action, equitable or legal, including declaratory relief, if the court finds that the agency action is due to be set aside or modified under standards set forth in appeal or review statutes applicable to that agency or if substantial rights of the petitioner have been prejudiced because the agency action is any one or more of the following:
“(1) In violation of constitutional or statutory provisions;
“(2) In excess of the statutory authority of the agency;
“(3) In violation of any pertinent agency rule;
“(4) Made upon unlawful procedure;
“(5) Affected by other error of law;
“(6) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
“(7) Unreasonable, arbitrary, or capricious, or characterized by an abuse of discretion or a clearly unwarranted exercise of discretion.”

Analysis

I. Failure to Raise the Issue of Laches on Appeal to the Circuit Court

The Board first contends that Hamilton failed to raise the doctrine of laches as a defense in his appeal to the circuit court; thus, the Board argues, the circuit court could not have properly relied on laches to overturn the Board’s order. In support of this argument, the Board cites Knoblett v. Alabama Board of Massage Therapy, 963 So.2d 640 (Ala.Civ.App. 2007). In Knoblett, this court noted that “ ‘ “[a]n appeals court will consider only those issues properly delineated as such, and no matter will be considered on appeal unless presented and argued in brief.” ’ ” 963 So.2d at 647 n. 3 (quoting Tucker v. Cullman-Jefferson Cntys. Gas Dist., 864 So.2d 317, 319 (Ala.2003), quoting in turn Braxton v. Stewart, 539 So.2d 284, 286 (Ala.Civ.App.1988)). The argument asserted in Knoblett involved the failure of a party to raise an issue in a brief before this court, not the failure to raise a defense in an appeal of an administrative determination in the circuit court.

Section 41-22-20(h)(4), Ala. Court 1975, requires a party petitioning for review of an administrative determination in the circuit court to assert in the petition “[t]he grounds on which relief is sought.” Without mentioning either the doctrine of lach-es or the rule of repose, Hamilton essentially asserted in his petition that the Board’s final order was due to be reversed under the standards set forth in § 41-22-20(k)(l) — (7).

It is evident from the record that Hamilton raised the doctrine of laches as a defense in the administrative proceeding before the ALJ. The Board was apprised of Hamilton’s reliance upon laches as a defense before the administrative hearing was conducted. At no time did Hamilton abandon that defense. In fact, the Board’s response to Hamilton’s motion for a summary judgment filed in the administrative proceeding briefed the issue of laches extensively. Based on the foregoing, we hold that the issue of the applicability of the defense of laches was properly before the circuit court and, consequently, is properly before this court.

II. Applicability of the Defense of Laches

This court has previously recognized that the doctrine of laches is applicable to administrative proceedings in instances where the legislature has not defined a period of limitation for commencing such proceedings. See Chafian v. Alabama Bd. of Chiropractic Exam’rs, 647 So.2d 759, 762 (Ala.Civ.App.1994) (“Where there is no statutory time limitation applicable to the administrative proceeding, the issue of whether the action should be barred by time depends on the question of laches.” (citing Appeal of Plantier, 126 N.H. 500, 494 A.2d 270 (1985), and 2 Am.Jur.2d Administrative Law § 321 (1962))). Our supreme court has defined laches as

“neglect to assert a right or a claim that, taken together with a lapse of time and other circumstances causing disadvantage or prejudice to the adverse party, operates as a bar. See Black’s Law Dictionary 787 (5th ed. 1979). Laches is an equitable doctrine designed to prevent unfairness to a defendant ... due to a plaintiffs ... delay in filing suit, in the absence of an appropriate statute of limitations. Equal Employment Opportunity Commission v. Dresser Industries, Inc., 668 F.2d 1199 (11th Cir.1982). It is based on the public policy discouraging stale demands and is not based upon mere lapse of time. It is principally a question of the inequity of permitting a claim to be enforced where some change in condition has taken place that would make the enforcement of the claim unjust. Davis v. Alabama Power Co., 383 F.Supp. 880 (N.D.Ala.1974), affirmed, 542 F.2d 650 (5th Cir.1976), affirmed, 431 U.S. 581, 97 S.Ct. 2002, 52 L.Ed.2d 595 (1977). It is designed to prevent unfairness caused by a party’s delay in asserting a claim or by his failure to do something that equity would have required him to do. Sims v. Lewis, 374 So.2d 298 (Ala.1979); United States v. Olin Corp., 606 F.Supp. 1301 (N.D.Ala.1985); Golightly v. Golightly, 474 So.2d 1150 (Ala.Civ.App.1985).”

Ex parte Grubbs, 542 So.2d 927, 928-29 (Ala.1989). “The party asserting laches bears the burden of proving that the delay was unreasonable and that prejudice resulted from the delay.” Chafian, 647 So.2d at 762. “Classic elements of undue prejudice, for purposes of determining the applicability of the doctrine of laches, include the unavailability of witnesses, changed personnel, and the loss of pertinent records.” Grubbs, 542 So.2d at 929 (citing Equal Employment Opportunity Commission v. Dresser Indus., Inc., 668 F.2d 1199 (11th Cir.1982)).

For the equitable doctrine of laches to bar an action, the evidence must show that a delay has caused such prejudice or disadvantage to a party that permitting the proceedings to continue would be fundamentally unfair. In the present case, Hamilton has asserted two specific examples of prejudice that he claims to have suffered in presenting a defense against L.M.’s allegations. First, he contends that his treatment records pertaining to L.M. had been destroyed in the regular course of business and could not be utilized in his defense to the Board’s action. Second, Hamilton contends that the ALJ found L.M. to be an unreliable witness concerning the events occurring between 1983 and 1994 and that, therefore, the ALJ should have found L.M.’s testimony to have been equally unreliable concerning the events occurring in 1982.

After a review of the record, and taking into consideration the arguments of the parties in their briefs and in oral arguments, we conclude that Hamilton failed to sufficiently establish that prejudice or disadvantage resulted from the lapse of time such that the defense of laches should have barred the proceedings. A showing that records have been destroyed, alone, is not sufficient. The party asserting laches must also prove to the trier of fact that the lack of the pertinent records renders the administration of justice difficult, if not impossible. Salter v. Hamiter, 887 So.2d 230, 241 (Ala.2004). The evidence here does not meet that standard. Although Hamilton established that most of his treatment records for L.M. were destroyed in February 2010, there is no specific showing of how those records could have disproved the fact that he had engaged in an inappropriate relationship with L.M. Hamilton asserted on appeal to the circuit court that the missing records could have provided details concerning the contacts between him and L.M. and that they could have helped him to establish the beginning and end dates of their professional relationship. Based upon our review of the record, the destroyed documents would not have assisted the trier of fact in determining those issues. Hamilton testified at the administrative hearing that he last billed L.M. for services around June 18, 1982. The undestroyed records, i.e., the “face sheets,” which were admitted into evidence, also support Hamilton’s contention that the formal, in-office counseling sessions ended on or around June 18,1982. That contention is not at odds with the ALJ’s determination. However, the ALJ found that, despite the fact that he stopped billing L.M. on June 18, 1982, Hamilton continued to provide L.M. with therapeutic advice throughout the summer and fall of 1982, including advice on matters for which she had sought psychological treatment. Based on the record before us, Hamilton’s treatment records could not have provided information to dispute that finding, because they would have provided details concerning only the April to June 1982 time frame. The findings of the ALJ established that the misconduct upon which sanctions were based occurred between June 18 and September 1982. Testimony indicates that there would not have been any treatment records during this period, because the formal treatment sessions ended on June 18. Thus, the destroyed treatment records would not have provided any basis to disprove the existence of either a romantic relationship or a therapeutic relationship between the summer and early fall of 1982, during which, the ALJ determined, Hamilton had engaged in a romantic relationship with L.M. while continuing to provide her therapeutic services.

Although most of Hamilton’s treatment records were not available, the record is replete with other documentation memorializing the interaction between Hamilton and L.M. in 1982. That documentation includes L.M.’s calendar, as well as written correspondence between Hamilton and L.M., some of which is in Hamilton’s own handwriting. Although some of that documentation may have been unfavorable to Hamilton in the sense that the ALJ might have relied upon it to determine that a romantic relationship existed, the existence of that documentation undercuts any argument that Hamilton has been prejudiced by a lack of records. The voluminous written evidence that does exist in the record leads us to conclude that it was not “ ‘too late to ascertain the merits of the controversy.’ ” Meeks v. Meeks, 251 Ala. 435, 437, 37 So.2d 914, 916 (1948) (quoting 30 C.J.S. Equity § 119, p. 543).

The other example of prejudice Hamilton raises on appeal is that L.M. was an unreliable witness. The ALJ questioned L.M.’s account of the events occurring subsequent to 1982, and it is apparent from the recommendations and findings that the ALJ weighed the evidence concerning these alleged interactions between Hamilton and L.M. and concluded that the weight of the evidence did not support L.M.’s allegations as to these matters. Likewise, the ALJ weighed the evidence concerning the allegations relating to events occurring in 1982, and she found L.M.’s account to be credible and supported by the evidence. Further, the record does not show how any of Hamilton’s destroyed records would have affected the ALJ’s assessment of L.M.’s credibility. As the trier of fact in this matter, the ALJ had “ ‘the advantage of observing the witnesses’ demeanor and ha[d] a superior opportunity to assess their credibility, [and, therefore, an appellate court] cannot alter the [ALJ’s decision] unless it is so unsupported by the evidence as to be clearly and palpably wrong.’ ” Ex parte Fann, 810 So.2d 631, 636 (Ala.2001) (quoting Ex parte D.W.W., 717 So.2d 793, 795 (Ala.1998)).

“ ‘[The appellate court is not] allowed to reweigh the evidence in this case. This [issue] ... turns on the [trier of fact’s] perception of the evidence. The [trier of fact] is in the better position to evaluate the credibility of the witnesses ... and the [trier of fact] is in the better position to consider all of the evidence, as well as the many inferences that may be drawn from that evidence....’”

Ex parte Patronas, 693 So.2d 473, 475 (Ala.1997) (quoting Ex parte Bryowsky, 676 So.2d 1322, 1326 (Ala.1996)). The ALJ’s findings are entitled to deference, and neither the circuit court nor this court is authorized to substitute its judgment as to the findings of the ALJ on this issue. See § 41-22-20(k), Ala.Code 1975 (“the court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact, except where otherwise authorized by statute”); see also Alabama Bd. of Nursing v. Williams, 941 So.2d at 999 (“In no event is a reviewing court ‘authorized to reweigh the evidence or to substitute its decisions as to the weight and credibility of the evidence for those of the agency.’ ” (quoting Ex parte Williamson, 907 So.2d 407, 416-17 (Ala. 2004))). The ALJ weighed L.M.’s credibility as a witness as to the allegations of misconduct between 1982 and 1994 and applied her judgment accordingly.

Although laches is an available defense and could form the basis of a reversal of an agency’s decision under § 41-22-20(k)(7), Ala.Code 1975, on the ground that the agency decision is “unreasonable,” the record here fails to show how any delay in L.M.’s reporting the allegations caused actual prejudice or actual disadvantage to Hamilton. Consequently, and consistent with the deference we must afford to the Board’s decision, we conclude that the doctrine of laches does not support providing Hamilton relief from the Board’s final order.

III. Rule of Repose

In its judgment, the circuit court also reversed the Board’s disciplinary order based, in part, on the rule of repose. The applicability of the rule of repose to administrative proceedings appears to be a question of first impression.

“‘The common-law rule of repose, which is an affirmative defense, Rector v. Better Houses, Inc., 820 So.2d 75, 78 (Ala.2001), “bars actions that have not been commenced within 20 years from the time they could have been commenced.” Tierce v. Ellis, 624 So.2d 553, 554 (Ala.1993). ’The rule of repose “is not affected by the circumstances of the situation, by personal disabilities, or by whether prejudice has resulted or evidence [has been] obscured.” Boshell v. Keith, 418 So.2d 89, 91 (Ala.1982). “Lack of notice is not sufficient to avert the application of the [rule of repose].” Ballenger v. Liberty Nat’l Life Ins. Co., 271 Ala. 318, 322, 123 So.2d 166, 169 (1960); accord Ex parte Liberty Nat’l Life Ins. Co., 825 So.2d 758, 764 (Ala.2002), and Ex parte Liberty Nat’l Life Ins. Co., 858 So.2d 950, 957-59 (Ala.2003) (Johnstone, J., dissenting). “[T]he only element of the rule of repose is time.” Boshell 418 So.2d at 91.’ ”

Snider v. Morgan, 113 So.3d 643, 650 (Ala.2012) (quoting American General Life & Accident Ins. Co. v. Underwood, 886 So.2d 807, 812 (Ala.2004)). The applicability of the rule of repose does not hinge on the denial of any substantive or procedural due-process rights; rather the rule serves as an absolute bar against stale claims, and the only element necessary for its application is the passage of time. Unlike the doctrine of laches, which requires an analysis of prejudice or disadvantage based on the circumstances of the case, and which might apply to invalidate an agency’s decision under § 41-22-20(k)(7), Ala.Code 1975, the rule of repose serves as an absolute bar to any proceedings.

The AAPA sets out a statutorily created process applicable to state agencies and boards. The rule of repose is a creature of common law and not a statute. Judicial review of administrative-agency decisions is extremely limited, and a court may reverse an agency decision based only on specifically listed grounds. Courts are authorized to grant “appropriate relief from the agency action, equitable or legal,” only if specific grounds are established. § 41-22-20(k), Ala.Code 1975. We recognize that one of the grounds for reversal of an agency decision is if the decision is “[ajffected by other error of law.” § 41-22-20(k)(5), Ala.Code 1975. But we do not find any legislative intent to support the argument that the failure to apply the rule of repose amounts to an “error of law” sufficient to support a court’s reversal of an agency decision against a licensee; moreover, the rule of repose has not been codified as part of the AAPA for application to administrative proceedings. In fact, the legislature has not applied any limitations period to complaints initiated by the Board. In enacting the AAPA and the laws governing the Board, the legislature could have imposed a limitations period, including the rule of repose, to apply to complaints initiated by the Board, but it did not do so.

“The fundamental rule of statutory construction is to ascertain and give effect to the intent of the legislature in enacting the statute. Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.”

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

Perhaps the legislature reasoned that administrative agencies should have the authority to prosecute claims against their licensees regardless of when the alleged misconduct occurred. As we stated in Ex parte Medical Licensure Commission of Alabama, 13 So.3d 397, 410 (Ala.Civ.App.2008):

“The state has not only a strong interest, but an obligation, to protect the health, safety, and welfare of its citizens. The state’s interest is far superior to the right of any individual to practice his profession, especially when incompetency or misconduct in the practice of that profession can threaten life itself.”

Our supreme court has previously held that when the state has an interest in correcting a public wrong, rules of prescription, such as the rule of repose, are not available to bar the state from correcting that wrong. See Folmar Mercantile Co. v. Town of Luverne, 203 Ala. 363, 364, 83 So. 107, 108 (1919) (“It is because no right can be predicated of such a public wrong that neither rules of prescription nor statutes of limitations are available to preserve, against injunctive process, the offending status in a public highway.”). In Brown v. First National Bank of Monroe-ville, 447 So.2d 145, 148 (Ala.1983), our supreme court stated in dicta that the state may have a meritorious argument to overcome a defense of the rule of repose, as well as the doctrine of laches, when it seeks to end a violation of a law that is designed to protect the public.

Thus, we conclude that there is no statutory basis for application of the rule of repose in the administrative setting unless or until the legislature directs otherwise. We hold that rejection of the applicability of the common-law rule of repose in administrative proceedings does not implicate any constitutional due-process rights, is not a violation of any statute, and does not amount to an “error of law.” See § 41-22-20(k)(5), Ala.Code 1975. Therefore, Hamilton cannot rely on the rule of repose to defend against the Board’s complaint.

Conclusion

A court may set aside an administrative agency’s decision only if the record establishes one of the specific grounds listed in § 41-22-20(k), Ala.Code 1975. We are not permitted to substitute our judgment for that of the Board, regardless of whether we would have made the same decision. Because the record does not support a holding that the doctrine of laches was sufficiently established to overturn the Board’s decision, and because the rule of repose is inapplicable to administrative proceedings, the circuit court’s judgment in this matter must be reversed.

REVERSED AND JUDGMENT RENDERED.

THOMPSON, P.J., concurs.

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

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

PITTMAN, Judge,

concurring in part and concurring in the result.

I concur in the result to reverse the circuit court’s judgment, and I concur in the main opinion except to the extent that it concludes that a failure of an administrative agency to apply the common-law rule of repose in an appropriate case is not an “error of law” that can be corrected via reversal of the agency’s decision in a judicial-review proceeding under the authority of Ala.Code 1975, § 41-22-20(k)(5). I am persuaded that reversal in this case is proper, however, based upon the apparent alternative rationale suggested in the main opinion that agencies of the state should, in certain circumstances, be entitled to avoid any effect that the rule of repose might otherwise have when such agencies are seeking to address violations of laws designed to protect the public welfare, and especially when, as in this case, those agencies act in a prompt manner upon first receiving notice of a violation of those laws.

THOMAS, J., concurs.

      . This court granted a motion to refer to the complainant using only her initials.


author: PER CURIAM.

text:
    Inquiry Concerning a Judge, No. 13-344 re Susan B. FLOOD.
    No. SC14-1364.
    Supreme Court of Florida.
    Nov. 6, 2014.
    Ricardo Morales, III, Chair, and Michael Louis Schneider, General Counsel, Tallahassee, FL, for Judicial Qualifications Commission, Petitioner.
    John Wesley Frost, II of Frost Van den Boom, P.A., Bartow, FL, for Judge Susan B. Flood, Respondent.
   PER CURIAM.

In this case, we review the findings and recommendation of discipline of the Florida Judicial Qualifications Commission (JQC), recommending that Judge Susan B. Flood, Polk County Judge, receive the sanction of a public reprimand for violating Canons 1 and 2A of the Florida Code of Judicial Conduct. We have jurisdiction. See art. V, § 12, Fla. Const. For the reasons that follow, we approve the JQC’s findings and recommendation of discipline.

I. BACKGROUND

This action stems from charges filed against Judge Flood arising out of an inappropriate relationship with her bailiff, over whom she exercised supervisory authority. The JQC’s Notice of Formal Charges filed against Judge Flood recognized that a judge exercises “supervisory control” over her bailiff and alleged that Judge Flood had a “friendship” with her bailiff that became so close that it created an “appearance of impropriety.”

Ultimately, after Judge Flood testified before the Investigative Panel of the JQC, Judge Flood and the JQC entered into a stipulation, in which Judge Flood admitted to “violations of the Judicial Canons” based on “a relationship between the Judge and an individual over whom she had supervisory control.” As is outlined in the JQC’s Notice of Formal Charges and accepted in the stipulation by Judge Flood, she “entered into an inappropriate relationship with her bailiff,” which was described as a “friendship” that “went beyond the fraternization that normally occurs in a professional workplace context.”

The stipulation recites that, during the time Judge Flood maintained her relationship with her bailiff, “some judicial colleagues approached her with concerns over the level of friendship with someone over whom she exercised supervisory authority.” In the stipulation, Judge Flood accepts “full responsibility” for her wrongdoing and acknowledges that such conduct should not have occurred. The stipulation states that Judge Flood “regrets and apologizes for her actions” and “has taken steps to ensure that there is no reoccur-rence.” The stipulation also notes Judge Flood’s unblemished record as a county judge and her regular service as an acting circuit judge and concludes that the misconduct was an isolated incident and does not demonstrate an unfitness for office.

The stipulation incorporates the JQC’s findings and recommendation of discipline, in which the JQC concluded that Judge Flood violated Canons 1 and 2A of the Code of Judicial Conduct. Considering Judge Flood’s responsiveness, candor, and cooperation with its inquiries, the JQC recommended a public reprimand as the appropriate sanction for these violations.

II. ANALYSIS

Article V, section 12, of the Flori-' da Constitution, provides that in cases of judicial misconduct, this Court “may accept, reject, or modify in whole or in part the findings, conclusions, and recommendations of the [JQC] and it may order that the ... judge be subjected to appropriate discipline.” Art. V, § 12(c)(1), Fla. Const. “This Court reviews the findings of the JQC to determine whether the alleged violations are supported by clear and convincing evidence, and reviews the recommended discipline to determine whether it should be approved.” In re Woodard, 919 So.2d 389, 390 (Fla.2006). “Although this Court gives the findings and recommendations of the JQC great weight, the ultimate power and responsibility in making a determination to discipline a judge rests with this Court.” In re Renke, 933 So.2d 482, 493 (Fla.2006) (citing In re Angel, 867 So.2d 379, 382 (Fla.2004)).

In its findings and recommendation of discipline, the JQC found that Judge Flood’s conduct violated Canons 1 and 2A, which require a judge to act at all times in a manner that upholds the integrity of the judiciary and to avoid the appearance of impropriety. Canon 1 states: “A judge should participate in establishing, maintaining, and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary may be preserved.” Canon 2A states: “A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

We have held that “where a judge admits to wrongdoing and the JQC’s findings are undisputed, this Court will ordinarily conclude that the JQC’s findings are supported by clear and convincing evidence.” In re Diaz, 908 So.2d 334, 337 (Fla.2005). In this case, Judge Flood admitted to the alleged wrongdoing, and upon review, we determine that the JQC’s findings are supported by clear and convincing evidence. Because we conclude that the findings of the JQC are supported by clear and convincing evidence, we give the findings “persuasive force and great weight” in our consideration of the JQC’s recommended discipline. In re Maloney, 916 So.2d 786, 788 (Fla.2005).

The JQC concluded that Judge Flood’s conduct was an isolated incident and does not demonstrate an unfitness for office. Judge Flood recognized the inappropriateness of her behavior, accepted full responsibility, and apologized for her actions. Judge Flood further recognized that “her actions have the effect of lessening the public’s confidence in the judiciary.” In addition, not only has Judge Flood accepted “full responsibility for her actions that put her in violation of Canons 1 and 2A of the Code of Judicial Conduct,” but she “has taken steps to ensure that there is no reoccurrence of situations similar” to what occurred in this case.

We agree that Judge Flood’s conduct in having an “inappropriate relationship” with her bailiff, over whom she exercised supervisory authority, was clearly unacceptable. While we have not been provided with the details of this “inappropriate relationship,” we accept the characterization by the JQC and Judge Flood’s own stipulation that this relationship went beyond the “fraternization that normally occurs in a professional workplace.” We agree that such improper conduct in the workplace is of greater concern when engaged in by judges, who are held to the high standards of the Code of Judicial Conduct.

We recognize, however, that in this case the misconduct was an isolated incident in an otherwise exemplary career as a judge. Judge Flood has admitted her wrongdoing, in particular that “her actions have the effect of lessening the public’s confidence in the judiciary,” and she has vowed that such misconduct will not be repeated. For all these reasons, we accept the JQC’s recommendation of a public reprimand. Existing precedent suggests that a public reprimand is appropriate under these circumstances. See, e.g., In re Adams, 932 So.2d 1025, 1027-28 (Fla.2006) (approving public reprimand for a judge who admitted to having an inappropriate relationship with an attorney who was practicing before him; agreed that such conduct violated Canons 1, 2, and 3; expressed remorse; and apologized). .

In this instance, we agree with the JQC’s recommendation that, “in the interests of justice, the public welfare and sound judicial administration will be well served” by a public reprimand of Judge Flood. Judge Flood does not contest this recommendation of discipline.

III. CONCLUSION

For all these reasons, we conclude that there is clear and convincing evidence in support of the JQC’s findings of fact as to both violations of the Code of Judicial Conduct, and we approve the stipulation entered into by Judge Flood and the JQC. Accordingly, we hereby command Judge Susan B. Flood to appear before this Court for the administration of a public reprimand át a time to be established by the Clerk of this Court.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON, and PERRY, JJ., concur.


text:
    In re AMENDMENTS TO FLORIDA PROBATE RULE 5.590.
    No. SC14-1972.
    Supreme Court of Florida.
    Nov. 6, 2014.
    Sean William Kelley, Chair, Florida Probate Rules Committee, Kelley & Kelley, P.L., St. Augustine, FL, and John F. Harkness, Jr., Executive Director, and Heather S. Telfer, Bar Staff Liaison, The Florida Bar, Tallahassee, FL, for Petitioner.
   PER CURIAM.

In response to recent legislation, The Florida Bar’s Probate Rules Committee (Committee) has filed an out-of-cycle, fast-track report proposing an amendment to Florida Probate Rule 5.590 (Application for Appointment as Guardian; Disclosure Statement; Filing). We have jurisdiction. See art. V, § 2(a), Fla. Const.; Fla. R. Jud. Admin. 2.140(e).

The Committee proposes amending subdivision (a)(1)(A) of rule 5.590 to require that an application for appointment as guardian include “a statement indicating whether the applicant has ever been (i) arrested or (ii) convicted of a felony, even if the record of such arrest or conviction has been expunged, unless the expunction was ordered pursuant to section 943.0583, Florida Statutes.” According to the report, the amendment is intended to conform the rule to recent amendments to section 943.0585(4)(a), Florida Statutes (2013), made by chapter 2014-124, Laws of Florida, which became effective July 1, 2014, as well as to sections 744.309(3) and 943.0583, Florida Statutes (2014). The Executive Committee of the Board of Governors of The Florida Bar unanimously approved the proposal.

After considering the proposed amendment and the relevant legislation, we amend rule 5.590 as proposed and reflected in the appendix to this opinion. New language is underscored. The committee notes are offered for explanation only and are not adopted as an official part of the rules. The amendments shall become effective immediately upon the release of this opinion. Because the amendments were not published for comment prior to their adoption, interested persons shall have sixty days from the date of this opinion in which to file comments with the Court.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON, and PERRY, JJ., concur.

APPENDIX

RULE 5.590. APPLICATION FOR APPOINTMENT AS GUARDIAN; DISCLOSURE STATEMENT; FILING

(a) Individual Applicants.

(1) The application for appointment shall contain:
(A) the applicant’s qualifications to serve as a guardian, including a statement indicating whether the applicant has ever been (i) arrested or (ii) convicted of a felony, even if the record of such arrest or conviction has been expunged, unless the expunction was ordered pursuant to section 943.0583, Florida Statutes; and
(B) [No Change]
(2) [No Change]

(b)-(d) [No Change]

Committee Notes

Rule History

1988 Revision-2014 Revision: [No Change]

2014 Revision: Amends subdivision (a)(1)(A) to conform to sections 744.309(3), 943.0583, and 943.0585, Florida Statutes. Committee notes revised.

Statutory References

§ 393.063(17), Fla. Stat. Definitions.

§ 393.12, Fla. Stat. Capacity; appointment of guardian advocate.

§ 744.102(4), (9), (11), (14), (22) Fla. Stat. Definitions.

§ 744.3085, Fla. Stat. Guardian advocates.

§ 744.309, Fla. Stat. Who may be appointed guardian of a resident ward.

§ 744.3125, Fla. Stat. Application for appointment.

§ 744.331(1), Fla. Stat. Procedures to determine incapacity.

§ 744.3371, Fla. Stat. Notice of petition for appointment of guardian and hearing.

§ 943.0583, Fla. Stat. Human trafficking victim expunction.

§■943.0585, Fla. Stat. Court-ordered ex-punction of criminal history records.

Rule References

[No Change]

      . See ch.2014-124, §§ 6, 8, Laws of Fla.

      . All comments must be filed with the Court on or before January 6, 2015, with a certificate of service verifying that a copy has been served on the Committee Chair, Mr. Sean W. Kelley, 43 Cincinnati Avenue, Saint Augustine, Florida 32084-3244, sean@kelleyand kelley.com, and on the Bar Staff Liaison to the Committee, Heather Telfer, 651 E. Jefferson Street, Tallahassee, Florida 32399-2300, htelfer@flabar.org, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. The Committee Chair has until January 27, 2015, to file a response to any comments filed with the Court. If filed by an attorney in good standing with The Florida Bar, the comment must be electronically filed via the Portal in accordance with In re Electronic Filing in the Supreme Court of Florida via the Florida Courts E-Filing Portal, Fla. Admin. Order No. AOSC13-7 (Feb. 18, 2013). If filed by a nonlawyer or a lawyer not licensed to practice in Florida, the comment must be electronically filed via e-mail in accordance with In re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004). Electronically filed documents must be submitted in Microsoft Word 97 or higher. Any person unable to submit a comment electronically must mail or hand-deliver the originally signed comment to the Florida Supreme Court, Office of the Clerk, 500 South Duval Street, Tallahassee, Florida 32399-1927; no additional copies are required or will be accepted.


text:
    Nadia GARCON, et al., Petitioners, v. FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION, Respondent.
    No. SC12-2406.
    Supreme Court of Florida.
    Nov. 6, 2014.
    Stephen Anthony Taylor of Suarez & Taylor, Attorneys at Law, Miami, FL, and Nichole Johnston Segal and Bard Daniel Rockenbach of Burlington & Rockenbach, P.A., West Palm Beach, FL, for Petitioners.
    James Hamilton Kerr Bruner, Sr. of James H.K. Bruner, P.A., Tallahassee, FL,

      Stuart Fraser Williams, General Counsel, Agency for Health Care Administration, Tallahassee, FL, and Pamela Jo Bondi, Attorney General, Allen C. Winsor, Solicitor General, and Diane G. DeWolf, Deputy Solicitor General, Tallahassee, FL, for Respondent.
    Celene Harrell Humphries and Maegen Peek Luka of Brannock & Humphries, Tampa, FL, for Amicus Curiae Florida Justice Association.
   PER CURIAM.

We accepted jurisdiction to review the Third District Court of Appeal’s decision in Garcon v. Agency for Health Care Administration, 96 So.3d 472 (Fla. 3d DCA 2012), based on express and direct conflict with Smith v. Agency for Health Care Administration, 24 So.3d 590 (Fla. 5th DCA 2009), and Roberts v. Albertson’s, Inc., 119 So.3d 457 (Fla. 4th DCA 2012), on the issue of whether a plaintiff should be afforded the opportunity to demonstrate that a Medicaid lien exceeds the amount recovered by the plaintiff for medical expenses. See art. V, § 3(b)(3), Fla. Const. Prior to filing an answer brief in this case, the Respondent filed an unopposed motion to remand for further proceedings in light of the United States Supreme Court’s decision in Wos v. E.M.A., — U.S. —, 133 S.Ct. 1391, 185 L.Ed.2d 471 (2013), which both parties agree is now determinative of this case.

The Respondent concedes that, in light of Wos, the Third District’s decision in Garcon is erroneous, and this case should be remanded to the circuit court to reconsider its decision. After a review of the filings, and the parties’ arguments, we grant the Respondent’s unopposed motion and quash the Third District’s decision. We direct that this case be remanded to the Third District to return the case to the circuit court for further proceedings consistent with the United States Supreme Court’s decision in Wos.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, and PERRY, JJ„ concur.

CANADY and POLSTON, JJ„ dissent.

      . After this Court accepted jurisdiction, the First District Court of Appeal decided Harrell v. State, 143 So.3d 478 (Fla. 1st DCA 2014), in which the First District agreed with the decisions of the Fifth District Court of Appeal in Smith and the Fourth District Court of Appeal in Roberts, thereby also creating conflict with the Third District’s decision in Garcon.