author: MURDOCK, Justice. COBB, Chief Justice LYONS, Justice

text:
    Ex parte CITIZENS PROPERTY INSURANCE CORPORATION. (In re Ann B. Garnett v. Citizens Property Insurance Corporation et al.).
    1070663.
    Supreme Court of Alabama.
    Jan. 30, 2009.

      Kori L. Clement of Hare, Clement & Duck, P.C., Birmingham; and John A. Un-zicker, Jr., of Vernis & Bowling of Northwest Florida, P.A., Pensacola, for petitioner.
    F. Wendell Allen, Kevin C. Newsom, and Andrew L. Brasher of Bradley Arant Rose & White, LLP, Birmingham; and Steven L. Nicholas of Cunningham, Bounds, Crowder, Brown & Breedlove, Mobile, for respondent.
   MURDOCK, Justice.

Citizens Property Insurance Corporation (“Citizens”) petitions for a writ of mandamus directing the Mobile Circuit Court to vacate its order denying Citizens’ motion to dismiss an action against it for lack of personal jurisdiction and to entel-an order granting the motion to dismiss. We grant the petition.

Ann B. Garnett, a resident of Huntsville, owned a two-story beach home located in Navarre Beach, Florida. The home was insured against wind damage by Citizens, which is “a [Florida] government entity that is an integral part of the state, and that is not a private insurance company.” Fla. Stat. Ann. § 627.351(6)(a)1 (2008). The Florida legislature established Citizens, a nonprofit corporation, “to provide affordable property insurance to applicants who are in good faith entitled to procure insurance through the voluntary market but are unable to do so.” Id. Citizens issues insurance only on property located in Florida and only through insurance agents licensed in Florida.

In the aftennath of a series of hurricanes that struck Florida in 2004, Citizens entered into agreements with numerous independent claims adjusters to evaluate wind-damage claims by Citizens’ insureds. One such adjuster was Allied American Adjusting Company, LLC (“Allied”), an Alabama limited liability company. Citizens’ contract with Allied was entered into in Florida.

In September 2004, Garnett’s beach home was destroyed by Hurricane Ivan. Thereafter, she filed a claim on her Citizens policy. Allied was the claim adjuster for Garnett’s claim. Allied hired Joseph Morris, a resident of Mobile, as the “primary adjuster” to assist with Garnett’s claim. Also, Allied retained Engineering Fire Investigations (“EFI”), a Tennessee corporation that specializes in environmental investigations, to assist with the investigation of Garnett’s claim.

In May 2005, after Allied completed its review of Garnett’s claim, Citizens denied the claim on the grounds that the damage to Garnett’s beach home allegedly was caused by storm surge from Hurricane Ivan, not by wind.

In January 2006, Garnett sued Citizens, Allied, and EFI in the Madison Circuit Court; she subsequently amended her complaint to add Morris as a defendant. Garnett’s complaint, as amended, contains claims of breach of contract, bad faith, “[ujnfair claim settlement practices,” see Florida Stat. Ann. § 626.9541(1)(i) (2008), negligence, wantonness, misrepresentation, suppression, and civil conspiracy, specifi-eally a conspiracy to conduct a biased investigation that would lead to the denial of Garnett’s insurance claim.

Citizens filed a motion to dismiss Gar-nett’s action on the grounds that the Madison Circuit Court lacked personal jurisdiction over Citizens and on grounds of forum non conveniens. See Ala.Code 1975, § 6-5-430 (“[TJhe courts of this state shall apply the doctrine of forum non conveniens in determining whether to accept or decline to take jurisdiction of an action based upon such claim originating outside this state[.]”). In May 2006, the Madison Circuit Court conducted a hearing on Citizens’ motion. In November 2006, the Madison Circuit Court entered an order, sua sponte, transferring on forum non conve-niens grounds the action to the Mobile Circuit Court.

In February 2007, the Mobile Circuit Court conducted a hearing on Citizens’ motion to dismiss, after which it ordered limited discovery concerning Citizens’ insureds who reside in Alabama. In part, the results of the ordered discovery reflect that Citizens has approximately 1.3 million active insurance policies and that, of the insurance policies Citizens issued between 2002 and 2007 (either as an original policy or as a renewal policy), 2,363 contain an Alabama mailing address for notices and correspondence.

According to an affidavit from Ray Walton, director of claims for Citizens, Garnett initially obtained her policy through a Florida insurance broker located in Fort Lauderdale, Florida. Citizens mailed the notices for Garnett’s policy to the address Garnett provided on her application for insurance, i.e., her Alabama address. We also note that Walton averred that Citizens maintains no place of business or office in Alabama, it does not conduct business in Alabama, it has no property in Alabama, it has no telephone listing in Alabama, it has no employees or authorized agents in Alabama, and it has derived no income from business conducted in Alabama.

On January 4, 2008, the Mobile Circuit Court entered an order denying Citizens’ motion to dismiss. On January 24, 2008, Garnett, Allied, EFI, and Morris filed a joint motion to dismiss, with prejudice, Garnett’s claims against them; the trial court entered an order dismissing the claims. Thus, Citizens is the only remaining defendant in Garnett’s action.

Citizens petitions this Court for a writ of mandamus directing the Mobile Circuit Court to vacate its January 4, 2008, order and to enter an order of dismissal of Gar-nett’s claims against it on the grounds of lack of personal jurisdiction or forum non conveniens. Because we conclude that Citizens’ petition is due to be granted on the ground that the trial court lacks personal jurisdiction over Citizens, we preter-mit any discussion of the issue whether Citizens’ motion to dismiss should have been granted on the ground of forum non conveniens.

It is well settled that

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

Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995). A petition for a writ of mandamus can be used to challenge the denial of a motion to dismiss for lack of personal jurisdiction. Ex parte McInnis, 820 So.2d 795, 798 (Ala.2001).

The issue of personal jurisdiction “ ‘stands or falls on the unique facts of [each] case.’ ” Ex parte I.M.C., Inc., 485 So.2d 724, 725 (Ala.1986) (quoting and adopting the trial court’s order). “An appellate court considers de novo a trial court’s judgment on a party’s motion to dismiss for lack of personal jurisdiction.” Elliott v. Van Kleef 830 So.2d 726, 729 (Ala.2002). “In considering a Rule 12(b)(2), Ala. R. Civ. P., motion to dismiss for want of personal jurisdiction, a court must consider as true the allegations of the plaintiffs complaint not controverted by the defendant’s affidavits .... ” Ex parte Mclnnis, 820 So.2d at 798. If, however,

“the defendant makes a prima facie evi-dentiary showing that the Court has no personal jurisdiction, ‘the plaintiff is then required to substantiate the jurisdictional allegations in the complaint by affidavits or other competent proof, and he may not merely reiterate the factual allegations in the complaint.’ ”

Ex parte Covington Pike Dodge, Inc., 904 So.2d 226, 229-30 (Ala.2004) (quoting Mercantile Capital, LP v. Federal Transtel, Inc., 193 F.Supp.2d 1243, 1247 (N.D.Ala.2002)).

Where, as here, a case involves service of process on a foreign defendant pursuant to Alabama’s long-arm rule,

“[a]n appropriate basis exists for service of process outside of this state ... when the person or entity has such contacts with this state that the prosecution of the action against the person or entity in this state is not inconsistent with the constitution of this state or the Constitution of the United States .... ”

Rule 4.2(b), Ala. R. Civ. P. This Court has stated that Rule 4.2 “extends the personal jurisdiction of Alabama courts to the limit of due process under the United States and Alabama Constitutions.” Hiller Invs., Inc. v. Insultech Group, Inc., 957 So.2d 1111, 1115 (Ala.2006).

As to the “limits of due process” under the United States Constitution, in International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), the Supreme Court stated:

“[I]n order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he [must] have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ”

326 U.S. at 316, 66 S.Ct. 154 (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940)); see also Sudduth v. Howard 646 So.2d 664, 667 (Ala.1994). The Supreme Court continued in International Shoe:

“Whether due process is satisfied must depend ... upon the quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure. That clause does not contemplate that a state may make binding a judgment in personam against an individual or corporate defendant with which the state has no contacts, ties, or relations.
“But to the extent that a corporation exercises the privilege of conducting activities within a state, it enjoys the benefits and protection of the laws of that state. The exercise of that privilege may give rise to obligations; and, so far as those obligations arise out of or are connected with the activities within the state, a procedure which requires the corporation to respond to a suit brought to enforce them can, in most instances, hardly be said to be undue.”

326 U.S. at 319-20, 66 S.Ct. 154 (citations omitted; emphasis added).

Personal jurisdiction can rest either on the theory of specific jurisdiction, when “a State exercises personal jurisdiction over a defendant in a suit arising out of or related to the defendant’s contacts with the forum,” Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n. 8, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984), or on the theory of general jurisdiction, “when the cause of action does not arise out of or relate to the foreign corporation’s activities in the forum State, [but] ... there are sufficient [continuous and systematic] contacts between the State and the foreign corporation.” Id. at 414-16, 104 S.Ct. 1868; see also Ex parte Covington Pike Dodge, Inc., supra. This Court has stated, however, that regardless of whether the issue of jurisdiction is considered under specific-jurisdiction analysis or under general-jurisdiction analysis, “[t]he critical question with regard to the nonresident defendant’s contacts [with the forum state] is whether the contacts are such that the nonresident defendant ‘ “should reasonably anticipate being haled into court” in the forum state.” Elliott, 830 So.2d at 730 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985), quoting in turn World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980) (emphasis added)). As the Supreme Court has explained, it is only “[w]hen a corporation ‘purposefully avails itself of the privilege of conducting activities within the forum State,’ Hanson v. Denckla, 357 U.S. [235] at 253 [ (1958) ], [that] it has clear notice that it is subject to suit there.” WorldWide Volkswagen, 444 U.S. at 297, 100 S.Ct. 559 (emphasis added). “This purposeful-availment requirement assures that a defendant will not be haled into a jurisdiction as a result of ‘ “the unilateral activity of another person or a third person.” ’ ” Elliott, 830 So.2d at 731 (quoting Burger King, 471 U.S. at 475, 105 S.Ct. 2174, quoting in turn Helicópteros Nacionales de Colombia, S.A., 466 U.S. at 417, 104 S.Ct. 1868).

Based on the materials submitted to the trial court concerning Citizens’ contacts with Alabama, we conclude that its contacts are not sufficient to satisfy the requirements for personal jurisdiction described above. As already noted, Citizens is a nonprofit “[Florida] government entity that is an integral part of th[at] State.” Further, it insures only property located in Florida, and it does so only because it has been mandated to do so by the Florida legislature. It issues insurance policies only through Florida-licensed insurance brokers; the policy at issue was issued through a Florida insurance broker located in Fort Lauderdale. There is no evidence indicating that Citizens advertises in Alabama or that it otherwise solicits business in Alabama. Insofar as its policyholders are concerned, the most that can be said of Citizens, based on the record before us, is that it uses the United States mail to forward notices from its Florida office to addresses in Alabama designated by a fraction of a percent of those policyholders. Even this act is performed only as a result of the unilateral designation by those policyholders of such an address, typically because the policyholder has chosen to maintain a principal residence in Alabama. See Hanson, 357 U.S. at 253, 78 S.Ct. 1228 (“The unilateral activity of those who claim some relationship with a nom’esident defendant cannot satisfy the requirement of contact with the forum State. The application of that rule will vary with the quality and nature of the defendant’s activity, but it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities 'within the forum State, thus invoking the benefits and protections of its laws.” (emphasis added)); see also 16 Lee R. Russ & Thomas F. Segalla, Couch on Insurance § 228:22 (3d ed. 2000) (“[T]he court must consider whether the insurer’s contacts with a state were the result of a deliberate and purposeful act on the part of the insurer, or whether the contacts were compelled by the unilateral actions of the insured, or were created by circumstances over which the insurer had no control.”). Also, Citizens’ contract with Allied was entered into in Florida and concerned the performance of services in Florida; the only connection with Alabama in that regard is that Allied is an Alabama limited liability company. In addition, Citizens’ actions toward Garnett in response to Allied’s coverage recommendation were based on an investigation and decision-making process that apparently occurred in Florida.

Based on the foregoing, we cannot conclude that Garnett has established that Citizens purposefully availed itself of the privilege of conducting business activities within the State of Alabama such that Citizens “reasonably should anticipate being haled into court” in this State. We hold that Citizens did not subject itself to the personal jurisdiction of Alabama courts in the present case, and its petition is due to be granted.

PETITION GRANTED; WRIT ISSUED.

WOODALL, STUART, SMITH, BOLIN, PARKER, and SHAW, JJ., concur.

COBB, C.J., and LYONS, J., dissent.

COBB, Chief Justice

(dissenting).

I concur with Justice Lyons’s assessment that, because of Citizens’ general contacts with this State, personal jurisdiction does exist under a general-contacts analysis.

I write to add that personal jurisdiction would also exist under a specific-contacts analysis. That is, regardless of whether it had sufficient general contacts with the State to be subject to personal jurisdiction, Citizens’ specific contacts with Garnett are sufficient to give rise to personal jurisdiction over Garnett’s action.

At the time it entered into an insurance contract with Garnett, Citizens knew that it was undertaking a duty not only to pay money upon the occurrence of certain contingencies related to Garnett’s Florida real property, but also to act in good faith and to deal fairly with Garnett. Citizens also knew, at the time it entered into the contract, that the violation of this duty of good faith and fair dealing, and any related tortious conduct, would give rise to damages in tort personal to Garnett, who was an Alabama resident. See Chavers v. National Sec. Fire & Cas. Co., 405 So.2d 1 (Ala.1981).

In fact, Garnett asserts tort claims in this case seeking damages not for damage to the insured property in Florida, but impersonal harm arising from alleged bad-faith investigation of her claim and denial of coverage, misrepresentation, suppression, and conspiracy on the part of Citizens.

In particular, the record reflects that the letter from Citizens denying coverage, which is alleged to have been sent in bad faith and to have contained misrepresentations or to have been a vehicle for fraud and suppression, was sent to the insured, Garnett, in Alabama. Thus, the parties’ evidentiary submissions establish that the allegations of bad faith, fraudulent misrepresentation, and suppression arise from Citizens’ own deliberate and purposeful dealings and communications with Garnett in Alabama — not from any unilateral act on Garnett’s part. In addition, Garnett alleges that Citizens conspired through communications with its Alabama-based adjuster to conduct a flawed investigation of Garnett’s claim that would result in the denial of coverage.

This is not a case where, as the majority hypothesizes in footnote 6 of its opinion, an insured has procured a contract in one state and then unilaterally moves its primary residence to another. In fact, this case is not even akin to a products-liability case in which a person purchases a defective product in one state and then unilaterally moves the product to the state of the purchaser’s residence. The alleged tor-tious conduct here occurred not when the insurance contract at issue was created (perhaps in Florida), but when the insurer investigated and then denied the insured’s claim. At that time, the insurer reasonably ought to have anticipated that the direct consequences of its actions would have been felt by the insured in Alabama. See Duke v. Young 496 So.2d 37, 39 (Ala.1986) (holding that a person subjects himself to personal jurisdiction in a particular state if he reasonably ought to anticipate that someone residing in that state would be the recipient of the direct consequences of his actions).

The majority also poses the following hypothetical in footnote 6: “To avoid being haled into court in another state, should a Florida insurance company in the sole business of selling casualty insurance on Florida real property through Florida-based agents be required to insist that prospective policyholders go through the motion of renting a post-office box somewhere in the state of Florida for the purpose of receiving notices from that company?” I agree that the answer to that question is “no.” Several simple solutions, however, exist for the insurance company in such a situation. For example, if the insurer truly is not doing insurance business outside the state of Florida so that it would be subject to the insurance regulations of other states, I see no reason why the insurer would not be able to insist upon a Florida venue provision in the insurance contract. Further, Citizens is a creature of Florida statutory law. Assuming Citizens is not subjecting itself to regulation in other states by the extent of its insurance business there, I see no reason why the Florida legislature could not have provided that, as a condition of obtaining insurance from Citizens, each insured must agree to pursue any legal action against Citizens in Florida.

In conclusion, “[t]he fundamental question is, did the defendant act in such a manner that he reasonably ought to anticipate the direct conseqtiences of his actions to be felt by another person residing in another state? Duke v. Young 496 So.2d at 39. Assuming the uncontradicted allegations in the complaint to be true and considering the evidentiary submissions of the parties as they pertain to allegations that are in dispute, see Ex parte Safeway Ins. Co. of Alabama, Inc., 990 So.2d 344, 349-50 (Ala.2008), I believe that, in this case, the answer to that question would have to be “yes” — even if one looks solely at the specific contacts between Citizens and Garnett that give rise to this action. Therefore, I believe that personal jurisdiction exists, even under a specific-contacts analysis.

I respectfully dissent.

LYONS, Justice

(dissenting).

The effect of the use of the mail on an insurer’s doing business is explained in 1 Lee R. Russ & Thomas F. Segalla, Couch on Insurance § 3:13 (3d ed.1995):

“The traditional concept seems to be that a foreign insurer’s mere mailing of insurance applications and policies to residents of a state is not a sufficient basis of that state assuming jurisdiction over the insurer. Under this view the effecting of an isolated contract of insurance through the use of the mails, or the mailing of a policy from one state to the insured in another state does not amount to doing business in the latter state, and the same is true with regard to policies of renewal. Likewise, the issuance of a policy by a foreign insurance company to a resident of a state and the collection of premiums thereon by mail does not constitute ‘doing business’ in the state.”

(Emphasis added; footnotes omitted.)

Over 2,300 of the insurance policies Citizens issued (either as original policies or as renewal policies) between 2002 and 2007 contain an Alabama mailing address for notices and correspondence. Garnett received premium and policy-renewal notices from Citizens at her Alabama address. Citizens could have simply declined to issue policies to an applicant who could not furnish a Florida mailing address but who, instead, requested that Citizens use an address in an adjoining state for transacting business. Under these facts, where we do not deal with an isolated contract but one among many such contracts issued to policyholders in an adjoining state, I do not consider subjecting Citizens to the jurisdiction of an Alabama court to be offensive to notions of justice and fair play.

COBB, C.J., concurs.

      . Citizens is the successor entity to both the Florida Windstorm Underwriting Association, which was "a non-profit residual insurer, created by the Florida Legislature, to provide insurance for wind damage to property owners who were unable to obtain it otherwise," Zimmerman v. State, Office of Ins. Regulation, 944 So.2d 1163, 1164 (Fla.Dist.Ct.App.2006), and the Florida Residential Property Casualty Joint Underwriting Association, which was established to address the lack of available homeowner's property and casualty insurance in the private-insurance market after Hurricane Andrew in 1992. Symposium, Responsibility for the Restoration of the Hurricane Insurance Industry: Business Proposal or State Solution?, 31 Nova L.Rev. 527, 530-31 (2007).
      "Citizens' rates are required by law to be higher than the rates of private insurers. As a result, Citizens has a rate structure that is not meant to compete with the private market. In fact, it is '[djesigned to offer insurance only where the private market will not provide coverage' making it the 'provider of last resort.' "
      31 Nova L.Rev. at 531 (quoting Kevin M. McCarty et al., Task Force on Long-term Solutions for Florida's Hurricane Insurance Market 40 n. 8 (2006) (footnotes omitted)).

      . The gravamen of Garnett's action against Citizens is Citizens' decision not to pay for hurricane damage to Garnett’s residence in Florida. The complaint does not allege misrepresentation or suppression in relation to Garnett’s purchase of her insurance policy from Citizens. Instead, the allegations of misrepresentation and suppression in the complaint concern only facts "related to the investigation and adjustment of Ms. Garnett’s claim,” i.e., “that no evidence existed of wind damage to the home" and that storm surge was the cause of Garnett's loss. The complaint contains no allegation of reliance by Garnett on such representations. The pen-dency of the present case indicates that Gar-nett did not rely on any such representations and related denial of coverage. See generally Hunt Petroleum Corp. v. State, 901 So.2d 1 (Ala.2004); Restatement (Second) of Torts § 537 (1977) ("The recipient of a fraudulent misrepresentation can recover against its maker for pecuniary loss resulting from it if, but only if, ... he relies on the misrepresentation in acting or refraining from action ...."). Thus, such misrepresentations, even if made by Citizens in correspondence received by Garnett in Alabama, provide no basis for specific-contacts personal jurisdiction over Citizens in Alabama as argued by Chief Justice Cobb in her dissent.

      . Although Citizens ’ enjoys limited immunity under Florida law, the parties have not discussed the extent to which that immunity might be pertinent to some of Garnett’s claims. See Fla. Stat. Ann. § 627.351(6)(r)(2008). See also Nevada v. Hall, 440 U.S. 410, 99 S.Ct. 1182, 59 L.Ed.2d 416 (1979).

      . Citizens also filed a motion with the trial court requesting that it stay further proceedings, including further discovery, pending this Court's decision on Citizens' petition for writ of mandamus. The trial court denied the motion. Citizens then filed a motion with this Court requesting that we order the trial court to stay further proceedings pending our decision on Citizens' petition. We granted the motion.

      . The trial court made no findings of fact based on oral testimony that might implicate die ore tenus rule.

        . If, after procuring a policy from Citizens, an Alabama resident were to move to Oregon, and the insurer acquiesced in the insured's request to begin forwarding notices to the insured's new address in Oregon, could we say that the insurer was doing business in Oregon so as to reasonably be expected to be haled into court in that state? To avoid being haled into court in another state, should a Florida insurance company in the sole business of selling casualty insurance on Florida real property through Florida-based agents be required to insist that prospective policyholders go through the motion of renting a post-office box somewhere in the state of Florida for the purpose of receiving notices from that company? ,We suggest that the answer to both queries is "No.”

      . In support of her argument that Alabama courts have personal jurisdiction over Citizens, Garnett relies, in part, on McGee v. International Life Insurance Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957). McGee was decided in 1957, before the United States Supreme Court's decision in WorldWide Volkswagen. Moreover, it is distinguishable. In McGee, a Texas-based insurance company chose to insure the life of an individual residing in the forum state in which the underlying judgment was obtained, namely California. In contrast, the object of the insurance in the present case was real property located, not in Alabama — the forum state where the plaintiff seeks to obtain a judgment — but in the state of Florida.

      . I express no opinion as to whether the evidence supports Garnett's bad-faith, fraud, and suppression claims, or as to whether the fraud and suppression claims as currently stated are sufficient under Rule 9(b), Ala. R. Civ. P. I disagree with the reasoning underlying the majority’s statement that "[t]he pen-dency of the present case indicates that Gar-nett did not rely on any [allegedly fraudulent] representations and related denial of coverage.” 15 So.3d at 513 n. 2. The filing of a fraud action does not negate the possibility that reliance existed before the discovery of the alleged fraud. Furthermore, given the current stage of the litigation and the fact that the parties did not present evidence to this Court on the issue of reliance, I believe it is premature to opine on whether Garnett relied on any of Citizens' allegedly fraudulent representations.

      . The record indicates that Garnett’s insurance contract with Citizens was renewed on several occasions before Hurricane Ivan damaged Garnett's home, but Citizens did not present sufficient evidence from which to determine whether Florida is the locus of the renewal contracts. See Consolidated Underwriters Ins. Co. v. Landers, 285 Ala. 677, 235 So.2d 818 (1970) (recognizing that a renewal provision in an insurance policy constituted a continuing offer to insure and that payment of the renewal premium in advance constituted acceptance of that offer and created a binding contract of insurance). Even if I were to assume that the locus of the insurance contract at issue is Florida, that assumption would not change my analysis as to whether personal jurisdiction exists, because Citizens reasonably ought to have anticipated that tor-tious activity related to the investigation and denial of the claim would cause injury to Garnett in Alabama.


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    Ex parte Richard Lee FERGUSON (In re Richard Lee Ferguson v. Xiaohe Ferguson).
    2070577.
    Court of Civil Appeals of Alabama.
    Sept. 12, 2008.
    Rehearing Denied Oct. 24, 2008.
    Certiorari Denied Feb. 13, 2009 Alabama Supreme Court 1080192.

      Randall W. Nichols and Anne Lamkin Durward of Massey, Stotser & Nichols, P.C., Birmingham, for petitioner.
    Robert M. Echols, Jr., Birmingham, for respondent.
   MOORE, Judge.

Richard Lee Ferguson (“the husband”) petitions this court for a writ of mandamus directing the Jefferson Circuit Court to vacate its order denying his motion to dismiss the complaint for divorce filed by Xiaohe Ferguson (“the wife”). We deny the petition.

Procedural History

On November 15, 2007, the wife filed a complaint for a divorce from the husband. In her complaint, she alleged that she and the husband had been residents of Shelby County, Alabama, for more than six months immediately preceding the filing of the complaint and that the parties also reside in China. On December 19, 2007, the husband filed a motion to dismiss. On January 24, 2008, the husband filed a verified amended motion to dismiss. On February 1, 2008, the wife filed a response in opposition to the husband’s motion, along with evidentiary materials. On February 12, 2008, the trial court entered an order stating, in pertinent part: “Based in part on Jennings v. Jennings, 647 So.2d 777 (Ala.Civ.App.1994), the [husband’s] Motion to Dismiss is Denied.” On March 25, 2008, the husband filed his petition for a writ of mandamus.

Standard of Revieiv

“A writ of mandamus is an extraordinary remedy, and is appropriate when the petitioner can show (1) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.”

Ex parte BOC Group, Inc., 823 So.2d 1270, 1272 (Ala.2001). “A petition for a writ of mandamus is a proper means by which to seek review of a question of subject-matter jurisdiction.” Ex parte Williford, 902 So.2d 658, 662 (Ala.2004).

Discussion

“Section 30-2-5, Ala.Code 1975, discusses the residency requirements for a plaintiff in a divorce action when the defendant is a nonresident of Alabama and states:
“ ‘When the defendant is a nonresident, the other party to the marriage must have been a bona fide resident of this state for six months next before the filing of the complaint, which must be alleged in the complaint and proved.’
“If the residency requirements are not met, then a trial court does not have jurisdiction over the marital res and any judgment entered is void. Seymour v. Seymour, 597 So.2d 1368 (Ala.Civ.App. 1992); Chavis v. Chavis, 394 So.2d 54 (Ala.Civ.App.1981). For the purposes of § 30-2-5, residence is the same thing as domicile. Seymour v. Seymour, supra. ‘Domicile is defined as residence at a particular place accompanied by an intention to stay there permanently, or for an indefinite length of time.’ Nora v. Nora, 494 So.2d 16, 17 (Ala.1986). A person’s domicile continues until a new one is acquired. Id.”

Fuller v. Fuller, 991 So.2d 285, 290 (Ala.Civ.App.2008). “[T]he burden is on the party who asserts a change of domicile to prove it.” Richardson v. Richardson, 258 Ala. 423, 425, 63 So.2d 364, 366 (1953).

In the present case, the husband argues that the wife was not “a bona fide resident of this state for six months next before the filing of the complaint” and that he is not a resident of Alabama. Accordingly, he says, the trial court lacked subject-matter jurisdiction. The wife does not assert that she is a resident of Alabama. She does, however, argue that the husband had been domiciled in Alabama and that he had not effectively changed his domicile to China.

.The husband averred in his verified amended motion to dismiss that he is a resident of China. The husband verified that the parties own a house in Alabama but that it had been continuously rented to another family since November 2006 and that neither he nor the wife had resided in that house in over one year. In fact, the husband averred that he had been in the United States only for approximately 20 days since August 2006. He further stated that the parties’ three-year-old child has been enrolled in a five-day-a-week, bilingual, pre-kindergarten program in China since July 2007.

The wife submitted an affidavit in support of her opposition to the husband’s motion to dismiss. In that affidavit, the wife stated that she and the husband had resided in the United States and China “during the past few years” and that they own property, including a house, in both countries. The wife further stated in her affidavit that the husband’s permanent residence is in Alabama and that the husband claims the parties’ Alabama house as his permanent residence on all official documents and on his federal and state income-tax returns. She stated that the husband is a United States citizen and is not a citizen of China. The wife also stated that the husband “maintains a current driver’s license in Alabama, is registered to vote [in Alabama], owns real estate [in Alabama], maintains bank accounts [in Alabama], has employees [in Alabama], [and] files taxes in Alabama, both ... [individually] and [for] his corporation, L-Ferg, Inc.[]” To support her affidavit testimony, the wife submitted copies of the parties’ joint checking-account statements and 2006 federal and Alabama income-tax returns filed by the parties and filed by L-Ferg International.

We note that Andrews v. Andrews, 697 So.2d 54 (Ala.Civ.App.1997), one of the cases upon which the husband relies, is substantially analogous to this case. In Andrews, the husband filed a complaint for a divorce in Alabama, asserting that the parties had been residents of Alabama for more than six months. The wife, who had previously filed a complaint for divorce in Florida, entered a special appearance in the Alabama action to contest jurisdiction, asserting that she was a citizen of Florida and that the husband had not been a resident of Alabama for more than six months before his complaint for divorce was filed. 697 So.2d at 55. This court noted that the husband had resided in Alabama for the six months preceding the filing of his complaint for divorce. 697 So.2d at 56. However, the wife in Andrews presented evidence indicating that “the husband still carried a Florida driver’s license at the time of the hearing, and that litigation had begun before he changed his Birmingham country club membership statuses, voting locale, and tax information.” 697 So.2d at 57. This court held that the husband had effectively changed his domicile to Alabama, stating that the wife’s evidence “show[ed] only an inertial delay in notifying various authorities of his changed residence.” Id. We conclude, however, that Andrews should be overruled because it is not in line with other cases decided by this court and our supreme court.

In Ex parte Coley, 942 So.2d 349 (Ala.2006), Orliff Potts and Linda Potts, as personal representatives of the estate of Lindsay Faye Potts, sued Tyne Coley in the Jefferson Circuit Court. 942 So.2d at 351. Coley sought to transfer the action to the Perry Circuit Court. The trial court denied Coley’s motion to transfer, and Coley petitioned the Alabama Supreme Court for a writ of mandamus directing the trial court to transfer the action to the Perry Circuit Court, the county of her permanent residence. Id. at 351-52. The supreme court held that Coley had failed to establish that she had changed her domicile from Jefferson County to Perry County at the time the complaint was filed in January 2005, in face of evidence

“(1) that Coley was registered to vote in Jefferson County when this action was filed; (2) that Coley’s bank accounts list[ed] her home address as being in Jefferson County; (3) that Coley represented to lenders that she was a resident of Jefferson County; (4) that Coley represented to the Internal Revenue Service and the Alabama Department of Revenue on her tax returns filed in April 2005 that she was a resident of Jefferson County; (5) that Coley represented to health-care providers that she was a resident of Jefferson County; (6) that Coley represented to the driver’s license division of the State of Alabama that she resided in Jefferson County when she renewed her driver’s license in October 2004; and (7) that Coley is a member of a church in Jefferson County.”

942 So.2d at 354 (footnote omitted). Further, in Whetstone v. State Department of Revenue, 434 So.2d 796 (Ala.Civ.App.1983), an income-tax case in which the taxpayers, the Whetstones, asserted that they had been residents in a foreign country, not residents of Alabama, during the relevant tax years, this court held that, although the Whetstones had resided in a foreign country during the relevant period, the parties had “substantial ties in Alabama ... including their children, property, and parents.” 434 So.2d at 797. Further, this court stated that it could not “ignore other indicia of domicile including Alabama voter registration, banking accounts in Alabama and church membership in an Alabama church during the years in question.” Id. Based on that evidence, this court concluded that the Whetstones’ actions “indicated an intent to remain [in the foreign country] at the most only until the husband retires.” Id.

Similarly, in the present case, we conclude that the husband failed to prove that he had changed his domicile from Alabama to China. Although the husband had moved from Alabama to China, the husband had not demonstrated that, at the time the complaint for a divorce was filed, he intended to remain there permanently or for an indefinite length of time. At the time the complaint was filed, the husband continued to own property, including a house, in Alabama; he continued to claim the parties’ Alabama house as his permanent residence on all official documents and on his federal and state income-tax returns; he maintained a current driver’s license in Alabama; he was registered to vote in Alabama; he maintained bank accounts in Alabama; he had employees in Alabama; and he files taxes in Alabama. These facts indicate that the husband intended to return to Alabama, and, notably, the husband failed to attest otherwise.

Conclusion

Based on the foregoing, we conclude that the husband failed to show a clear legal right to the order sought. We, therefore, deny the husband’s petition for a writ of mandamus.

PETITION DENIED.

PITTMAN, BRYAN, and THOMAS, JJ., concur.

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

      . In her affidavit, the wife refers to this entity as "L-Ferg, Inc.”; however, throughout the rest of the materials before this court, this entity is referred to as "L-Ferg International.”

      . See note 1, supra.


text:
    Lori Jane Ethridge McCORMICK v. William Curtis ETHRIDGE.
    2070405.
    Court of Civil Appeals of Alabama.
    Oct. 17, 2008.

      Jerry M. Blevins, Montgomery, for appellant.
    Richard D. Lively, Prattville, for appel-lee.
   MOORE, Judge.

On June 15, 2000, the Autauga Circuit Court (“the trial court”) entered a divorce judgment divorcing Lori Jane Ethridge McCormick (“the mother”) and William Curtis Ethridge (“the father”) and incorporating an agreement entered between the parties. Although a copy of the parties’ divorce judgment is not part of the record in this appeal, that judgment and its subsequent modifications evidently awarded the parties joint legal custody and awarded the father primary physical custody of the parties’ only child. The judgment also apparently required the mother to pay certain medical expenses for the benefit of the child.

On June 13, 2006, the mother filed a petition to modify the custody provisions of the divorce judgment. Thereafter, the parties filed various motions, none of which concerned the alleged failure of the mother to pay medical expenses. The trial court conducted an ore tenus hearing on the mother’s petition on August 30, 2007, at which, over the objection of the mother, the trial court admitted an itemization of expenses incurred by the father in seeking and obtaining medical treatment for the child. On September 7, 2007, the trial court entered a final judgment denying the mother’s petition and awarding the father $4,282.50 pursuant to the medical-expense provisions of the divorce judgment. Following the denial of her postjudgment motion, the mother timely appealed.

On appeal, the mother argues that the trial court exceeded its discretion in denying her petition; that the trial court failed to apply § 30-3-130 et seq., Ala.Code 1975 (“the Custody and Domestic or Family Abuse Act”), in making its custody determination; and that the trial court erred in allowing the father to present evidence in support of an unpleaded claim for medical expenses and in finding that all of those expenses were recoverable under the divorce judgment.

The Petition for Modification of Custody

After custody has been awarded in a divorce judgment, the noncustodial parent seeking a change of custody must demonstrate (1) “that he or she is a fit custodian”; (2) “that material changes which affect the child’s welfare have occurred”; and (3) “that the positive good brought about by the change in custody will more than offset the disruptive effect of uprooting the child.” Kunkel v. Kunkel, 547 So.2d 555, 560 (Ala.Civ.App.1989) (citing, among other cases, Ex parte McLendon, 455 So.2d 863, 865-66 (Ala.1984) (setting forth three factors a noncustodial parent must demonstrate in order to modify custody)).

The parties do not appear to be in dispute over the mother’s fitness to parent the child. Although it appears that at the time the 2000 divorce judgment was entered the mother was mired in a substance-abuse problem and agreed to give custody of the child to the father because of that problem, the father does not disagree that she has since overcome that problem, remarried, obtained steady employment, given birth to another child whom she is raising with her current husband, and established a suitable home for her children. The father does not express any disagreement with the trial court’s finding that the mother is “a capable and loving parent who would be a suitable custodian for the child.” However, “[i]t is not enough that the parent show that she has remarried, reformed her lifestyle, and improved her financial position.” Ex parte McLendon, 455 So.2d at 866. A noncustodial parent must still prove the other two McLendon factors. Id.

The parties are in dispute as to the second McLendon factor—whether there have been material changes affecting the child’s welfare since the entry of the 2000 divorce judgment. The mother maintains that, since the parties’ divorce, the father has developed an alcohol problem, has cohabited or engaged in sexual relations with a series of women, and has committed acts of domestic violence, all of which the mother says have adversely affected the welfare of the child. The father denies that he has an alcohol problem, denies that he committed any acts of “domestic or family abuse,” as that term is defined under § 30-3-130, Ala.Code 1975, and denies that any of his relationships with women have negatively impacted the child.

In its final judgment, the trial court found that the mother “has failed in her substantial burden to show a material change in circumstances which would justify a change in custody in this case.” In particular, the trial court found that

“[although the father has, on occasion and for extended periods of time, had overnight guests of the opposite sex, there is no evidence that these relationships have affected the child to any degree. It is clear from the evidence that this child almost certainly does not recognize or appreciate the existence of any romantic relationship that might exist between his father and others.”

It has been said in past Alabama custody cases that indiscreet heterosexual conduct of a parent may be considered, but only to the extent that the conduct detrimentally affects the child. See, e.g., Phillips v. Phillips, 622 So.2d 410, 412 (Ala.Civ.App.1993). Whether Alabama continues to adhere to that standard is questionable, see Ex paite 730 So.2d 1190, 1194 (Ala.1998) (indicating that noncustodial parent did not have to prove harm to child caused by custodial parent’s homosexual conduct, but only that change in custody would meet McLendon standard); however, the mother does not question the application of that standard. She argues instead that the evidence does not support the trial court’s findings. We disagree.

At trial, the father admitted that he has been in four long-term relationships since his divorce from the mother. He further admitted that he had engaged in sexual relations with his paramours while the child was in the same house. From February 2005 to December 2005, the father allowed his former fiancée and her two children to reside in the house with him and the child without the benefit of marriage. The former fiancée testified that on one occasion the child had entered the father’s bedroom through a door that had been left inadvertently unlocked and had observed the father and the fiancée while engaged in an intimate act. The father testified that he did not believe the child had actually witnessed any sexual activity as alleged. The guardian ad litem for the child testified that she had surveyed the bedroom and had questioned the former fiancée’s version of the events based on the layout of the room.

The record discloses that the child suffers from autism, which renders him unable to communicate verbally. The father testified at length regarding the effects of the autism on the child’s comprehension abilities. The mother somewhat disagreed with the father’s assessment, but she admitted that the mental ability of the child is impaired. The mother called an expert, who estimated that the child’s autism was in the average range. The father testified that if the child had accidentally witnessed any of the father’s sexual conduct, the child would have been unable to understand what he was observing. Because of the child’s inability to normally process information, the father believed that his relationships and his sexual conduct had had no effect on the child, detrimental or otherwise.

The mother actually testified that during the time the father’s former fiancée and her two children had lived with the father and the child, she had noticed an improvement in the child’s social skills. The mother testified that the child’s behavior seemed to worsen after the fiancée left, but that evidence does not tend to prove in any way that the child was detrimentally affected by the father’s sexual conduct. Other than testifying that she deemed the father’s behavior to be “inappropriate” and that the guardian ad litem preferred that the father not have overnight visits -with persons of the opposite sex, see C.J.L. v. M.W.B., 879 So.2d 1169, 1181 (Ala.Civ.App.2003) (“The cases addressing the use of a guardian ad litem make it clear that a trial court may consider, although it is not bound to follow, a recommendation made by a guardian ad item.”), the mother basically presented no evidence indicating that the child had been harmed by the father’s behavior.

In reviewing findings of fact made by a trial court based on conflicting testimony given in an ore tenus child-custody proceeding, this court may reverse a judgment based on those findings only if they are plainly and palpably wrong. Ex parte H.H., 830 So.2d 21, 25 (Ala.2002). Because we cannot conclude that the trial court’s factual findings regarding the effects on the child of the father’s heterosexual conduct are “plainly and palpably wrong,” we cannot reverse on that ground.

The trial court did not make specific findings of fact regarding the father’s alleged alcohol problem or domestic-violence episodes or their impact on the child. However, the trial court was not required to make any specific findings of fact on those issues. Ex parte Fann, 810 So.2d 631, 638-39 (Ala.2001) (holding that trial court is not required to make specific findings of fact regarding alleged domestic abuse under the Custody and Domestic or Family Abuse Act); Taylor v. Taylor, 387 So.2d 849, 852 (Ala.Civ.App.1980), overruled on other grounds, Ex parte McLendon, supra (trial court has no duty under Rule 52(a), Ala. R. Civ. P., to enter specific findings of fact in denying petition to modify custody). “ ‘[Wjhere a trial court does not make specific findings of fact concerning an issue, this Court will assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly en*oneous.’ ” Ex parte Fann, 810 So.2d at 636 (quoting Lemon v. Golf Terrace Owners Ass’n, 611 So.2d 263, 265 (Ala.1992)).

The only evidence in the record relating to the father’s alcohol consumption consisted of his denial of more than social and moderate drinking and the deposition testimony of the father’s former fiancée, who claimed the father drank alcohol daily and had, on several occasions, driven while under the influence of alcohol, at least twice with the child in the vehicle. The father denied that he had ever driven under the influence and stated that an incident in which he had swerved one time while driving with the child in his truck and another incident in which he had nearly fallen asleep while driving late at night were both unrelated to alcohol use. The father further testified that, during problems in them relationship, his former fian-cée had threatened to “get even” with him and tell the mother that he had an alcohol problem. In fact, after her relationship with the father completely ended in December 2005, the former fiancée telephoned the mother and informed the mother of her perceptions regarding the father’s alcohol intake.

We must presume that the trial court resolved the conflict in the evidence by concluding that the father had not developed an alcohol problem that materially affected the welfare of the child. See Fann, supra. A trial court’s findings of fact in a custody case based on a combination of oral testimony and deposition testimony is afforded a presumption of correctness, and an appellate court cannot disturb those factual findings unless they are clearly erroneous and against the great weight of the evidence. See Friedman v. Friedman, 971 So.2d 23, 28 (Ala.2007). Based on the substantial evidence in the record supporting the trial court’s implied finding of fact on the issue of the father’s alcohol consumption, we find no cause for disturbing the trial court’s judgment on this issue.

The Custody and Domestic or Family Abuse Act provides, in pertinent part:

“In every proceeding where there is at issue a dispute as to the custody of a child, a determination by the court that domestic or family violence has occurred raises a rebuttable presumption by the court that it is in the best interest of the child to reside with the parent who is not a perpetrator of domestic or family violence in the location of that parent’s choice, within or outside the state.”

§ 30-3-133, Ala.Code 1975. The Act further provides:

“In every proceeding where there is at issue a dispute as to the custody of a child, a determination by the court that domestic or family violence has occurred raises a rebuttable presumption by the court that it is detrimental to the child and not in the best interest of the child to be placed in sole custody, joint legal custody, or joint physical custody with the perpetrator of domestic or family violence. Notwithstanding the provisions regarding rebuttable presumption, the judge must also take into account what, if any, impact the domestic violence had on the child.”

§ 30-3-131, Ala.Code 1975. The mother contends that because the evidence shows that the father committed acts of domestic or family violence, the trial court erred in failing to transfer physical custody of the child to her and in maintaining custody with the father.

The father’s former fiancée testified in her deposition that in May 2006, while she was riding home from the hospital with her newborn baby and her other two children in an automobile operated by her mother, the father’s truck rapidly approached the vehicle from behind and forced her mother to take evasive action. The fiancée’s mother also testified by deposition and verified the event and identified the father as the driver of the approaching vehicle. The father testified that he had gone by the former fíancée’s residence that night, but he denied that he had encountered the fiancée or had committed the alleged maneuver. The father also presented evidence indicating that the former fiancée had not mentioned the incident in court pleadings filed shortly after the incident had allegedly occurred.

The father’s former fiancée also testified that on one occasion, when disciplining her teenage son for slamming a door after the boy had reacted “huffily” to a request to take the dog outside, the father had followed the boy outside and had forcefully shoved him in the chest. She also testified that on another occasion, a month or so later, while she and the father were arguing and she was blocking a bathroom doorway, the father had pushed her, causing her to lose her balance and fall over the end of the bed. The guardian ad litem testified that she had been concerned about those allegations but that, after noticing discrepancies between the information she had received from the former fiancée and the former fiancée’s deposition testimony, and after observing the father interact with the child over the course of a long period of time, she felt the allegations had been “somewhat discredited” and she did not believe that the child should be removed from the custody of the father.

Because the trial court did not transfer custody of the child to the mother based on the alleged acts of domestic or family abuse, we must assume that the trial court found either that the alleged acts of domestic or family violence did not occur, or that the acts did not constitute domestic or family violence, or that the father had rebutted the presumption that custody of the child should be placed with the mother by, among other things, proving that the acts of domestic violence had not negatively impacted the child. See McClelland v. McClelland, 841 So.2d 1264, 1268 (Ala.Civ.App.2002). Based on our limited standard of review, see C.M.M. v. S.F., 975 So.2d 975, 980 (Ala.Civ.App.2007), we conclude that the trial court was authorized to make some or all of those findings in relation to each alleged episode of domestic violence. Therefore, we conclude that the trial court did not commit reversible error by failing to transfer custody of the child to the mother under the Custody and Domestic or Family Abuse Act.

Medical Expenses

During the final hearing, the father introduced an itemization of expenses incurred by him in traveling to Baton Rouge, Louisiana, and Orlando, Florida, to obtain special medical treatment for the child, which expenses were not covered by medical insurance. That itemization included $4,800 in transportation, lodging, and food expenses. The mother objected to the introduction of that document and to testimony relating to the document on the ground that the father had failed to plead a claim for those expenses. The father’s attorney replied that the claim had been pleaded. When requested by the court to produce the pleading, the father’s attorney replied that the evidence had been introduced in relation to a contempt petition filed by the father and that, although the claim was not specifically mentioned, the general prayer for relief in the contempt petition adequately notified the mother of the claim. On appeal, the father also points to other motions in which he generally requested any relief to which he was entitled. The trial court allowed the evidence over the mother’s objection.

We agree with the mother that the father did not appropriately plead the issue of the recovery of the expenses. In all the motions and petitions upon which the father relies, he did not once mention he was seeking relief on the basis of the mother’s failure, willful or otherwise, to reimburse him for certain expenses he claimed she owed under the 2000 divorce judgment. However, even though a party has not pleaded a claim prior to trial, a trial court is authorized to treat the pleadings as amended to conform to the evidence under Rule 15(b), Ala. R. Civ. P., if those issues either are tried with the consent of the parties or the trial court determines that “the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice the party in maintaining the party’s action or defense upon the merits.” The issue was obviously not tried with the consent of the parties because the mother objected to the presentation of the claim. Therefore, we review the case to determine whether the trial court exceeded its discretion in allowing evidence of the claim on the second ground contained in Rule 15(b). See generally Kelton v. Kelton, 729 So.2d 870, 872 (Ala.Civ.App.1999) (applying abuse-of-discretion-standard to trial court’s rulings regarding amendment to conform to the evidence).

In hex- appellate brief, the mother argues that she was prejudiced by the trial court’s ruling allowing proof of the father’s claim for medical expenses. The mother asserts that she did not conduct any dis-covexy on the issue and, therefore, did not have a meaningful opportunity to cross-examine the father on the documentation supporting that claim. However, at trial and in her postjudgment motion, the mother did not make any argument that she had been prejudiced in that manner or in any other way. See Scott v. Heard, 497 So.2d 494, 495-96 (Ala.1986) (absent objecting party’s showing of prejudice at trial or in motion for a new trial, trial court did not exceed its discretion in allowing amendment). The plain language of Rule 15 requires the objecting party to “satisfy the coui’t that the admission of [the] evidence would pi'ejudice the party in maintaining the party’s ... defense upon the merits.” Moi’eover, we cannot consider ax-guments l'aised for the first time on appeal. Buford v. Buford, 874 So.2d 562, 567 (Ala.Civ.App.2003). We conclude that the trial court did not exceed its discretion in allowing the father to present his medical-expense claim over the mother’s objection.

In her motion for a new trial, the mother did argue, as she does again on appeal, that the tidal court erred in awarding the father transportation, lodging, and food expenses. The father testified that he considered those costs to be reimbursable under the “medical expenses” provisions of the parties’ divorce judgment. The mother argued that those costs are not recoverable under the “medical expenses” provisions of the divorce judgment. In its final judgment, the trial court found the mother responsible for the expenses “under the current decree.” Unfortunately, we cannot review that ruling because the mother did not include the divorce judgment in the appellate record. We cannot construe a document that is not before us, and, in the absence of that document, we must presume that the trial court correctly interpreted its language to support its judgment. See McCullough v. McCullough, 411 So.2d 807, 808 (Ala.Civ.App.1982).

For the foregoing reasons, we affirm the judgment of the trial court.

The father’s request for the award of an attorney fee on apjieal is granted in the amount of $2,000. The mother’s request for the award of an attorney fee on appeal is denied.

AFFIRMED.

PITTMAN and BRYAN, JJ., concur.

THOMPSON, P.J., and THOMAS, J., concur in the result, without writings.

      . The itemization also included $3,765 for a medical consultation. The trial court ordered the mother to pay one-half of the total of $8,565. The mother does not object to paying for half of the medical visit, but she objects to paying half of the associated transportation, lodging, and food expenses.


author: BOLIN, Justice. MURDOCK, Justice

text:
    Ex parte Lori Jane Ethridge MCCORMICK. (In re Lori Jane Ethridge McCormick v. William Curtis Ethridge).
    1080149.
    Supreme Court of Alabama.
    Feb. 27, 2009.
    Jerry M. Blevins, Montgomery, for petitioner.
    Submitted on petitioner’s brief only.
   BOLIN, Justice.

WRIT DENIED.

COBB, C.J., and LYONS, WOODALL, STUART, SMITH, PARKER, and SHAW, JJ., concur.

MURDOCK, J., dissents.

MURDOCK, Justice

(dissenting).

As indicated in the Court of Civil Appeals’ opinion, to justify a change of custody in a child-custody-modification case, not only must the noncustodial parent seeking the change demonstrate that he or she is a fit custodian, (1) there must have been a material change of circumstances since the previous custodial award and (2) the positive good to be brought about by the proposed change of custody must more than offset whatever disruption will be caused by the change. McCormick v. Ethridge, 1.5 So.3d 524 (Ala.Civ.App.2008). The reason for the first requirement — that there has been a material change of circumstances — is to overcome the res judicata effect of the prior custodial judgment. See Self v. Fugard, 518 So.2d 727, 730 (Ala.Civ.App.1987); Spears v. Wheeler, 877 So.2d 607, 609 n. 1 (Ala.Civ.App.2003). See generally Ex parte J.P., 641 So.2d 276, 278 (Ala.1994). The latter requirement, often referred to as the “material promotion” test of Ex parte McLendon, 455 So.2d 863 (Ala.1984), is a separate requirement. I would grant certiorari review in this case to examine the record and, in the context of that record, to review the holdings of the trial court and the Court of Civil Appeals to determine whether there has been some confusion of these two requirements. It is hard for me to conceive that where, in the words of the Court of Civil Appeals, at the time of the divorce “the mother was mired in a substance-abuse problem and agreed to give custody of the child to the father because of that problem,” but undis-putedly “has since overcome that problem, remarried, obtained steady employment, given birth to another child whom she is raising with her current husband, and established a suitable home for her children,” 15 So.3d at 527, there has not been a material change of circumstance since the divorce. (Whether a change of custody to the mother would satisfy the “material promotion” requirement would then be a separate question.) Even aside from this change of circumstance, which the petition appears not to treat as the basis for concluding that there has been a material change of circumstances, I would like to consider further the arguments made by the mother in her petition as to a change of circumstances, namely that, since the parties’ divorce, the father has developed an alcohol problem, has cohabited with a series of women, and has committed acts of domestic violence against some of the women, or their children, all of which the mother argues have adversely affected the child.

Based on the foregoing, I conclude the petition should be granted; therefore, I respectfully dissent.