author: PER CURIAM.

text:
    Danny BECK v. Nancy Capps BECK.
    2120364.
    Court of Civil Appeals of Alabama.
    Oct. 11, 2013.

      G. John Durward, Jr., of Durward & Cromer, Birmingham, for appellant.
    Traci Owen Vella of Vella, King & Jackson, Birmingham, for appellee.
   PER CURIAM.

Danny Beck (“the husband”) appeals from the judgment of the Jefferson Circuit Court (“the trial court”) divorcing him from Nancy Capps Beck (“the wife”). The divorce judgment, among other things, awarded the wife $200,000 as a property settlement, ordered the husband to pay to the wife periodic alimony in the amount of $2,000 per month, and ordered the husband to pay the wife an attorney fee in the amount of $15,250.

The record indicates the following facts relevant to this appeal. On February 17, 2011, the wife filed in the trial court a complaint seeking a divorce based on incompatibility of temperament. The wife sought, among other things, a division of the parties’ real and personal property, periodic alimony, and alimony in gross. The wife requested that the husband be required to pay her “health insurance costs” and be responsible for the parties’ debts. The wife also sought an attorney fee.

Also on February 17, 2011, along with the complaint for a divorce, the wife filed a motion for a témporary restraining order, requesting, among other things, that the trial court restrain the husband from disposing of or hiding any money or property, including his company’s business assets. The following day, on February 18, 2011, the trial court entered an ex parte temporary restraining order to that effect, but it also permitted the husband to pay for ordinary, customary, and necessary personal and business expenses. On February 28, 2011, the husband answered and denied the material allegations in the wife’s complaint.

On April 14, 2011, the wife filed a motion for, among other things, pendente lite support. On May 26, 2011, the trial court entered a consent order that, among other things, required the husband to pay the wife pendente lite support in the amount of $900 per month. That order further required the husband to pay to the wife an additional amount each month equal to 25% of his net earnings in excess of $3,000 per month. That order also required the husband to maintain the health insurance currently covering the wife.

On July 22, 2011, the wife filed a motion for contempt alleging that the husband had failed to pay pendente lite support as set out in the consent order. On August 22, 2011, the husband filed a motion to modify the consent order alleging that a material change of circumstances had occurred because, he asserted, since the consent order had been entered, he was earning less money, his ability to pay support had been reduced, and his company had become unable to pay the health-insurance premiums and the wife’s health insurance had therefore lapsed. The husband sought termination of his pendente lite support obligation as well as his obligation to maintain health insurance for the wife. On December 5, 2011, the husband filed a motion to withdraw his motion to modify the consent order; that motion was granted on December 6, 2011.

On July 24, 2012, the wife filed a new motion for contempt alleging, among other things, that the husband had failed to pay pendente lite support as set out in the consent order. The wife also alleged that the husband had violated the temporary restraining order by disposing of property and by spending money “in excess of the usual, ordinary, necessary and customary day-to-day spending.” On August 24, 2012, the wife filed another motion for contempt alleging that the husband had canceled, and/or had allowed to lapse, the health insurance he was required to maintain for her under the consent order. On August 24, 2012, the trial court entered an order setting a hearing on the contempt motions for the same date the trial of the divorce action was scheduled.

On August 29, 2012, the trial court held a hearing at which it received ore tenus and documentary evidence. Although that hearing was not transcribed, the trial court later adopted the husband’s Rule 10(d), Ala. R.App. P., statement of the evidence. Based on the Rule 10(d) statement of the evidence and the exhibits that statement reflects were admitted into evidence, the record contains evidence indicating the following facts.

The parties were married in June 1975. At the time of the hearing, they had been married more than 37 years; the wife was 54 years old and the husband was 56 years old. The parties have three grown children.

Since 2011, the husband had been living with his girlfriend (hereinafter referred to as “the paramour”). The husband had had three affairs during the parties’ marriage — the first affair occurred during the 1980s; the second affair occurred during the late 1990s/early 2000s; and the third affair involves the paramour. The wife admitted that she had been aware of each affair at the time it occurred. The husband testified that the parties were not having marital problems at the time he met the paramour. The husband stated that he still loved the wife and that she is “the best person he knows.”

At the time of the hearing, the bank had foreclosed on the parties’ marital home; the wife was living with her parents, and, as noted earlier, the husband was living with the paramour.

The wife testified that she had completed the 10th grade of high school but had not obtained a GED because, she said, the husband “would not let her.” The wife did not work during the parties’ marriage. The husband testified that, toward the end of their marriage, he asked the wife to obtain a job.

At the time of the hearing, the wife was not working but had been “sitting” with her aunt “daily,” apparently to assist her parents in caring for her aunt. The wife’s aunt is in poor health and cannot take care of herself. The wife’s parents do not pay her for assisting with the care of her aunt, but they give her money “if she needs it.” The wife testified that she would like to live on her own, and her proposed monthly expenses totaled $4,507; approximately $1,250 of those expenses were allocated to rent.

The wife testified that, to her knowledge, she and the husband did not own any assets other than furniture and the husband’s business, Ace Masonry, Inc. (“Ace Masonry”). The record contains no evidence of the value of the furniture. The wife admitted she did not know whether Ace Masonry was still in business.

The wife has health problems. In 1989, the wife underwent brain surgery to treat seizures. In 2001, the wife underwent surgery to treat breast cancer. The wife takes medicine every day for her health issues. During the hearing, on cross-examination, the wife answered many of the questions by stating: “I don’t remember” or “I don’t understand the question.” The wife testified that she had applied for, but had been denied, “disability.”

The husband has a GED. He did not attend college. The husband is a brick mason. The husband testified about Ace Masonry, a company he started with his father and his brother, Johnny Beck (“the brother”), more than 20 years ago. The husband stated that the best years for Ace Masonry were around 2000 and that the best year was 2007. The husband explained that Ace Masonry is a subchapter “S” corporation and that his share of profits and losses flows through the corporation to him and is reported on his personal income-tax returns.

The husband testified that around 2000 Ace Masonry’s in-house bookkeeper embezzled money from the company. The husband stated that the bookkeeper was criminally prosecuted for the embezzlement.

The husband explained that, after the embezzlement matter, the brother left the company. According to the husband, the brother left because Ace Masonry owed more than $1,000,000 to the government and vendors. The husband testified that, in 2004, the brother sued Ace Masonry and was awarded a judgment in the amount of $350,000. According to the husband, the brother then claimed that the judgment had not been satisfied, and, in July 2008, a court order was entered appointing David Mackle, a certified public accountant, as the custodian of Ace Masonry.

The husband testified that beginning in July 2008 and continuing thereafter the custodian has been in control of Ace Masonry. Pursuant to the July 2008 court order, all money received or spent by Ace Masonry has to go through the custodian; nothing that belonged to Ace Masonry can be sold or disposed of without the custodian’s consent.

In October 2011, upon motion of the husband, a court order was entered dissolving Ace Masonry; that order found Ace Masonry insolvent with “liabilities greatly exceeding assets.” Pursuant to that order, the custodian was granted authority to wind up the company’s affairs. The husband testified that Ace Masonry had not conducted business after the entry of the dissolution order. A certified copy of the dissolution order was admitted into evidence.

The wife testified about Ace Masonry’s assets. The husband testified about Ace Masonry’s assets and liabilities, and he introduced into evidence a few balance sheets reflecting Ace Masonry’s assets and liabilities. That asset/liability evidence is summarized below:

Date/Year Assets Debts

9/30/2007 $1,169,641.51 $924,676.00

9/30/2008 $1,026,601.75 $978,342.22

2/28/2010 $ 451,146.01 $829,854.66

2/28/2011 $ 274,019.21 $860,724.18

The balance sheets also contained an “Equity” section.

The husband testified that the 2007 assets included $857,516.56 in accounts receivable and that the 2008 assets included $738,603.46 in accounts receivable. The husband stated that he did not know whether the custodian had collected all the accounts receivable. The husband testified that one of Ace Masonry’s main customers had declared bankruptcy. The husband testified that the Internal Revenue Service (“IRS”) and a bank had liens against Ace Masonry.

According to the husband, in 2010 Ace Masonry performed a job at the Birmingham Airport but had not been paid for the job; it was a job for the military. The husband stated that he had contacted a “colonel in Montgomery” seeking his assistance in regaining possession of the equipment used on that job; the husband had not received any money or the return of the equipment. The husband testified that he had contacted the “sheriffs office” about the matter, but, he said, he was told it was a civil matter.

The husband testified that Ace Masonry had owned a building, but he did not know if the building had been foreclosed upon. The husband testified that he did not know whether Ace Masonry still had the assets listed on the balance sheets.

The husband testified that from 2007 through 2009 Ace Masonry paid him $2,000 per week. He stated that since Ace Masonry was a subchapter “S” corporation, $60,000 of the income listed on his tax returns was actually money Ace Masonry was paying to the IRS for back taxes.

The husband testified that he was willing to give the wife all the assets of Ace Masonry as a property settlement. The wife testified that she did not want Ace Masonry or its assets.

Paula Walden, a certified public accountant, testified that she had worked on the Ace Masonry account for approximately six years. Walden stated that the balance sheets were prepared based on information provided by Ace Masonry employees; she stated that she did not reconcile the company’s bank statements. Walden stated that the values of the equipment, machinery, and vehicles on the balance sheets were historical values, not actual values. Walden testified that the IRS and a bank had filed liens against Ace Masonry’s assets. Walden stated that “the balance sheets taken as a whole showed the liabilities outweighed the assets.” Walden testified that, to her knowledge, Ace Masonry was no longer in business.

The husband testified that he still works as a brick mason, but now he works for his son at Beck Masonry. The husband stated that, although he had the ability to run his own company, he could not do so because he had “poor credit.” The husband testified that his income from January 1, 2012, through August 10, 2012, totaled $21,000. According to the husband, he gets paid $1,000 per week if he works a full week, but he stated that he is not paid every week. The husband stated that he is only paid after a job is completed and after the contractor pays Beck Masonry, which may be weeks later. The husband testified that most weeks he does not work a full week because he works outside and cannot work if the weather is bad. The husband stated that business has been slow because of the economy.

The husband testified that of the $1,000 per week, he brings home only about $810 per week after deducting from his weekly wages a tax withholding, an IRS garnishment, and pendente lite support. The husband testified that he gives money to the paramour to help with the house payment and that he buys groceries for the household. The husband stated that he has given money to his children and has paid bills for them.

The husband admitted that he has no proof of the amount of money in his possession. The husband testified that he did not have a checking account and that he cashed all checks because, he said, the “IRS was trying to take his money”; he also said he had not filed tax returns for 2011 but had filed for an extension to file those returns.

The husband is a member of Grayson Valley Country Club and plays golf every weekend. According to the husband, he performs in-kind services in lieu of paying membership dues. The husband admitted that he could work on the weekends to make more money but chose not to do so.

The husband testified about his health problems. The husband stated that he has high blood pressure and skin cancer. The husband testified that he could not afford to go to the doctor or to buy medicine because he does not have health insurance. The husband testified that he no longer has health-insurance coverage for the wife either.

On September 24, 2012, the trial court entered the divorce judgment granting the parties a divorce and ordering the husband to pay to the wife $200,000 as a property settlement and periodic alimony in the amount of $2,000 per month. The trial court further ordered the husband to maintain health insurance for the wife for 36 months. Pursuant to the divorce judgment, the husband was responsible for all federal and state taxes and debts accumulated during the parties’ marriage, all his personal debts, any amounts owed as a result of foreclosure or repossession, and any business debts/expenses associated with Ace Masonry. The trial court also awarded the wife an attorney fee in the amount of $15,250.

In the divorce judgment, the trial court made the following specific findings of fact:

“The Court finds that the parties were married on June 14,1975. The [husband] would not allow the [wife] to finish her high school education and the [wife] never worked during the pendency of this marriage. The [wife] was totally dependent on the [husband]. The [husband,] along with two of his relatives, owned his own business. The Court is not sure that the business was ever dissolved, as no evidence was submitted to that effect. His average income from the business was $218,000 and the company had assets of over one million dollars.
“The [husband] had extra marital affairs, and is currently living with another woman. The [husband] also has a membership at Grayson Valley Country Club and plays golf every weekend. The Court finds that, as a direct result of the [husband’s] failure to abide by the temporary order in this case, the marital home was foreclosed, and the [wife’s] car was repossessed. The [husband] has allowed the [wife’s] health insurance policy to lapse in violation of the previous temporary order of the Court. The [wife] is residing with her elderly parents and her health is not good. She has epilepsy, and had brain surgery and breast cancer.”

The husband filed a timely motion to alter, amend, or vacate the divorce judgment; that motion was denied by the trial court. The husband timely appealed.

“When a trial court receives ore tenus evidence, its judgment based on that evidence is entitled to a presumption of correctness on appeal and will not be reversed absent a showing that the trial court exceeded its discretion or that the judgment is so unsupported by the evidence as to be plainly and palpably wrong. Scholl v. Parsons, 655 So.2d 1060 (Ala.Civ.App.1995). This ‘presumption of correctness is based in part on the trial court’s unique ability to observe the parties and the witnesses and to evaluate their credibility and demean- or.’ Littleton v. Littleton, 741 So.2d 1083, 1085 (Ala.Civ.App.1999). This court is not permitted to reweigh the evidence on appeal and substitute its judgment for that of the trial court. Somers v. McCoy, 777 So.2d 141 (Ala.Civ.App.2000).”

Ryland v. Ryland, 12 So.3d 1223, 1225 (Ala.Civ.App.2009).

In addition, in Whorton v. Bruce, 17 So.3d 661, 664-65 (Ala.Civ.App.2009), we noted:

“ ‘ “[U]nder the ore tenus rule, the trial court’s judgment and all implicit findings necessary to support it carry a presumption of correctness.” Transamerica [Commercial Fin. Corp. v. AmSouth Bank], 608 So.2d [375,] 378 [ (Ala.1992) ]. However, when the trial court improperly applies the law to facts, no presumption of correctness exists as to the trial court’s judgment. Allstate Ins. Co. v. Skelton, 675 So.2d 377 (Ala.1996); Marvin’s, Inc. v. Robertson, 608 So.2d 391 (Ala.1992); Gaston [v. Ames ], 514 So.2d [877,] 878 [ (Ala.1987) ]; Smith v. Style Advertising, Inc., 470 So.2d 1194 (Ala.1985); League v. McDonald, 355 So.2d 695 (Ala.1978). “Questions of law are not subject to the ore tenus standard of review.” Reed v. Board of Trustees for Alabama State Univ., 778 So.2d 791, 793 n. 2 (Ala.2000). A trial court’s conclusions on legal issues carry no presumption of correctness on appeal. Ex parte Cash, 624 So.2d 576, 577 (Ala.1993). This court reviews the application of law to facts de novo. Allstate, 675 So.2d at 379 (“[Wjhere the facts before the trial court are essentially undisputed and the controversy involves questions of law for the court to consider, the [trial] court’s judgment carries no presumption of correctness.”).’
“City of Prattville v. Post, 831 So.2d 622, 627-28 (Ala.Civ.App.2002).”

As to the division of marital property and the award of alimony, this court has stated:

“The issues of property division and alimony are interrelated, and, therefore, they must be considered together on appeal. Albertson v. Albertson, 678 So.2d 118, 120 (Ala.Civ.App.1996). When the trial court fashions a property division following the presentation of ore tenus evidence, its judgment as to that evidence is presumed correct on appeal and will not be reversed absent a showing that the trial court exceeded its discretion or that its decision is plainly and palpably wrong. Roberts v. Roberts, 802 So.2d 230, 235 (Ala.Civ.App.2001); Parrish v. Parrish, 617 So.2d 1036, 1038 (Ala.Civ.App.1993); and Hall v. Mazzone, 486 So.2d 408, 410 (Ala.1986). A property division is required to be equitable, not equal, and a determination of what is equitable rests within the broad discretion of the trial court. Parrish, 617 So.2d at 1038. In fashioning a property division and an award of alimony, the trial court must consider factors such as the earning capacities of the parties; their future prospects; their ages, health, and station in life; the length of the parties’ marriage; and the source, value, and type of marital property. Robinson v. Robinson, 795 So.2d 729, 734 (Ala.Civ.App.2001).”

Stone v. Stone, 26 So.3d 1232, 1236 (Ala.Civ.App.2009). Accord Ryland, 12 So.3d at 1233-34. Another factor the trial court may consider is the conduct of the parties with regard to the breakdown of the marriage. Ex parte Drummond, 785 So.2d 358, 363 (Ala.2000); Pate v. Pate, 849 So.2d 972, 976 (Ala.Civ.App.2002); and Myrick v. Myrick, 714 So.2d 311, 315 (Ala.Civ.App.1998).

As to alimony,

“[a]n award which exceeds a husband’s stated income does not automatically amount to an abuse of discretion by the trial court. Hurd v. Hurd, 397 So.2d 133 (Ala.Civ.App.1980). In making the initial award of alimony ..., the trial court may consider the parties’ ability to earn as opposed to the parties’ actual income. Ebert v. Ebert, 469 So.2d 615 (Ala.Civ.App.1985).”

Lones v. Lones, 542 So.2d 1244, 1246 (Ala.Civ.App.1989). As pointed out by the husband in his brief on appeal, the amount awarded “to one spouse should not ‘cripple’ the other spouse.” Daugherty v. Daugherty, 579 So.2d 1377, 1380 (Ala.Civ.App.1991).

As to the difference between periodic alimony and alimony in gross, in TenEyck v. TenEyck, 885 So.2d 146, 151-52 (Ala.Civ.App.2003), this court stated:

“Our supreme court has explained the difference between periodic alimony and alimony in gross. Hager v. Hager, 293 Ala. 47, 299 So.2d 743 (1974). Alimony in gross is considered ‘compensation for the [recipient spouse’s] inchoate marital rights [and] ... may also represent a division of the fruits of the marriage where liquidation of a couple’s jointly owned assets is not practicable.’ [Hager ], 293 Ala. at 54, 299 So.2d at 749. An alimony-in-gross award ‘must satisfy two requirements, (1) the time of payment and the amount must be certain, and (2) the right to alimony must be vested.’ Cheek v. Cheek, 500 So.2d 17, 18 (Ala.Civ.App.1986). It must also be payable out of the present estate of the paying spouse as it exists at the time of the divorce. [Hager], 293 Ala. at 55, 299 So.2d at 750. In other words, alimony in gross is a form of property settlement. [Hager], 293 Ala. at 54, 299 So.2d at 749....
“Periodic alimony, on the other hand, ‘is an allowance for the future support of the [recipient spouse] payable from the current earnings of the [paying spouse].’ [Hager], 293 Ala. at 55, 299 So.2d at 750. Its purpose ‘is to support the former dependent spouse and enable that spouse, to the extent possible, to maintain the status that the parties had enjoyed during the marriage, until that spouse is self-supporting or maintaining a lifestyle or status similar to the one enjoyed during the marriage.’ O’Neal v. O’Neal, 678 So.2d 161, 164 (Ala.Civ.App.1996) (emphasis added).”

On appeal, the husband first contends that the property settlement awarded to the wife amounts to an award of alimony in gross and that the trial court erred in awarding the wife $200,000 as alimony in gross because, he says, the trial court ignored undisputed evidence indicating that Ace Masonry had been dissolved and thus, he claims, the $200,000 alimony-in-gross award impermissibly exceeds the value of his present estate.

In making that argument, the husband asserts that the trial court’s finding — “The Court is not sure that [Ace Masonry] was ever dissolved, as no evidence was submitted to that effect. [The husband’s] average income from [Ace Masonry] was $218,000 and [Ace Masonry] had assets of over one million dollars.” — is erroneous. We agree.

At the outset, we note that the wife testified that, to her knowledge, she and the husband did not own any assets other than Ace Masonry and furniture. The wife admitted that she did not know whether Ace Masonry was still in business. As pointed out by the husband in his brief on appeal, he introduced into evidence a certified copy of the October 2011 court order dissolving Ace Masonry. The wife presented no evidence to contradict that court order.

The husband also refers this court to the substantial amount of evidence contained in the record regarding Ace Masonry’s financial problems. Although the wife testified about Ace Masonry’s assets during the years 2007, 2008, 2010, and 2011, the husband testified about both the assets and the liabilities of the company during those years. He also introduced into evidence balance sheets reflecting both the assets and the liabilities of the company during those years. The husband correctly points out that, “considering the value of [Ace Masonry’s] assets without considering its liabilities has no more relevance to a property division than trying to divide the equity in a residence by only considering the market value of the residence without the mortgage indebtedness encumbering it.”

The most recent balance sheet for Ace Masonry, dated February 28, 2011, that was offered into evidence, reflects that the liabilities of Ace Masonry exceeded its assets, which included bank and tax liens, by almost $600,000. Ace Masonry had been operated by a custodian appointed by court order since 2008, three years before the wife filed for divorce. The October 2011 dissolution order indicates that, upon motion of the husband, Ace Masonry was dissolved because it was “insolvent, with liabilities far exceeding assets.” At the time of the hearing, the husband said he no longer worked for Ace Masonry but performed masonry work for a business owned by the parties’ son. During the hearing, the wife declined to receive all the assets of Ace Masonry as a property settlement. The foregoing evidence indicated that Ace Masonry was not an ongoing concern and that it had been dissolved because it had a negative value.

The trial court further found that Ace Masonry had assets worth more than $1,000,000; however, the February 28, 2011, balance sheet indicated that Ace Masonry had assets of approximately $275,000. Moreover, the judgment failed to note that that balance sheet indicated that Ace Masonry had liabilities of approximately $860,000 on that same date. The wife presented no evidence to substantiate the value of Ace Masonry that differed from the evidence offered by the husband. Even if the trial court found that the husband’s testimony lacked credibility, the record contains nothing to indicate that Ace Masonry was worth the $1,000,000 the trial court decided it was worth based, apparently, on a consideration of its former assets alone.

The burden of proving the value of marital property rests with both parties. Edwards v. Edwards, 26 So.3d 1254, 1261 (Ala.Civ.App.2009). We are well aware that in some divorce proceedings trial judges frequently suspect that parties have more assets than the parties are willing to acknowledge and that that suspicion is often correct; however, in the present case, if this court were to affirm the $200,000 alimony-in-gross award, we would not be deferring to the trial court’s evaluation of the witnesses and the evidence, as the ore terms rule requires, but would be yielding to speculation.

“Alimony in gross” must be payable out of the present estate of the paying spouse as it exists at the time of the divorce. Lacey v. Lacey, 126 So.3d 1029, 1031 (Ala.Civ.App.2013), cert denied, 126 So.3d 1035 (Ala.2013). In this case, the record does not contain sufficient evidence from which the trial court reasonably could have determined that Ace Masonry had not been dissolved or that it had a value of more than $1,000,000. Thus, the record does not contain sufficient evidence from which the trial court reasonably could have inferred that the husband’s present estate, based on the value of Ace Masonry, contains $200,000, much less a greater amount from which $200,000 could be equitably deducted. Accordingly, we reverse the trial court’s judgment as to this issue and remand the cause for it to reconsider its alimony-in-gross award without regard to the foregoing erroneous findings.

Next, the husband contends that the trial court erred in awarding the wife periodic alimony in the amount of $2,000 per month because, he says, the evidence established that he cannot afford that amount. “[B]ecause property-division and alimony awards are considered to be interrelated, we often reverse both aspects of the trial court’s judgment so that [the trial court] may consider the entire award again upon remand.” Redden v. Redden, 44 So.3d 508, 513 (Ala.Civ.App.2009). Accordingly, because we are reversing the trial court’s judgment with respect to the award of alimony in gross, we also reverse the trial court’s judgment with respect to the award of periodic alimony so that the trial court can consider both the award of alimony in gross and the award of periodic alimony again on remand. See Reddest, supra.

Regarding an award of periodic alimony in this case, we note that the trial court found the wife, who had never worked, to be totally dependent on the husband. The wife’s proposed monthly expenses totaled $4,507.

The only evidence contained in the record regarding the husband’s current income and expenses at the time of the hearing was his own testimony; the husband testified that, at most, he earned $1,000 per week and that he brought home only approximately $310 after deducting a tax withholding, an IRS garnishment, and pendente lite support. Although the husband failed to offer any documentary evidence regarding his present financial condition, the wife also failed to offer any evidence to dispute the husband’s testimony regarding his current income and expenses. The husband testified that he is a member of a country club and plays golf every weekend instead of earning more money.

The husband admitted that he had no proof of the amount of money in his possession. According to the husband, he did not have a checking account; the husband stated that he cashed all his checks because, he said, the “IRS was trying to take his money.” The husband stated that he had not filed tax returns for 2011 but had obtained an extension to file those returns. Although the record contains evidence from which the trial court reasonably could have determined that the husband earned, or had the ability to earn, more money than he said he did, see, e.g., Ryland v. Ryland, 12 So.3d at 1235, as stated earlier, because we are reversing the trial court’s award of alimony in gross, we are also reversing the periodic-alimony award.

Lastly, the husband contends that if this court reverses the award of alimony in gross and/or the periodic-alimony award, it also should reverse the attorney-fee award in the amount of $15,250. “This court reviews an award of an attorney fee on an abuse-of-discretion standard.” Mahaffey v. Mahaffey, 806 So.2d 1286, 1292 (Ala.Civ.App.2001). In determining whether to award an attorney fee and the amount of the fee, the trial court must consider factors such as the earning capacities of the parties, the results of the litigation, the parties’ financial circumstances, and the conduct of the parties. Korn v. Korn, 867 So.2d 338, 346-47 (Ala.Civ.App.2003); Glover v. Glover, 678 So.2d 174, 176 (Ala.Civ.App.1996). In the present case, because we have reversed the trial court’s award of alimony in gross and its periodic-alimony award, and because we have determined that no evidence supports a determination that Ace Masonry had not been dissolved or that it had assets of more than $1,000,000, we reverse the trial court’s award of an attorney fee and remand the cause for it to consider its attorney-fee award without regard to the foregoing findings.

The wife’s request for an attorney fee on appeal is denied.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      . In her July 22, 2011, motion for contempt, and in her motions for contempt filed thereafter, the wife requested an attorney fee.

      . The record contains other exhibits that the Rule 10(d) statement of the evidence does not reflect were admitted into evidence; we consider as evidence only the exhibits that that statement reflects were admitted into evidence. The appellant bears the burden of ensuring that the record contains sufficient evidence to warrant reversal. In re Coleman, 469 So.2d 638, 639 (Ala.Civ.App.1985); Lee v. Lee, 547 So.2d 1188, 1189 (Ala.Civ.App.1989). This court is bound by the evidence contained in the record. King v. Smith, 288 Ala. 215, 217, 259 So.2d 244, 246 (1972).

      . During the pendency of the divorce proceedings, the Lexus automobile the wife had been driving was repossessed. The wife subsequently purchased a truck owned by the husband's business, Ace Masonry, Inc., from David Mackle, who had been appointed custodian of the business. The husband testified that his truck was old and needed repairs, which, according to the husband, he could not afford.

      . As pointed out by the husband in his brief on appeal, the "certificate of divorce” completed by the wife's attorney and filed with the trial court on February 17, 2011 (i.e., the same date the wife filed the divorce complaint), indicates that the wife has a GED.

      . The trial court also ordered the husband to pay a pendente lite support arrearage in the amount of $600.

      . The husband also asserts that the trial court’s finding that the marital home had been foreclosed as a direct result of the husband’s failure to abide by the temporary restraining order was erroneous. In support of that assertion, the husband refers this court to the wife’s exhibit 4; however, the Rule 10(d) statement of the evidence does not indicate that that exhibit was admitted into evidence; therefore, that exhibit is not included as part of the evidence in the record. This court is bound by the evidence contained in the record and cannot consider statements in a brief that are not supported by the evidence in the record. King v. Smith, 288 Ala. 215, 217, 259 So.2d 244, 246 (1972). We note, however, the wife testified, and the evidence indicates, that, at some point, the bank had foreclosed on the marital home.

      . We note that, although the record contains no evidence of the value of the parties’ furniture, the only property-division award at issue on appeal is the $200,000 alimony-in-gross award.

      . We recognize that "[i]t is the duty of the trial court, which had the opportunity to observe the witnesses and their demeanors, and not the appellate court, to make credibility determinations and to weigh the evidence presented.” Ex parte Hayes, 70 So.3d 1211, 1215 (Ala.2011).


source: Caselaw Access Project

author: THOMPSON, Presiding Judge.

license: Public Domain

text:
    Evan J. WOLFE and Kelly M. Wolfe v. JPMORGAN CHASE BANK, N.A., et al.
    2120438.
    Court of Civil Appeals of Alabama.
    Oct. 11, 2013.
    Evan J. Wolfe and Kelly M. Wolfe, pro se.
    Harlan I. Prater IV, David R. Pruet III, and Alysia J. Harris of Lightfoot, Franklin & White, L.L.C., Birmingham, for JPMor-gan Chase Bank, N.A., and Mortgage Electronic Registration Systems, Inc.
    Thomas H. Benton, Jr., of McFadden, Lyon & Rouse, LLC, Mobile, for Edith Pickett, Shapiro & Pickett, LLP, Beth Rouse, and McFadden, Lyon & Rouse, LLC.
   THOMPSON, Presiding Judge.

Evan J. Wolfe and Kelly M. Wolfe defaulted on a mortgage securing a promissory note on their house. JPMorgan Chase Bank, N.A. (“Chase”), a lienholder, was the successful bidder at a February 10, 2010, foreclosure sale of the house. Regions Bank (“Regions”), another lien-holder, redeemed the property from Chase and subsequently filed an ejectment action against the Wolfes in the Mobile Circuit Court (“the trial court”). On March 10, 2011, the trial court entered a summary judgment in favor of Regions and ordered the Wolfes to vacate the property. Evan Wolfe appealed, and this court affirmed the judgment, without an opinion. Wolfe v. Regions Bank (No. 2100707, Sept. 16, 2011), 114 So.3d 877 (Ala.Civ.App.2011) (table). On March 9, 2012, our supreme court denied the Wolfes’ petition for a writ of certiorari. Ex parte Wolfe (No. 1110491), 142 So.3d 1292 (Ala.2012) (table).

On February 10, 2012, while the Wolfes’ petition for a writ of certiorari was pending, the Wolfes, proceeding pro se, filed an action in the trial court against Chase, Mortgage Electronic Registration Systems, Inc. (“MERS”), Edith Pickett, Shapiro & Pickett, L.L.P., Beth Rouse, and McFadden, Lyon & Rouse, L.L.C. In their February 10, 2012, complaint, the Wolfes alleged claims of fraud and wrongful foreclosure, and they sought an award of damages and “full restoration of all property rights.” Edith Pickett, Shapiro & Pickett, Beth Rouse, and McFadden, Lyon & Rouse (“the attorney defendants”) answered and asserted a “counterclaim” seeking an award of an attorney fee pursuant the Alabama Litigation Accountability Act (“ALAA”), § 12-19-270 et seq., Ala. Code 1975. See Plus Int'l, Inc. v. Pace, 689 So.2d 160, 162 (Ala.Civ.App.1996) (The ALAA does not create a cause of action but, rather, is “a tool to be used by the court to sanction parties who bring frivolous litigation.”).

All the defendants moved for a summary judgment. Thereafter, the Wolfes filed an amended complaint. Chase and MERS moved to strike the Wolfes’ amended complaint.

On September 10, 2012, the trial court entered a summary judgment in favor of all the defendants and granted the motion to strike the Wolfes’ amended complaint. In its September 10, 2012, summary judgment, the trial court specifically reserved jurisdiction to consider the request by the attorney defendants for an award of an attorney fee pursuant to the ALAA.

The Wolfes filed a postjudgment motion on October 10, 2012. On October 24, 2012, the attorney defendants filed documents in support of their claim for an attorney fee under the ALAA.

On January 18, 2012, after conducting a hearing, the trial court entered an order denying the attorney defendants’ claim for an attorney fee under the ALAA. Also on January 18, 2012, the trial court entered an order purporting to deny the Wolfes’ October 10, 2012, postjudgment motion. The Wolfes filed a notice of appeal on February 28, 2013, arguing that the trial court had erred in entering the September 10, 2012, summary judgment in favor of the defendants.

On appeal, Chase and MERS have argued that the Wolfes’ appeal is untimely. As is explained below, we agree.

The September 10, 2012, summary judgment adjudicated the parties’ substantive claims, but it did not resolve the attorney defendants’ attorney-fee request. “[A] decision on the merits” of the claims asserted by the parties is a “ ‘final decision’ ” even when “there remains for adjudication a request for attorney’s fees attributable to the case.” Budinich v. Becton Dickin son & Co., 486 U.S. 196, 202-03, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988); see also In re Porto, 645 F.3d 1294, 1299 (11th Cir.2011) (“[T]he Supreme Court has established a bright line rule that the issue of attorney’s fees is always collateral to the merits, and a decision on the merits, even if the attorney’s fees issue remains unresolved, is immediately appealable.... ”); and State Bd. of Educ. v. Waldrop, 840 So.2d 893, 899 (Ala.2002) (“[A] decision on the merits disposing of all claims is a final decision from which an appeal must be timely taken, whether a request for attorney fees remains for adjudication.”).

In Liberty Mutual Insurance Co. v. Greenway Enterprises, Inc., 23 So.3d 52 (Ala.Civ.App.2009), the trial court entered a May 22, 2007, summary judgment on the merits and later entered a December 12, 2007, order resolving Greenway’s request for an attorney fee under the ALAA. Liberty Mutual filed a timely notice of appeal from the December 12, 2007, order awarding an attorney fee but also purported to appeal from the May 27, 2007, summary judgment. This court held that the part of Liberty Mutual’s appeal pertaining to the merits of the May 27, 2007, summary judgment was untimely because it was not filed within 42 days of the summary judgment. See Rule 4(a)(1), Ala. R.App. P. This court explained:

“We cannot address the issues raised by Liberty Mutual regarding the May 22, 2007, summary judgment. That judgment conclusively determined - all the issues before the court and put an end to the proceedings, leaving nothing for further adjudication except Green-way’s request in its answer for the imposition of costs and fees. Rule 58(c), Ala. R. Civ. P., states, in pertinent part, that ‘[t]he entry of the judgment or order shall not be delayed for the taxing of costs.’ Hence, the failure to tax costs did not affect the finality of the summary judgment. Holman v. Bane, 698 So.2d 117, 119 (Ala.1997). Pursuant to caselaw, the failure to award attorney fees also does not render the summary judgment nonfinal. See Gonzalez, LLC v. DiVincenti, 844 So.2d 1196, 1201 (Ala.2002) (holding a summary judgment to be final although motion to assess attorney fees remained pending because award of attorney fees is collateral to judgment).”

23 So.3d at 55. This court dismissed that part of the appeal pertaining to the merits of the May 22, 2007, summary judgment. Id.

Similarly, in this case, the trial court’s September 10, 2012, summary judgment disposed of all the claims on the merits, and, in that summary judgment, the trial court expressly reserved consideration of the attorney defendants’ attorney-fee claim. The September 10, 2012, summary judgment was a final judgment, and to determine the timeliness of an appeal pertaining to the merits of that summary-judgment, we must start with the date of the entry of that judgment. Liberty Mut. Ins. Co. v. Greenway Enters., Inc., supra. The Wolfes filed a timely postjudgment motion on October 10, 2012, thus tolling the 42-day period in which to appeal; that postjudgment motion was denied by operation of law on January 8, 2013, and a notice of appeal was due to be filed within 42 days, i.e., by February 19, 2013. Williamson v. Fourth Ave. Supermarket, Inc., 12 So.3d 1200, 1204 (Ala.2009) (“The 42-day ‘time for filing a notice of appeal shall be computed from the date of denial of such motion by operation of law, as provided for in Rule 59.1.’ Rule 4(a)(1), Ala. R.App. P.”). The Wolfes filed their notice of appeal on February 28, 2013, and raised arguments pertaining only to the merits of the September 10, 2012, summary judgment. That notice of appeal of the September 10, 2012, summary judgment was untimely filed, and, therefore, it did not invoke the jurisdiction of this court. Williamson v. Fourth Ave. Supermarket, Inc., 12 So.3d at 1204; see also Rule 2(a)(1), Ala. R.App. P. (“An appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court.”). Therefore, we dismiss the Wolfes’ appeal.

APPEAL DISMISSED.

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

      . Although only Evan Wolfe was listed on the notice of appeal, the Wolfes, acting pro se, both purported to file a brief in this court.

      . We note that some courts have distinguished Budinich and cases following that decision on the ground that those cases relied on a statute that afforded the right to claim an attorney fee and that, therefore, the attorney-fee request was not a part of the substantive merits of the litigation itself. Those courts have held that when a party alleges a breach of contract in which the contract itself provides for the recovery of an attorney fee, the attorney-fee claim is a substantive issue rather than an award of costs and that, therefore, the judgment on the merits is not final until that substantive attorney-fee issue is resolved. See, e.g., In re Porto, 645 F.3d at 1300 ("We recognize that this Court and others have held that when attorney’s fees are awarded pursuant to a contract or are computed as part of the damages award, an order on the merits does not become final and appealable until the attorney's fees issue is resolved.”); Adeduntan v. Hospital Auth. of Clarke Cnty., 249 Fed.Appx 151 (11th Cir.2007) (not published in Federal Reporter) (same).


text:
    A.T. v. P.A.F. and Jefferson County Department of Human Resources.
    2120720.
    Court of Civil Appeals of Alabama.
    Oct. 18, 2013.

      Melissa L. Doggett, Birmingham, for appellant.
    Michael G. Trucks of Trucks & Trucks, Fairfield, for appellee P.A.F.
    Sharon E. Ficquette, chief legal counsel, and Karen P. Phillips, asst. atty. gen., for appellee Department of Human Resources.
    Julie Marks of Legal Aid Society of Birmingham, guardian ad litem.
   PER CURIAM.

In September 2011, P.A.F. (“the paternal grandmother”) filed petitions seeking to have her two granddaughters (hereinafter “the children”) declared dependent. The record indicates that the children’s father is deceased. In her dependency petitions, the paternal grandmother alleged that A.T. (“the mother”) was abusing illegal substances.

In October 2011, the Jefferson County Department of Human Resources (“DHR”) filed dependency petitions pertaining to the children. Later in October 2011, the Jefferson Juvenile Court (“the juvenile court”) rendered an order awarding custody of the children to the paternal grandmother and her husband, J.F. (hereinafter referred to collectively as “the paternal grandparents”). We note that the juvenile court ruled only in the dependency actions initiated by DHR. The disposition of the paternal grandmother’s dependency petitions is not indicated in the record before this court; however, because the dependency petitions filed by the paternal grandmother sought the same relief as those filed by DHR, we conclude that the final order in the actions initiated by DHR is sufficient to resolve all the pending issues between all the parties and that that order constitutes a judgment sufficiently final to support this appeal.

The children remained in the custody of the paternal grandparents throughout the dependency litigation. The children were determined to be dependent in a September 2012 order.

We note that Rule 58(c), Ala. R. Civ. P., requires that an action of the court be entered in the State Judicial Information System (“SJIS”) in order to be “entered” as an order or judgment. See Rule 58(c) (“Upon rendition of an order or a judgment ..., the clerk shall forthwith enter such order or judgment in the court record. An order or a judgment shall be deeemed ‘entered’ ... as of the actual date of the input of the order or judgment into the State Judicial Information System.”). The juvenile-court clerk failed to enter any of the dependency or review orders rendered by the juvenile court in these matters until June 28, 2013, well after the mother had filed her notice of appeal to this court. Accordingly, in this opinion, we refer to the orders of the juvenile court as having been “rendered” on a certain date, typically the date on which they were date-stamped in the juvenile-court clerk’s office. The juvenile-court clerk’s failure to enter the orders rendered by the juvenile court, in addition to failing to afford the parties the notice of the entry of such orders as contemplated by the Rules of Civil Procedure, also impacts the determination of the timeliness of the mother’s appeal.

The juvenile court rendered an order, date stamped April 23, 2013, in which it continued the award of custody with the paternal grandparents, awarded the mother supervised visitation, relieved DHR of its obligation to provide services in this action, and ordered that the matters be closed. The mother filed a purported postjudgment motion in which she argued that evidence presented at an April 18, 2013, dispositional hearing did not support the order issued on April 23, 2013. The parties contend that the mother’s “post-judgment motion” was denied by operation of law. The order rendered on April 23, 2013, having not been entered in the SJIS, could not support the postjudgment motion. See J.K. v. State Dep’t of Human Res., 103 So.3d 807, 810 (Ala.Civ.App.2012) (An order not entered in the SJIS was not a valid order or judgment.); and SCI Alabama Funeral Servs., Inc. v. Hester, 984 So.2d 1207, 1208 n. 1 (Ala.Civ.App.2007) (“A valid postjudgment motion may only be taken in reference to a final [and valid] judgment.”).

However, the mother’s notice of appeal was timely filed on May 21, 2013. A notice of appeal filed after the announcement of a ruling but before its entry is treated as having been filed on the day of, but immediately following, the entry of the order or judgment from which the appeal is taken. Rule 4(a)(4), Ala. R.App. P. The order rendered on April 23, 2013, was entered in the SJIS on June 28, 2013, and, therefore, this court refers to that order as the “June 28, 2013, judgment.” The mother’s notice of appeal is timely, as it is deemed to have been filed on June 28, 2013, immediately following the juvenile-court clerk’s entry of the June 28, 2013, judgment in the SJIS.

On appeal, the mother argues that the evidence in the record on appeal does not support the juvenile court’s June 28, 2013, judgment closing the cases to further review. The mother contends that the evidence in the record on appeal demonstrates that she was making progress toward reunification and that she should have been afforded additional time to regain custody of her children. In their briefs submitted to this court, both the paternal grandmother and DHR argue that the evidence in the record supports the juvenile court’s June 28, 2013, judgment.

However, the record on appeal contains no evidence. In support of various motions, the parties filed documents such as court reports and drug-screen results. However, none of those documents was admitted into evidence. At the April 18, 2013, dispositional hearing on which the June 28, 2013, judgment is based, the juvenile court stated: “We’re set today for an evidentiary hearing, I guess, final disposition. Do we wish to proceed by argument or by testimony?” The paternal grandparents’ attorney stated that it was his understanding that the parties had agreed to submit the matters by presenting arguments to the juvenile court. Neither DHR nor the mother objected. The parties’ attorneys then proceeded to make certain factual representations to the juvenile court and to make arguments and inferences based on those factual representations. However, none of the parties presented, or offered to present, any evidence to the juvenile court during the April 18, 2013, dispositional hearing.

In Y.N. v. Jefferson County Department of Human Resources, 37 So.3d 836 (Ala.Civ.App.2009), the juvenile court entered orders pertaining to dependent children in which it awarded custody of the children to a cousin and his mother, denied the children’s mother a right to visit the children, and ordered the dependency cases closed. At the hearing on which those orders were based, the parties had made legal arguments to the juvenile court but had presented no ore tenus evidence. This court reversed the orders and remanded the action for the juvenile court to conduct an evidentiary dispositional hearing. Y.N., 37 So.3d at 838.

In reaching its holding, this court stated:

“Dispositional hearings such as the one conducted by the juvenile court are intended to be based on evidence presented to the juvenile court. See [former] § 12-15-65(d), (f), (h), Ala.Code 1975 (specifying that a court shall hear evidence and determine whether the evidence demonstrates beyond a reasonable doubt that the child is dependent and that, in dispositional hearings, ‘all relevant and material evidence ... may be received’). Similarly, it is well settled that, with regard to a parent’s right to visitation with a dependent child, the juvenile court must consider whether the requested visitation is in the best interests of the child. [Former] § 12-15-71(a)(4), Ala.Code 1975; K.B. v. Cleburne County Dep’t of Human Res., 897 So.2d 379, 387-88 (Ala.Civ.App.2004); Floyd v. Alabama Dep’t of Human Res., 550 So.2d 980, 981 (Ala.Civ.App.1988); and Heup v. State Dep’t of Human Res., 522 So.2d 295, 298-99 (Ala.Civ.App. 1988). The allegations of the attorneys in this case, if supported by evidence, might be sufficient to warrant a suspension of the mother’s visitation rights. However, the record on appeal contains no evidence. ‘The unsworn statements, factual assertions, and arguments of counsel are not evidence.’ Ex parte Russell, 911 So.2d 719, 725 (Ala.Civ.App.2005).”

Y.N., 37 So.3d at 838.

In E.W. v. Jefferson County Department of Human Resources, 84 So.3d 966 (Ala.Civ.App.2011), the juvenile court conducted a dispositional hearing at which it received only the arguments of counsel. The juvenile court entered an order closing the case. The child’s father appealed, arguing only that the juvenile court erred in entering its dispositional order without conducting an ore tenus hearing in violation of § 12-15-311, Ala.Code 1975. In that case, DHR argued that the father had not raised the issue before the juvenile court. This court agreed, holding that the father had impermissibly raised the issue for the first time on appeal, and, therefore, this court rejected the father’s argument and affirmed the order. E.W., supra.

In this case, as in Y.N. and E.W., the juvenile court conducted a hearing concerning the disposition of dependent children without receiving any evidence and, instead, based its decision on the arguments of the parties’ counsel. Unlike in Y.N. and E.W., however, in this case the juvenile court stated that the matters were before it for an evidentiary hearing on the issue of the disposition of the children. The parties elected to proceed by presenting only the arguments of counsel to the juvenile court. Unlike the situations in Y.N. and E.W., the mother in this case had the opportunity to present evidence to the juvenile court, but she elected not to do so.

“The law is well settled that a party may not induce an error by the trial court and then attempt to win a reversal based on that error. ‘A party may not predicate an argument for reversal on “invited error,” that is, “error into which he has led or lulled the trial court.’” Atkins v. Lee, 603 So.2d 937, 945 (Ala.1992) (quoting Dixie Highway Express, Inc. v. Southern Ry., 286 Ala. 646, 651, 244 So.2d 591, 595 (1971)). ‘That doctrine [of invited error] provides that a party may not complain of error into which he has led the court.’ Ex parte King, 643 So.2d 1364, 1366 (Ala.1993). ‘A party cannot win a reversal on an error that party has invited the trial court to commit.’ Neal v. Neal, 856 So.2d 766, 784 (Ala.2002).”

Mobile Infirmary Med. Ctr. v. Hodgen, 884 So.2d 801, 808 (Ala.2003); see also A.J.H.T. v. K.O.H., 983 So.2d 394, 396 (Ala.Civ.App.2007) (same).

The mother does not argue on appeal that the juvenile court erred in failing to take ore tenus evidence. Rather, her argument on appeal challenges the sufficiency of the evidence presented to the juvenile court. It is the burden of the mother, as the appellant, to ensure that the record on appeal contains sufficient evidence to warrant a reversal. J.B. v. Cleburne Cnty. Dep’t of Human Res., 992 So.2d 34, 40-41 (Ala.Civ.App.2008); Goree v. Shirley, 765 So.2d 661, 662 (Ala.Civ.App.2000). The record on appeal contains no evidence for this court to review. The arguments and representations of the parties’ attorneys do not constitute evidence. Y.N., 37 So.3d at 838; C.J. v. Marion Cnty. Dep’t of Human Res., 5 So.3d 1259, 1269-70 (Ala.Civ.App.2008). Accordingly, because the mother has failed to demonstrate that the juvenile court erred in reaching its judgment, we affirm.

AFFIRMED.

All the judges concur.

      . Throughout these dependency proceedings, J.F. has been treated as a party to the proceedings, and no other party has objected.


text:
    J.C.T. v. MOBILE COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2120765.
    Court of Civil Appeals of Alabama.
    Oct. 18, 2013.
    Pamela Millsaps, Mobile, for appellant.
    Sharon E. Ficquette, chief legal counsel, and Karen P. Phillips, asst. atty. gen., Department of Human Resources, for ap-pellee.
   THOMPSON, Presiding Judge.

J.C.T. (“the putative father”) purports to appeal from judgments terminating his parental rights to his three children, F.E.D. and twins C.L.D. and A.E.D. (“the twins”) (all three children are hereinafter collectively referred to as “the children”). In the judgments, the parental rights of the children’s mother, L.B. (“the mother”), were also terminated. The mother appealed, and this court affirmed the judgments of the juvenile court without issuing an opinion. See L.B. v. Mobile Cnty. Dep’t of Human Res. (Nos. 2120285, 2120286, and 2120287, Sept. 27, 2013), — So.3d — (Ala.Civ.App.2013) (table).

The record indicates the following. On October 31, 2011, the Mobile County Department of Human Resources (“DHR”) filed a separate petition as to each child, seeking the termination of the parental rights of the mother, the putative father, and any unknown father of the children. In the petitions, DHR alleged that the putative father had failed to provide for the material needs of the children and that he was not able or willing, and would not in the foreseeable future be able or willing, to provide a suitable home for the children or to provide for their support, training, maintenance, or education. DHR further alleged that the whereabouts of the putative father were unknown.

The putative father and any unknown father were served with notice of the actions by publication. On November 17, 2011, the trial court appointed an attorney to represent the putative father at a hearing on the merits of the petitions seeking to terminate parental rights, which had been scheduled for April 20, 2012. After a continuance, the trial on the petitions to terminate the parental rights of the mother and the putative father was held in October 2012. The putative father did not appear at the trial, although his counsel did attend. The judgments terminating the putative father’s parental rights were rendered on December 7, 2012, and entered on the State Judicial Information System (“SJIS”) on December 21, 2012. The putative father did not appeal from the termination judgments.

On April 11, 2013, the putative father filed a motion that he characterized as having been filed pursuant to Rule 60(b), Ala. R. Civ. P., asking the trial court to set aside the judgments terminating his parental rights. As grounds for his motion, the putative father stated that, in the judgments, the trial court had not acknowledged the appearance of the putative father’s attorney at the hearing and that neither he nor his attorney received copies of the judgments. The putative father’s attorney stated in the motion that he had “inquired monthly since the hearing dates about the [judgments] and was not informed until April 9, 2013, that [the judgments] had been entered.” On May 8, 2013, the trial court entered an order denying the putative father’s Rule 60(b) motion, thereby refusing to set aside the termination judgments; however, in its May 8, 2013, order, the juvenile court stated that the time from which the putative father had to appeal from the December 21, 2012, judgments terminating his parental rights began running as of the date of the May 8 order. The putative father filed his notice of appeal of the termination judgments on May 20, 2013.

“[T]he timeliness of an appeal affects this Court’s jurisdiction to consider the appeal.” Moultrie v. Wall, [Ms. 1111507, Sept. 13, 2013] — So.3d —, —(Ala.2013). Although neither the putative father nor DHR has raised the issue of the timeliness of the putative father’s appeal, “jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.” Sleasman v. Sleasman, 907 So.2d 1075, 1076 (Ala.Civ.App.2005). Therefore, we must first consider whether the putative father’s appeal is timely. See Miller Props., LLC v. Green, 958 So.2d 850, 851-52 (Ala.2006) (holding that an untimely filed postjudgment motion does not toll the time for filing a notice of appeal and that this court has no jurisdiction over an untimely filed appeal).

Rule 77(d), Ala. R. Civ. P., provides, in pertinent part:

“Lack of notice of the entry by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except that upon a showing of excusable neglect based on a failure of the party to learn of the entry of the judgment or order the circuit court in any action may extend the time for appeal not exceeding thirty (30) days from the expiration of the original time now provided for appeals in civil actions.”

(Emphasis added.)

The termination judgments in this case were entered in the SJIS on December 21, 2012. Because this is an appeal of judgments of a juvenile court, the putative father had 14 days from that date in which to file his notice of appeal. Rule 1(B)(1), Ala. R. Juv. P. Therefore, the original deadline for filing the notice of appeal would have been Friday, January 4, 2013. Even if we were to assume for purposes of this opinion that the putative father could properly obtain additional time in which to file his notice of appeal because of the clerk’s failure to notify him of the judgments, Rule 77(d) allows a trial court to extend the time to file a notice of appeal only for an additional 30 days after the expiration of the 14-day period. See R.J.N. v. B.D.S., 58 So.3d 1274, 1276 (Ala.Civ.App.2010) (applying the 30-day extension in a juvenile matter). The 30th day after January 4, 2013 — February 3, 2013— was a Sunday; therefore, the putative father would have had until Monday, February 4, 2013, to file his notice of appeal. The trial court was not authorized to extend the time for filing the notice of appeal beyond that date. Corretti v. Pete Wilson Roofing Co., 507 So.2d 408, 409 (Ala.1986); and R.J.N., supra.

Moreover, a Rule 60(b) motion cannot be substituted for the exclusive remedy provided by Rule 77(d) and thereby be used as a method to extend the time within which to appeal. Cockrell v. World’s Finest Chocolate Co., 349 So.2d 1117, 1119 (Ala.1977); see Hayden v. Harris, 437 So.2d 1283,1287 (Ala.1983). In his brief on appeal, the putative father does not assert that the trial court erred in denying his Rule 60(b) motion. Instead, he argues only the propriety of the underlying December 21, 2012, judgments. Specifically, the putative father asserts that DHR failed to use reasonable efforts to rehabilitate him and to reunite him with the children. Any argument the putative father wished to make regarding the correctness of the underlying termination judgments should have been raised in an appeal of those judgments. See Hobbs v. Heisey, 118 So.3d 187, 192 (Ala.Civ.App.2012).

Because the putative father did not file his notice of appeal until May 20, 2013— more than three months after the February 4, 2013, latest possible deadline — his appeal is untimely. An untimely filed notice of appeal results in a lack of appellate jurisdiction, which cannot be waived. Luker v. Carrell, 25 So.3d 1148, 1151 (Ala.Civ.App.2006). Accordingly, the putative father’s appeal is dismissed.

APPEAL DISMISSED.

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

      . When the twins were born, the mother was married to H.C.C. However, paternity tests indicated that H.C.C. was not the twins’ father. It appears that H.C.C. is also not F.E.D.’s father.

      . From the record, it appears that the putative father had not been made aware of any of the prior custody proceedings involving the children, including an August 2009 hearing in which the children were first found to be dependent.


author: PITTMAN, Judge.

text:
    K.D. v. ALABAMA DEPARTMENT OF HUMAN RESOURCES.
    2111103.
    Court of Civil Appeals of Alabama.
    Oct. 25, 2013.
    Austin Burdick, McCalla, for appellant.
    Luther Strange, atty. gen., and Sharon E. Ficquette, gen. counsel, and Joshua J. Lane, asst. atty. gen., Department of Human Resources, for appellee.
    Casandra D. Velarde, Bessemer, guardian ad litem for M.L.D.

      T. David Roper, Bessemer, for amicus curiae T.D., the father, in support of the appellant.
   PITTMAN, Judge.

K.D. (“the grandfather”), the paternal grandfather of M.L.D. (“the child”), a male child born in November 2009, appeals from a judgment of the Jefferson Juvenile Court, Bessemer Division (“the juvenile court”), insofar as it (1) terminated the parental rights of the child’s father, T.D., and (2) denied the grandfather’s claim seeking custody of the child. We dismiss the grandfather’s appeal insofar as he attempts to challenge the termination of T.D.’s parental rights, and we affirm the judgment of the juvenile court insofar as it denied the grandfather’s claim seeking custody.

The day after the child was born, the Jefferson County Department of Human Resources (“the Jefferson County DHR”) petitioned the juvenile court for a determination that the child was dependent. As grounds, the Jefferson County DHR alleged that the parental rights of the child’s mother, R.R. (“the mother”), had previously been terminated with respect to a sibling of the child; that the juvenile court had removed other siblings of the child from the mother’s custody; that it would not be in the best interest of the child to remain in the mother’s custody; and that, the child having been born out of wedlock, the identity of the child’s father was unknown. Following a shelter-care hearing and a trial, the juvenile court, in May 2010, entered a judgment determining that the child was dependent.

In May 2011, the Alabama Department of Human Resources (“the Alabama DHR”) filed a petition seeking to terminate the parental rights of the child’s parents. The petition alleged that the mother was unable to give the child proper care and that her inability to give the child proper care was unlikely to change in the foreseeable future. The petition further alleged that the Alabama DHR believed that T.D. was the biological father of the child, that T.D. was incarcerated due to his being convicted of manslaughter, that T.D. had not communicated with the child or the Alabama DHR, that T.D. had not sought to establish that he was the biological father of the child, that T.D. was unable to give the child proper care, and that T.D.’s inability to give the child proper care was unlikely to change in the foreseeable future. In August 2011, DNA testing confirmed that T.D. was indeed the biological father of the child.

In October 2011, the grandfather, who is T.D.’s father, filed a motion to intervene in order to seek visitation with, and custody of, the child. In November 2011, the juvenile court granted the grandfather’s motion to intervene and granted him supervised visitation with the child for two hours every other week.

Following a bench trial at which it received evidence ore tenus, the juvenile court, in August 2012, entered a judgment that, among other things, terminated TJD.’s and the mother’s parental rights and denied the grandfather’s claim seeking custody. The factual findings of the juvenile court that are pertinent to the grandfather’s claim seeking custody were that the grandfather wanted the child to know T.D. and, consequently, that, if the grandfather were granted custody, he would not prevent T.D. from having contact with the child despite the termination of T.D.’s parental rights; that, if the grandfather were granted custody, he would not prevent the mother from having contact with the child despite the termination of her parental rights; that the grandfather had no emotional bond with the child; that the grandfather would need assistance in caring for the child; and that the grandfather had health problems that would interfere with his caring for the child. No postjudgment motions were filed. The grandfather timely filed a notice of appeal within 14 days after the entry of the judgment; however, neither T.D. nor the mother filed a notice of appeal. The juvenile court certified that the record was adequate for appellate review.

Because the juvenile court received evidence ore tenus, our review is governed by the following principles:

“ ‘The trial court’s judgment in cases where the evidence is heard ore tenus will be affirmed, if, under any reasonable aspect of the testimony, there is credible evidence to support the judgment.’ River Conservancy Co., L.L.C. v. Gulf States Paper Corp., 837 So.2d 801, 806 (Ala.2002). Accord Clark v. Albertville Nursing Home, Inc., 545 So.2d 9, 13 (Ala.1989). ‘In ore tenus proceedings, the trial court is the sole judge of the facts and of the credibility of the witnesses, and it should accept only that testimony which it considers worthy of belief.’ Clemons v. Clemons, 627 So.2d 431, 434 (Ala.Civ.App.1993).
“ ‘ “Appellate courts do not sit in judgment of disputed evidence that was presented ore tenus before the trial court....” ’ Ex parte Roberts, 796 So.2d 349, 351 (Ala.2001) (quoting Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala.1996)). ‘When the evidence in a case is in conflict, the trier of fact has to resolve the conflicts in the testimony, and it is not within the province of the appellate court to reweigh the testimony and substitute its own judgment for that of the trier of fact.’ Delbridge v. Civil Serv. Bd. of Tuscaloosa, 481 So.2d 911, 913 (Ala.Civ.App.1985). ‘[A]n appellate court may not substitute its judgment for that of the trial court. To do so would be to reweigh the evidence, which Alabama law does not allow.’ Ex parte Foley, 864 So.2d 1094, 1099 (Ala.2003) (citations omitted).”

Ex parte R.E.C., 899 So.2d 272, 279 (Ala.2004). “ ‘ “The ore tenus rule is grounded upon the principle that when the trial court hears oral testimony it has an opportunity to evaluate the demeanor and credibility of witnesses.” ’ ” Id. (quoting Ex parte Anonymous, 803 So.2d 542, 546 (Ala.2001), quoting in turn Hall v. Mazzone, 486 So.2d 408, 410 (Ala.1986)).

Most of the grandfather’s brief to this court is devoted to challenging the termination of T.D.’s parental rights. However, this court has held that a relative of a parent does not have standing to challenge the termination of that parent’s parental rights. See, e.g., B.H. v. Marion Cnty. Dep’t of Human Res., 998 So.2d 475, 477-78 (Ala.Civ.App.2008). In B.H., we stated:

“We will first address the maternal great-aunt’s appeal insofar as it attempts to attack the judgment terminating the mother’s parental rights in case number JU-07-13.04. See D.M. v. Walker County Dep’t of Human Res., 919 So.2d 1197, 1205-06 (Ala.Civ.App.2005) (holding that an aunt seeking custody of a dependent child could not assert the rights of the parents, whose rights were terminated, on appeal from the denial of her custody petition); see also State v. Property at 2018 Rainbow Dr., 740 So.2d 1025, 1027 (Ala.1999) (indicating that standing is a jurisdictional prerequisite). ‘Standing ... turns on “whether the party has been injured in fact and whether the injury is to a legally protected right.” ’ Property at 2018 Rainbow Dr., 740 So.2d at 1027 (quoting Romer v. Board of County Comm’rs of the County of Pueblo, 956 P.2d 566, 581 (Colo.1998) (Kourlis, J., dissenting)). The maternal great-aunt lacks standing to appeal from the termination judgment because that judgment did not result in an injury in fact to any of the maternal great-aunt’s legally protected rights. Only the mother’s rights were impacted by the termination judgment, and only she could make the arguments asserted by the maternal great-aunt regarding the termination judgment — i.e., whether the appropriate quantum of evidence established the child’s dependency and whether the juvenile court erred by determining that there existed no viable alternatives to the termination of the mother’s parental rights. DM., 919 So.2d at 1206. We therefore dismiss the maternal great-aunt’s appeal from the termination judgment, and we will not address her arguments regarding that judgment in this opinion. Id.”

998 So.2d at 477-78 (second emphasis added). In the present case, consistent with B.H., we conclude that the termination of T.D.’s parental rights did not result in an injury in fact to any of the grandfather’s legally protected rights and that, therefore, the grandfather does not have standing to challenge the judgment of the juvenile court insofar as it terminated T.D.’s parental rights. Consequently, we will not consider the grandfather’s arguments challenging that aspect of the juvenile court’s judgment. See B.H.

Although most of the grandfather’s brief is devoted to challenging the termination of T.D.’s parental rights, his brief also challenges the juvenile court’s factual findings regarding him, which can be construed as challenging the denial of his claim seeking custody of the child. The grandfather has standing to challenge the denial of his claim seeking custody, see B.H., 998 So.2d at 478 (“The maternal great-aunt does, however, have standing to appeal the denial of her petition for custody... .”), and, therefore, we will consider his challenge to the juvenile court’s findings of fact regarding him.

The grandfather first argues that the evidence does not support the juvenile court’s finding that, if he were granted custody of the child, he would not prevent T.D. and the mother from having contact with the child because, the grandfather says, he testified that, if the juvenile court granted him custody and ordered him not to allow T.D. and the mother to have contact with the child, he would prevent such contact. The grandfather did indeed testify to that effect. However, the grandfather also testified that he wanted T.D. to be a part of the child’s life, that he wanted the child to know T.D., and that the grandfather had known the mother for three or four years. In addition, in a written report evaluating the suitability of the grandfather’s apartment for the child, which was written by a Jefferson County DHR supervisor and caseworker and was introduced into evidence, the Jefferson County DHR supervisor and caseworker reported ■ that the grandfather had told them that “[the grandfather] want[ed the child] to know his mother [and] father ... and not be denied ... this opportunity.” The Jefferson County DHR employees also reported that the grandfather had told them that “once [T.D.] was released from prison ... [the grandfather] would do whatever the court order stated[;] however[,] he does want [T.D.] to have a relationship with [the child].”

Based on the evidence indicating that the grandfather wanted T.D. and the mother to have contact with the child and its observation of the grandfather’s demeanor when he testified, the juvenile court could reasonably have found that the grandfather’s testimony was not credible insofar as he testified that, if he were granted custody and ordered to prevent T.D. and the mother from having contact with the child, he would obey that order. See Ex parte R.E.C., supra. Accordingly, we conclude that the evidence supports that finding of the juvenile court.

The grandfather also argues that the evidence does not support the juvenile court’s finding that he did not have a bond with the child because, he says, (1) he testified that, at his last visit with the child, the child had run up to him, had given him a hug, had called him “granddaddy,” and had asked to go home with the grandfather; and (2) the Jefferson County DHR caseworker who supervised the grandfather’s visits testified that the grandfather had played with the child during those visits and that the grandfather’s interaction with the child during those visits was appropriate. However, the Jefferson County DHR caseworker who supervised the grandfather’s visits also testified that a visit between the grandfather and the child that was scheduled for February 11, 2012, had to be canceled because the child refused to leave the foster parent on that occasion. She also testified that the child was reluctant to leave the foster parent for the visit on February 25, 2012, although the child did eventually leave the foster parent and visit with the grandfather on that occasion. Based upon the evidence before it and its observation of the grandfather’s demeanor when he testified, the juvenile court could reasonably have found that the grandfather’s testimony was not credible insofar as it related to his bond with the child. See Ex parte R.E.C., supra. Therefore, we conclude that the evidence supports the juvenile court’s finding that the grandfather did not have a bond with the child.

Finally, the grandfather argues that the evidence does not support the juvenile court’s findings that he would need assistance in caring for the child and that he has health problems that would interfere with his caring for the child. The grandfather testified that he had suffered a knee injury, that he had suffered a back injury that required surgery, and that he is disabled. The Jefferson County DHR caseworker who supervised the grandfather’s visits with the child testified that she had observed the grandfather walking with a cane and that the child was extremely active. She further testified that, on the one occasion the grandfather’s visit with the child was at a park, the child had run and the grandfather’s wife had run after the child but the grandfather had not. The evidence also established that the grandfather’s wife works from 10:00 a.m. until 7:00 p.m. and that, consequently, there would be substantial periods when she would not be available to assist the grandfather in caring for the child. Although the grandfather testified that, if he were granted custody, he would not put the child in day care for the first three months so that he could bond with the child, he testified that, after the first three months, he would put the child in day care. Accordingly, we conclude that the evidence supports the juvenile court’s findings that the grandfather would need assistance in caring for the child and that he has health problems that would interfere with his car-ipg for the child. Therefore, we affirm the judgment of the juvenile court insofar as it denied the grandfather’s claim seeking custody of the child.

APPEAL DISMISSED IN PART; AFFIRMED.

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

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

      . T.D. has filed what purports to be an ami-cus curiae brief in which he also challenges the termination of his parental rights. However, T.D. does not have standing to make that challenge because he did not timely file a notice of appeal, which is a jurisdictional prerequisite. See Rule 28(C), Ala. R. Juv. P. ("Written notice of appeal shall be filed within 14 days of the date of the entry of order or judgment appealed from, whether the appeal is to an appellate court or to the circuit court for trial de novo.”); and A.J. v. Cullman Cnty. Dep't of Human Res., 112 So.3d 51, 52 (Ala.Civ.App.2012) (" ' "The timely filing of [a] notice of appeal is a jurisdictional act.” ' ” (quoting Kennedy v. Merriman, 963 So.2d 86, 88 (Ala.Civ.App.2007), quoting in turn Rudd v. Rudd, 467 So.2d 964, 965 (Ala.Civ.App.1985))). Therefore, we will not consider the arguments in T.D.’s brief. The Alabama DHR has moved to strike T.D.’s brief on other grounds. We deny that motion as being moot.


text:
    Sharon POWERS v. William P. NIKONCHUK.
    2120300.
    Court of Civil Appeals of Alabama.
    Oct. 25, 2013.
    Tammy Shamsie-McCabe of Shamsie-McCabe Law Firm, PLLC, Madison, for appellant.
    Joan-Marie Dean, Huntsville, for appel-lee.
   PITTMAN, Judge.

Sharon Powers (“the mother”) appeals from an interlocutory judgment entered by the Madison Circuit Court (“the trial court”) in a child-custody proceeding. Because the judgment appealed from is not a final judgment, we dismiss the appeal.

In 2009, William P. Nikonchuk (“the father”) was adjudicated to be the biological father of a child to whom the mother had given birth in 2007, and he agreed that the mother could have primary physical custody of the child and that he would pay child support. However, in December 2010, he filed an emergency petition seeking primary physical custody of the child based on an allegation that the mother had attempted to commit suicide. Following a hearing, the trial court entered a pendente lite order granting the father primary physical custody, granting the mother visitation in accordance with the trial court’s standard visitation schedule, and suspending the father’s payment of child support.

In October 2011, the father filed a petition asking the trial court to hold the mother in contempt based on an allegation that she had violated a provision of the trial court’s standard visitation schedule providing for visitation during fall breaks from school, and the mother filed a petition asking the trial court to hold the father in contempt based on an allegation that he had violated a provision of the trial court’s standard visitation schedule providing for telephone visitation. In November 2011, the trial court held a hearing regarding the father’s contempt petition and, at the conclusion of that hearing, orally announced that it would not hold the mother in contempt; however, the trial court did not enter a written order ruling on the father’s October 2011 contempt petition. The trial court also did not enter a written order ruling on the mother’s October 2011 contempt petition. In March 2012, the mother filed a renewed contempt petition, alleging that the father had continued to violate the provision of the trial court’s standard visitation schedule providing for telephone visitation. In October 2012, the father filed a petition asking the trial court to hold the mother in contempt based on an allegation that the mother had not paid child support pursuant to an oral order of the trial court announced at a hearing on August 17, 2012.

On March 23, May 18, August 17, and October 24, 2012, the trial court received evidence ore tenus concerning whether primary physical custody should be transferred to the father and, if so, the amount of child support the mother should be ordered to pay. During the October 24, 2012, evidentiary hearing, the trial court orally stated that it would defer ruling on the parties’ contempt claims and implied that it would hold a separate evidentiary hearing regarding those claims. However, the record on appeal does not contain any indication that the trial court subsequently held an evidentiary hearing regarding the contempt claims, and it does not contain any written orders ruling on those claims.

In December 2012, the trial court entered a judgment (“the December 2012 judgment”) granting the father primary physical custody; granting the mother visitation; ordering the mother to pay child support in an amount to be calculated by the guardian ad litem based on Rule 32, Ala. R. Jud. Admin., and the evidence; and ordering the guardian ád litem to calculate the amount of any child-support arrearage owed by the mother. The December 2012 judgment did not rule on the parties’ contempt claims — indeed, it did not even mention them or refer to them in any way. The mother filed a motion to alter, amend, or vacate the December 2012 judgment, which the trial court denied in December 2012. The mother then filed a notice of appeal in January 2013.

Because it was apparent upon the face of the December 2012 judgment that it had not fully disposed of either the father’s claim seeking child support with respect to the period subsequent to the entry of the December 2012 judgment or the father’s claim seeking past-due child support, this court reinvested the trial court with jurisdiction to dispose fully of those claims. In April 2013, the trial court entered an order (“the April 2013 order”) amending the December 2012 judgment to dispose fully of those claims by specifying that the amount of the mother’s child-support obligation was $800 per month and that the mother owed unpaid past child support in the amount of $6,542.

However, when this court subsequently reviewed the entire record on appeal, it discovered that the parties had asserted the contempt claims described above, which were not mentioned or referred to in either the December 2012 judgment or the April 2013 order. Although the trial court had orally announced at the November 2011 hearing that it would deny the father’s October 2011 contempt petition, it did not subsequently render and enter a written order ruling on that contempt petition as required by Rule 58, Ala. R. Civ. P. In Baxley, Dillard, Dauphin, McKnight & James v. Burt, 101 So.3d 784, 787 (Ala.Civ.App.2012), this court stated:

“Rule 58(a), Ala. R. Civ. P., provides:
“ ‘A judge may render an order or a judgment: (1) by executing a separate written document, (2) by including the order or judgment in a judicial opinion, (3) by endorsing upon a motion the words “granted,” “denied,” “moot,” or words of similar import, and dating and signing or initialing it, (4) by making or causing to be made a notation in the court records, or (5) by executing and transmitting an electronic document to the electronic-filing system.’
“In Ex parte Chamblee, 899 So.2d 244, 248 (Ala.2004), the supreme court stated:
“ ‘Although Rule 58(a) relates simply to the “rendition” of judgments and orders, whereas Rule 58(c) describes the formalities that must attend the “entry” of a judgment or order, even Rule 58(a) requires, in each instance, a written memorialization by the judge of his or her rendition of the order or judgment in question. Stated otherwise, Rule 58(a) does not allow for an oral rendition of a judgment or order.’
“(Emphasis added.) Although Rule 58(a) has been amended since Chamblee was decided, that rule still does not allow for an oral rendition of a judgment or order.”

Thus, the trial court’s oral announcement at the November 2011 hearing that it was going to deny the father’s October 2011 contempt petition did not effectively dispose of the contempt claim asserted in that contempt petition. Moreover, with respect to the parties’ other contempt claims, the record on appeal does not contain even oral rulings much less written rulings rendered and entered in accordance with Rule 58. Consequently, the trial court has not disposed of those contempt claims either.

In Burkhalter v. Burkhalter, 98 So.3d 554, 555 (Ala.Civ.App.2012), this court stated:

“ ‘This court has appellate jurisdiction over appeals from judgments that are final. § 12-22-2, Ala.Code 1975.’ Perry v. Perry, 92 So.3d 799, 800 (Ala.Civ.App.2012). ‘ “[T]he question whether a judgment is final is a jurisdictional question.” Johnson v. Johnson, 835 So.2d 1032, 1034 (Ala.Civ.App.2002). “A final judgment is one that disposes of all the claims and controversies between the parties.” Heaston v. Nabors, 889 So.2d 588, 590 (Ala.Civ.App.2004).’ Decker v. Decker, 984 So.2d 1216, 1219 (Ala.Civ.App.2007).
“It is well settled that ‘a trial court’s failure to rule on a contempt motion relating to an interlocutory order would render any subsequent judgment nonfi-nal because the filing of the contempt motion would not be considered as having initiated a separate proceeding.’ Decker v. Decker, 984 So.2d at 1220; see Perry, 92 So.3d at 800 (dismissing the wife’s appeal as being from a nonfinal judgment because the trial court had failed to rule on the wife’s contempt motion regarding the husband’s failure to abide by the trial court’s status quo order); Logan v. Logan, 40 So.3d 721, 723 (Ala.Civ.App.2009) (same).”

Accordingly, in the present case, we conclude that, because the trial court has not disposed of the parties’ contempt claims, the judgment appealed from is not a final judgment. See Burkhalter. Therefore, we dismiss the mother’s appeal. Id.

APPEAL DISMISSED.

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


author: MOORE, Judge.

text:
    S.B. v. LAUDERDALE COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2120667 and 2120668.
    Court of Civil Appeals of Alabama.
    Oct. 25, 2013.

      Daryl W. Moon, Florence, for appellant.
    Sharon E. Ficquette, chief legal counsel, and Karen P. Phillips, asst. atty. gen., Department of Human Resources, for ap-pellee.
   MOORE, Judge.

S.B. (“the mother”) appeals from separate judgments of the Lauderdale Juvenile Court (“the juvenile court”) approving a permanency plan of adoption for A.M.D. and A.J.D. (hereinafter sometimes referred to collectively as “the children”).

Procedural History

On June 28, 2010 the Lauderdale County Department of Human Resources (“DHR”) filed petitions alleging that the children were dependent and requesting a pick-up order. Pick-up orders were entered that same day. On October 4, 2010, the juvenile court entered orders finding the children dependent and awarding custody of the children to DHR. The juvenile court found that the mother had placed the children in harm’s way by becoming involved in a physical altercation during which she had allegedly stabbed someone, that the mother had been arrested as a result of that incident, and that the mother had admitted that she had been drinking alcohol when the incident occurred and that the children had been with her. On December 20, 2010, June 17, 2011, December 16, 2011, and June 26, 2012, the juvenile court entered orders approving the plan for the children as “return to parent.” At some point thereafter, the children’s guardian ad litem filed a petition to terminate the parental rights of the mother. On December 14, 2012, the juvenile court entered a separate judgment relating to each child providing, in pertinent part: “[T]he [cjourt finds that reasonable efforts toward reunification have been made, and [that] the most appropriate plan is [adoption by [c]urrent [fjoster [p]arent[s].”

On February 21, 2013, the children’s guardian ad litem filed a motion seeking to prevent DHR from placing the children with their current foster parents due to concerns regarding their alleged favoritism toward the younger child, A.J.D., and possible illegal drug use. DHR filed an objection to the guardian ad litem’s motion. On March 1, 2018, the mother filed a motion requesting a permanency hearing in order for the juvenile court to reconsider whether the permanency plan should remain adoption by the current foster parents and to require DHR to present evidence of the reasonable efforts it had made to reunite the mother with the children since the guardian ad litem had filed his petition to terminate the mother’s parental rights. On April 19, 2013, the juvenile court conducted a hearing during which the guardian ad litem stated that he was satisfied that any problems with the current foster parents had been rectified and withdrew his objection to their being awarded custody. At that hearing, the juvenile court received testimony relating to the mother’s March 1, 2013, motion. On April 23, 2013, the juvenile court entered judgments regarding the children in which it found that DHR had made reasonable efforts to reunite the children with their family, that it was not possible or appropriate to return the children to the mother’s home, that adoption was an appropriate permanency plan, and that DHR had made reasonable efforts to finalize the permanency plan of adoption. The mother appealed the judgments on May 6, 2013.

Discussion

On appeal, the mother first argues that the juvenile court erred in its April 23, 2013, judgments by not changing the permanency plan back to “return to parent.” DHR counters that the mother has filed an untimely appeal, pointing out that “[a] parent aggrieved by the decision to change the permanency plan from family reunification to adoption by an unidentified resource with a termination of parental rights can appeal that judgment to this court,” T.L.S. v. Lauderdale Cnty. Dep’t of Human Res., 119 So.3d 431, 437 (Ala.Civ.App.2013), and that an appeal from such a judgment must be filed within 14 days of the entry of the judgment determining the permanency plan of adoption, see Rule 28(C), Ala. R. Juv. P. DHR maintains that, because the mother did not file her notice of appeal until May 6, 2013, she cannot now complain about the juvenile court’s determination that adoption by the current foster parents best served the permanency interests of the children. Although we agree with those general propositions of law, we find them inapplicable to the present case.

The mother is not arguing that the juvenile court erred in changing the plan from parental reunification to adoption by the current foster parents, which occurred as a result of the December 14, 2012, judgments. Rather, she is arguing that the juvenile court erred in failing to modify the permanency plan a second time, back to reunification with her. Section 12-15-315(a), Ala.Code 1975, a part of the Alabama Juvenile Justice Act of 2008 (“the AJJA”), § 12-15-101 et seq., Ala.Code 1975, requires juvenile courts to hold permanency hearings at least annually in cases in which a child is removed from the home and placed in out-of-home care. At those hearings, the juvenile court must determine the most appropriate permanent custodial arrangement that serves the best interests of the child, which may include returning the child to the parental home, § 12-15-315(a)(1), Ala.Code 1975, adoption by the current foster parents, § 12-15-315(a)(2), Ala.Code 1975, or other arrangements, § 12-15-315(a)(2) through (6), Ala.Code 1975. A juvenile court that has adopted a permanency plan may, after a later permanency hearing, modify that plan to change the custodial goal for the child. See A.D.B.H. v. Houston Cnty. Dep’t of Human Res., 1 So.3d 53, 70 (Ala.Civ.App.2008) (Moore, J., concurring in part and concurring in the result). The mother complains that the juvenile court erred in failing to modify the permanency plan from adoption when it entered its April 23, 2013, judgments. Hence, her notices of appeal, filed within 14 days of the entry of those judgments, are not untimely.

Neither § 12-15-315, nor any other part of the AJJA, establishes the standards by which a juvenile court must consider the modification of a permanency plan. Given that this court has held that a judgment changing a permanency plan from family reunification to adoption is sufficiently final to support an appeal, T.L.S., supra, it follows that the doctrine of res judicata would apply to make that judgment conclusive between the parties. See generally Tillman v. Walters, 214 Ala. 71, 108 So. 62 (1925) (order pertaining to child’s custody is conclusive so long as facts upon which it is predicated remain unchanged). However, long-standing Alabama law holds that “[n]o proceeding concerning the custody of a minor can become, under our rule, a matter of res judicata,” Murphree v. Hanson, 197 Ala. 246, 253-54, 72 So. 437, 440 (1916), and that judgments affecting the custody of children “are not res judicata as to facts and conditions subsequently arising, and do not preclude the courts of the state in which they are rendered from further inquiry into the subject as between the same parties.” Calkins v. Calkins, 217 Ala. 378, 380, 115 So. 866, 868 (1928). A child-custody judgment can always be modified when material facts unknown at the time of the prior custody judgment impact the welfare of the child. Cochran v. Cochran, 5 So.3d 1220, 1226 (Ala.2008). Those general principles of law, when applied in the present context, would allow for the modification of the previously determined permanency plan due to a material change of circumstances affecting the welfare of the children. A.D.B.H., 1 So.3d at 70 (Moore, J., concurring in part and concurring in the result).

In her brief to this court, the mother points out her many salutary achievements since the children were removed from her home. Many of those achievements occurred before the entry of the December 14, 2012, judgments, and the juvenile court presumably considered those achievements when it entered those judgments. Even assuming that the mother had made some steps toward rehabilitation since December 14, 2012, the juvenile court was not required to modify its prior judgments, even if circumstances had changed, unless the evidence was so clear and convincing that to fail to do so would clearly exceed the juvenile court’s discretion. See generally Jenkins v. Jenkins, 395 So.2d 1045 (Ala.Civ.App.1981) (discussing a petition to modify physical custody of a child). The mother ignores the countervailing evidence before the juvenile court that she had not benefitted from the programs she had attended, that she had failed to consistently visit the children despite her proximity to them, and that she had not regularly provided for the children’s material support despite her employment. In consideration of that evidence, along with the other evidence tending to refute any contention that the foster parents had become unfit to adopt the children, the juvenile court could have reasonably concluded that adoption by the current foster parents continued to be the most appropriate permanent custodial arrangement for the children and that reuniting the children with the mother would not serve the children’s best interests.

The mother next argues that DHR failed to make reasonable efforts to reunite her with the children during the period when the permanency plan was still “return to parent.” This court has recognized that the reasonableness of DHR’s efforts toward rehabilitation of a parent and reunification of the family are issues intended to be decided in a permanency hearing. D.P. v. Limestone Cnty. Dep’t of Human Res., 28 So.3d 759, 763 (Ala.Civ.App.2009). The juvenile court expressly decided in its December 14, 2012, permanency judgments that reasonable efforts had been made to reunite the mother with the children before that date. Those judgments effectively determined that DHR had made sufficient reasonable efforts during the time when the permanency plan called for family reunification. “On appeal from one judgment, an appellate court cannot consider arguments relating to errors committed in a previously entered final judgment from which no appeal was taken.” N.T. v. P.G., 54 So.3d 918, 921 (Ala.Civ.App.2010). Thus, this court cannot consider in these appeals whether the juvenile court erred in finding that DHR had used reasonable efforts to reunite the mother with her children before December 14, 2012.

The juvenile court’s April 23, 2013, judgments are due to be affirmed.

2120667 — AFFIRMED.

2120668 — AFFIRMED.

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

      . The record on appeal does not contain a transcript of any of the previous permanency hearings, but it does contain reports to the juvenile court outlining the mother’s efforts at rehabilitation.

      . We make no comment on whether the evidence would be sufficient to terminate the mother's parental rights because that issue is not before us.