author: DONALDSON, Judge.

text:
    Jeremy MCRAE v. SECOND MILE DEVELOPMENT, INC.
    2111122.
    Court of Civil Appeals of Alabama.
    Aug. 2, 2013.

      Joseph M. Cloud, Huntsville, for appellant.
    Sean C. Pierce, Joseph H. Driver, and Sara Beth DeLisle of Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C., Birmingham, for appellee.
   DONALDSON, Judge.

Jeremy McRae appeals from a judgment of the Madison Circuit Court in favor of Second Mile Development, Inc. (“Second Mile”), barring McRae from receiving temporary and permanent disability compensation under the Alabama Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975 (“the Act”), for an April 2009 work-related injury and denying McRae any worker’s compensation for a subsequent intervening injury. We affirm the judgment in part, reverse it in part, and remand the cause with instructions.

Facts & Procedural History

The evidence presented below reveals the following facts. McRae began working for Second Mile in February 2009. Second Mile is a charitable organization operating in Madison County, Alabama that provides various services to the community. Jamie Bush, a division director with Second Mile, recommended McRae, her cousin, for a position with Second Mile. McRae primarily worked in Second Mile’s warehouse and performed tasks that included bailing donated clothing, operating a forklift, accepting donations, testing donated electronics, and occasionally assisting with offsite-do-nation pickups.

On April 28, 2009, McRae was assisting with a donation pickup. After picking up the donation, he was returning to the Second Mile warehouse on his personal motorcycle and following the Second Mile truck when he was struck by another vehicle at an intersection. As a result of the collision, McRae suffered significant injuries, including an open, compound fracture to the left leg above the ankle, a broken collarbone, cuts to his fingers, and a broken cheek bone. The most serious injury, the injury at issue in this case, was the compound fracture of the tibia and fibula of the left leg and the open wound created by the fracture. On the day of the accident, Dr. Michael Miller, McRae’s treating physician for the injury, performed surgery on McRae’s left leg. Surgery included irrigation and debridement of the wound and placement of an intramedullary nail (“IM nail”) to stabilize the broken bones. McRae continued postoperative treatment with Dr. Miller. Dr. Miller noted on May 13, 2009, that the leg was healing.

McRae’s recovery suffered a set back in June 2009 when the open wound developed drainage and breakdown. A “wound vac” was inserted to clear the drainage, and an intravenous “Hickman” catheter was inserted into McRae’s chest to administer antibiotics to fight a staph infection that had developed. The Hickman catheter and the wound vac were removed in late July 2009.

McRae returned to work with Second Mile on July 27, 2009, performing light-duty work, such as stuffing donation envelopes, putting together school-supply kits for children for the upcoming school year, and testing donated electronic equipment. McRae testified that a month and a half after returning to work he began performing other duties such as bailing clothes and unloading trucks. Testimony indicates that Dr. Miller released McRae for regular duty beginning on August 6, 2009.

In the months following his return to work at Second Mile, McRae was embroiled in an incident with a female coworker involving the exchange of inappropriate text messages that were sexual in nature. He and the female coworker, as well as other employees involved in the incident, were admonished for violating Second Mile’s sexual-harassment policy.

Testimony indicates that in November 2009 McRae’s recovery from the injury was again hampered, this time due to indications of a suspected infection that had developed in McRae’s left leg. The record reveals that on November 5, 2009, Dr. Miller surgically removed the IM nail from the leg and implanted antibiotic beads to combat the suspected infection. In his deposition testimony, Dr. Miller indicated that he felt that the fracture had healed to the point where the IM nail could be removed and the antibiotic beads could be implanted. McRae testified that he believed he refractured his left leg when stepping out of a truck two wéeks after the November 5, 2009, surgery; however, there is no medical evidence in the record to support McRae’s contention that he re-fractured his leg.

The record shows that on February 8, 2010, Dr. Miller, upon noting that there was no evidence of an infection, removed the antibiotic beads and implanted another IM nail. Dr. Miller’s medical records indicate that McRae’s leg exhibited no sign of infection during this surgery. Dr. Miller’s notes relating to McRae’s postoperative evaluation occurring two weeks following the surgery indicate that the wound was healing and that the fracture had “bridged at least on three sides and well aligned.”

According to Dr. Miller’s records, McRae had an office visit with Dr. Miller on May 24, 2010. Dr. Miller noted that McRae “seem[ed] to be doing pretty well generally.” Dr. Miller’s records relating to that visit further state that McRae’s “wound itself ha[d] healed in nicely and the surrounding soft tissues [looked] good.” Dr. Miller indicated that McRae had complained about his left foot going numb and that he had referred McRae to Dr. Brian Carter, Dr. Miller’s partner, to investigate the source of a nerve problem that might be causing the numbness. In the May 24 report, Dr. Miller ultimately recommended that McRae begin a work-hardening program “to see if we can normalize his work function a little more.” Dr. Miller also stated in the report that McRae was ready for a functional-capacity evaluation (“FCE”) and an impairment rating. The record indicates that Dr. Miller released McRae to return to work at modified duty as of May 24, 2010. Dr. Miller did not make a specific determination that McRae had reached maximum medical improvement (“MMI”) at that time. At trial, McRae admitted that, despite the recommendations from Dr. Miller, he did not attend a work-hardening program and that he did not obtain an FCE at that time. McRae did under go nerve testing for the foot numbness with Dr. Carter, and Dr. Carter’s medical records indicate that the testing showed normal results.

Upon receiving notification of Dr. Miller’s release of McRae for modified work duty, Bush undertook efforts to contact McRae regarding his return to work. Bush stated that she exchanged text messages with McRae on or around June 1, 2010, in which McRae indicated that he would be able to return to work only if he could have “a hundred percent” assurance that he would not be around the coworker with whom he had previously exchanged inappropriate text messages. Bush testified as follows regarding her response sent via text message:

“And I said, ‘I can make you guys as far apart as possible, but I just can’t guarantee that you will never cross paths.’ I said, ‘I do understand, but since the document released you, I will need a letter of resignation. I hate this.’ Jeremy says, ‘Oh, I truly understand. We’ll get [my wife] to write me one up since I don’t have a computer.’ ”

She further testified that she would have accommodated Dr. Miller’s restrictions if McRae had returned to work. Testimony indicates that McRae started a lawn-care business in June 2010 and that he promoted his business with yard signs. McRae, however, contended at trial that he cut only six yards, that he was physically unable to perform the work, and that he did not consider the lawn work to be employment. Medical records indicate that McRae was working as a landscaper as late as August 4, 2010. Additionally, Bush had e-mailed McRae’s wife in June 2010 to see when McRae could return to work. McRae’s wife’s e-mail replies indicated that McRae would not be able to return to work due to several reasons, including: (1) the concern regarding working in close proximity to the coworker with whom he had previously exchanged inappropriate text messages; (2) that McRae did not want to perform office work and that he was not able to perform warehouse work; and (3) that McRae had started a lawn-care business to which he wanted to devote his time. Bush testified that, because of the substance of the communications she received from McRae and his wife, because McRae had started a lawn-care business, and because McRae had not affirmatively responded to the offer to return, she had assumed McRae had abandoned his job; thus, she stated that she formally terminated McRae’s employment with Second Mile on August 9, 2010.

On August 28, 2010, McRae again injured his left leg. McRae initially sought treatment with his personal physician on September 1, 2010, whose records indicate that the scar on McRae’s left leg had “bust open” after McRae stepped into a hole and twisted his leg. An X-ray report for that visit notes that the IM nail was still intact. McRae saw Dr. Miller on September 13, 2010, but Dr. Miller testified in his deposition that McRae did not inform him of the August accident. Dr. Miller noted that the area surrounding the wound had suffered some skin breakdown but that X-rays of the bone “showe[ed] excellent healing of the fracture.” Following a subsequent visit on September 23, 2010, Dr. Miller recommended removal of the IM nail and the implantation of antibiotic beads to combat a suspected infection. The injury required two additional surgeries.

In reports documenting office visits during November and December 2010, Dr. Miller noted that McRae’s wound was closed and looked excellent. On January 3, 2011, however, McRae returned complaining of pain. Dr. Miller noted that the fracture had healed and that the bone was strong enough to support McRae’s full body weight, that the skin over the wound had healed, and that an MRI and nerve test indicated that everything was normal. Dr. Miller testified that McRae had reached MMI as of the January 3, 2011, evaluation, but he referred McRae to Dr. Norman McCoomer for further treatment and pain management relating to pain McRae was experiencing in his left leg and his back. Dr. McCoomer diagnosed McRae with chronic pain, complex regional pain syndrome, pain in the limb, and depression. In his deposition testimony, Dr. McCoomer testified that McRae’s back pain was caused by an biomechanical change in McRae’s gait, due to the pain he experienced in the left leg, that forced him to “change [his] body weight” and “resulted in more stress being placed in [McRae’s] opposite leg, as well as the lower back.” He also testified that McRae had not reached MMI. Dr. McCoomer testified that he referred McRae to Alabama Therapeutic Center for an FCE, which was conducted on July 29, 2011. McRae was also treated by Dr. Keith Anderson, who testified that it was his opinion that McRae suffered from chronic pain in the left lower extremity of his leg due to his injury and the multiple surgeries, “as well as weakness in the muscles of the left leg from his injury.” Dr. Anderson stated, however, that McRae did not exhibit signs of complex regional pain syndrome. Dr. Miller recommended a course of treatment for McRae’s leg pain that required using a spinal-cord stimulator, and Dr. Anderson recommended at least a trial run of that treatment.

McRae sued Second Mile in the Madison Circuit Court on April 30, 2010, seeking benefits under the Act. In December 2011, Second Mile filed a motion to bifurcate the trial to first resolve the dispute as to the compensability of McRae’s injuries, followed by a trial concerning McRae’s disability. The trial court granted the motion, and the issue of compensability was tried in an ore tenus proceeding on March 29 and March 30, 2012. The trial court entered a judgment on May 1, 2012. The trial court found that McRae had reached MMI on May 24, 2010. The trial court also determined that McRae had unreasonably refused Second Mile’s offer of suitable employment and, thus, was barred from receiving temporary or permanent disability compensation under § 25-5-57(a)(3)e, Ala.Code 1975. The trial court further determined that McRae’s August 28, 2010, injury was a subsequent intervening injury and, thus, precluded McRae from receiving any workers’ compensation benefits from August 28, 2010, forward. McRae filed a motion to alter, amend, or vacate or, in the alternative, for new trial, which the trial court denied on July 8, 2012. McRae filed a timely notice of appeal to this court.

On appeal, McRae contends that the trial court erred (1) by placing the burden of proof concerning Second Mile’s defenses on McRae; (2) by determining that McRae’s August 28, 2010, injury was a subsequent intervening injury unrelated to his April 2009 work-related injury and, thus, was not compensable; (3) by finding that substantial evidence supported the conclusion that McRae reached MMI on May 24, 2010; and (4) by denying McRae any compensation under the penalty provisions of § 25-5-57(a)(3)e, Ala.Code 1975, for unreasonably refusing a suitable offer of employment.

Standard of Review

“The standard of appellate review in workers’ compensation cases is governed by § 25-5-81(e), Ala.Code 1975, which provides:
“ ‘(1) In reviewing the standard of proof set forth herein and other legal issues, review by the Court of Civil Appeals shall be without a presumption of correctness.
“ ‘(2) In reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence.’
“Substantial evidence is ‘ “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” ’ Ex parte Trinity Indus., Inc., 680 So.2d 262, 268 (Ala.1996) (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)). Additionally, a trial court’s findings of fact on conflicting evidence are conclusive if they are supported by substantial evidence. Edwards v. Jesse Stutts, Inc., 655 So.2d 1012 (Ala.Civ.App.1995). ‘This court’s role is not to reweigh the evidence, but to affirm the judgment of the trial court if its findings are supported by substantial evidence and, if so, if the correct legal conclusions are drawn therefrom.’ Bostrom Seating, Inc. v. Adderhold, 852 So.2d 784, 794 (Ala.Civ.App.2002).”

Denmark v. Industrial Mfg. Specialists, Inc., 98 So.3d 541, 543-44 (Ala.Civ.App.2012).

Discussion

McRae first contends that the trial court erred in assigning the burden of proof to him instead of Second Mile with regard to Second Mile’s defenses. The employee generally has the burden of proof to establish a right to workers’ compensation benefits under the Act. See Safeco Ins. Cos. v. Blackmon, 851 So.2d 532 (Ala.Civ.App.2002). The employer has the burden of proving any affirmative defenses or any issue that may reduce a workers’ compensation award. See 2 Terry A. Moore, Alabama Workers’ Compensation § 25:4 at 615 (1998)(“[T]he employer bears the burden of proof on any issue that may reduce its compensation outlay such as: the unreasonable refusal of the employee to accept suitable employment or to submit to medical treatment or vocational rehabilitation -”).

McRae makes a general reference to the trial court’s judgment in support of this argument. Second Mile does not address this argument. Although the trial court’s judgment does not specifically state that Second Mile bore the burden of proof as to any affirmative defense, there is no indication before us that the trial court improperly applied the burdens of proof. Further, it does not appear that McRae raised this issue with the trial court in his post-judgment motion. “This court will not address arguments made for the first time on appeal.” Cascaden v. Winn-Dixie Montgomery, LLC, 81 So.3d 1273, 1278 (Ala.Civ.App.2011), cert. denied, 81 So.3d 1278 (Ala.2011) (citing Andrews v. Merritt Oil Co., 612 So.2d 409, 410. (Ala.1992)).

McRae next contends that the trial court erred in concluding that McRae’s August 28, 2010 injury was not compensa-ble under the Act. Additionally, McRae contends that the injury to his left leg caused an altered gait that consequently contributed to the onset of back pain. As both parties concede in their briefs, the successive-compensable-injury test outlined by our supreme court in Ex parte Pike County Commission, 740 So.2d 1080, 1084 (Ala.1999), is applicable to this case:

“When determining whether a successive injury is compensable, the general rule is that ‘[wjhen the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury likewise arises out of the employment, unless it is the result of an independent intervening cause attributable to [the] claimant’s own intentional conduct.’ 1 [Arthur Larson & Lex K.] Larson, [Larson’s Workers’ Compensation Law, ] § 13.00 [ (1998) ]. In applying this rule to a factually similar case, the Supreme Court of Appeals of West Virginia held:
“ ‘[I]f a worker’s compensation claimant shows that he received an initial injury which arose out of and in the course of his employment, then every normal consequence that flows from the injury likewise arises out of the employment. If, however, a subsequent aggravation of the initial injury arises from an independent intervening cause not attributable to the claimant’s customary activity in light of his condition, then such aggravation is not compensable.
“ ‘Thus, the fact that the claimant is injured and then returns to work does not mean that he is foreclosed from demonstrating that the original injury became aggravated by some routine event which triggered its recurrence. Such routine event is ordinarily one where the claimant is doing an activity that would be customary in light of his condition.’
“Wilson v. Workers’ Compensation Comm’r, 174 W.Va. 611, 616, 328 S.E.2d 485, 490 (1984); see also Lou Grubb Chevrolet, Inc. v. Industrial Cornm’n, 174 Ariz. 23, 26, 846 P.2d 836, 839 (Ariz.App.1992) (‘[An] employee’s reasonable conduct in causing a later nonindustrial injury does not relieve the employer of liability if the later injury is the “direct and natural result” of the compensable work injury.’). Thus, ‘a subsequent injury, whether an aggravation of an original injury or a new and distinct injury, is compensable if it is the direct and natural result of a compensable primary injury.’ 1 Larson, supra, § 13.11.”

In its judgment in this case, the trial court determined that nonoccupational factors resulted in McRae’s August 28, 2010, injury and that the subsequent injury bore no causal relation to the original injury. Specifically, the trial court referred to Dr. Miller’s medical records of February 2010 and May 2010, which state that both the left-leg fracture and the wound were healed, and concluded that “[t]he medical evidence presented at trial indicates a clear distinction between [McRae’s] two injuries.” Under the successive-compensable-injury test, “ ‘it is not the situs of the second injury (ie., either the place where the accident occurred or the physical location of the injury) that is controlling, but rather whether the subsequent injury was a natural consequence of a prior compensable injury.’ ” Sistrunk v. Sikorsky Support Servs., Inc., 961 So.2d 166, 170 (Ala.Civ.App.2007) (quoting Erwin v. Harris, 474 So.2d 1125, 1128 (Ala.Civ.App.1985)). The applicable standard is not whether the subsequent injury was caused by nonoccupational factors, nor is the applicable test whether there is a causal connection between the two injuries. See Ex parte Dunlop Tire Corp., 772 So.2d 1167, 1171 (Ala.2000). Rather, the applicable standard is whether McRae’s second injury, i.e., the “busting open” of the scar, is “ ‘the direct and natural result’ ” of his April 2009 injury, “regardless of whether it was incurred at work or elsewhere.” Sistrunk, 961 So.2d at 170 (citing Landstar Ranger v. Kent, 828 So.2d 322 (Ala.Civ. App.2002), and Erwin, 474 So.2d at 1128). The trial court’s judgment does not specify how the subsequent injury was the result of an independent intervening cause attributable to McRae’s own intentional conduct, nor does the trial court provide any indication that stepping in a hole would be considered an independent intervening cause not attributable to McRae’s customary activity in light of his condition. Therefore, we reverse the trial court’s judgment on this matter, and we remand the cause to the trial court for further proceedings concerning the application of the successive-compensable-injury test. See Pike County Comm’n, supra (injured employee’s herniated disk caused while picking up his 12-pound baby at his home was compensable under suecessive-compensable-injury test as a natural consequence of the primary injury); see also Wal-Mart Stores, Inc. v. Orr, 29 So.3d 210 (Ala.Civ.App.2009)(finding that there was not substantial evidence to conclude that injured employee’s left-hip injury, which was based on avascular necrosis, was a natural consequence of the compensable left-knee injury); Sistrunk, supra (holding that the trial court misapplied the applicable standard in determining compensability for a subsequent injury caused by overcompensation); Landstar Ranger, supra (concluding that, under the successive-compensable-injury test, the injured employee injured his left shoulder as a result of overcompensating for a previously injured right shoulder and holding that the employee was performing activity that would be customary in light of his position); and Labinal, Inc./Globe Motors v. Alphord, 820 So.2d 104, 112 (Ala.Civ.App.2001) (Crawley, J., concurring in the result)(“The successive-compensable-injury test ... applies to injuries that are not directly related to work activities.... ”). As to McRae’s complaints of leg pain and back pain, which are not specifically addressed in the trial court’s judgment, we instruct the trial court to determine on remand whether McRae is entitled to compensation for those complaints under the successive-compensable-injury test, and, if so, to amend its judgment accordingly.

We pretermit discussion on the trial court’s judgment concerning the date McRae reached MMI. If, on remand, the trial court determines that the successive injuries are compensable under the legal standard discussed, supra, the trial court should also reevaluate whether the date of MMI should remain at May 24, 2010, or whether it should be modified in light of the compensability of the successive injuries.

Similarly, we pretermit discussion on the issue of McRae’s alleged unreasonable refusal of an offer of suitable employment under § 25-5-57(a)(3)e. However, we note, for the trial court’s consideration in amending its judgment on remand, that in cases in which § 25-5-57(a)(3)e is applicable, the statute does not bar recovery of permanent-partial-disability compensation for scheduled injuries. See Agricola Furnace Co. v. Smith, 239 Ala. 488, 492, 195 So. 743, 746 (1940)(finding that “Section 7551, Code (General Acts 1936 [Extra Session], page 12, § 2),” the precursor statute to § 25-5-57(a)(3)e, “is inapplicable to cases involving permanent partial disability enumerated in the schedule”); see also 1 Moore, Alabama Workers’ Compensation § 16:52 at 753(“A refusal of suitable work does not affect the payment of schedule permanent partial disability benefits.”). Thus, the penalty in § 25-5-57(a)(3)e cannot bar McRae from receiving permanent partial-disability benefits for his leg pursuant § 25-5-57(a)(3)a(16). Additionally, we note that § 25-5-57(a)(3)e cannot bar McRae from receiving medical benefits under § 25-5-77, Ala.Code 1975, because the penalty statute, if applicable, only prohibits an injured employee from receiving “compensation.” “[M]edical and surgical treatment and attention, medicine, medical and surgical supplies, and crutches and apparatus furnished an employee on account of an injury” are specifically excluded from the definition of compensation in § 25-5-1(1), Ala.Code 1975. The penalty statute, however, may serve to bar an injured employee from receiving compensation for injuries not on the schedule and temporary-total-disability benefits.

Conclusion

For the foregoing reasons, we affirm the judgment on the issue of the burden of proof; we reverse the judgment and remand with instructions on the issue concerning successive injuries; and we preter-mit discussion as to the issues relating to the date of MMI and McRae’s alleged unreasonable refusal to return to work.

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

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

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


source: Caselaw Access Project

author: DONALDSON, Judge. THOMAS, Judge,

license: Public Domain

text:
    Amy Miller WINFORD v. John Alexander WINFORD.
    2120097.
    Court of Civil Appeals of Alabama.
    Aug. 2, 2013.

      Seth D. Stringer, Birmingham, for appellant.
    Jessica Kirk Drennan, Birmingham, for appellee.
   DONALDSON, Judge.

Amy Miller Winford (“the mother”) appeals from a default judgment entered against her by the Jefferson Circuit Court (“the trial court”) in an action initiated by John Alexander Winford (“the father”) seeking to modify custody of the parties’ minor children (“the children”), and the trial court’s subsequent denial of the mother’s motion to alter, amend, or vacate that judgment, which awarded sole custody to the father and visitation to the mother.

Facts and Procedural History

The father and the mother were married on June 17, 2000. The marriage produced two children who are the subject of these proceedings. The father and the mother were divorced by a judgment entered by the trial court on May 25, 2004, the terms of which granted custody of the children to the mother and visitation to the father.

On November 1, 2011, the mother’s parents filed petitions in the Jefferson Juvenile Court (“the juvenile court”) alleging that the children were dependent and seeking custody of the children. The record in this case does not contain the petitions filed by the maternal grandparents.

On January 26, 2012, the father filed a petition for modification of custody in the trial court alleging a material change of circumstances. He alleged that the mother had abdicated her parenting responsibilities to the maternal grandparents and had “failed to provide proper medical care, financial resources and emotional support for the stated children.” In his petition, the father alleged:

“5. That on or about the day of November [1], 2011, the Mother’s parents filed two Verified Petitions for Dependency and Custody and Ex Parte Motion for Temporary Custody for both minor children in the Family Court of Jefferson County, case numbers JU-11 52645 and JU-11-52175.
6. That the case filed by the grandparents is in the nature of a custody case and as such the Family Court of Jefferson County does not have jurisdiction over said claim. The stated children have a parent who is able and willing to care for them, namely the Father. The Father has not neglected, abused, failed to protect, abandoned nor relinquished custody of said children. Due to the lack of jurisdiction, any orders entered by the Family Court of Jefferson County are void.”

There is no indication in the record that the father attempted to have the dependency cases dismissed in the juvenile court or otherwise challenged the allegations of dependency in that court. On February 1, 2012, the mother was personally served with the father’s petition to modify custody. On March 20, 2012, the father filed an application with the clerk of the trial court for an entry of default against the mother because the mother had not responded to his petition. On March 21, 2012, the mother filed a pro se answer to the petition, which included a general denial of the matters alleged in the petition to modify custody. On March 27, 2012, the trial court issued order setting a default hearing for May 7, 2012. The trial court subsequently issued orders moving the hearing date to May 21, 2012. Notice of the hearing was sent by mail to the same address where the mother received notice of all other filings and hearing dates, and the mother admits as much. On May 4, 2012, the father filed a motion to compel the mother to answer discovery that had been propounded. The motion noted that the “matter is currently set for a hearing on May 21, 2012.” On May 14, 2012, the trial court granted the father’s motion to compel and ordered the mother to respond by May 25, 2012. On May 21, 2012, the trial court held an ore tenus default hearing but the mother failed to appear for that hearing. On May 30, 2012, the trial court entered a judgment granting sole custody to the father, which contained a number of “standard” visitation conditions, including a restriction against either parent allowing an adult of the opposite sex with whom the parent has a “romantic and/or sexual relationship” to stay overnight at the parent’s home while the children are present. The May 30 order stated that the May 21 hearing had been conducted as a “Default Hearing” and that the mother, “being properly served on or about the 7th day of February, 2012 by private process server[] has failed to appear before the Court.”

On June 28, 2012, less than 30 days after the entry of the judgment, the mother, represented by counsel, filed a motion to alter, amend, or vacate. The mother contended, among other things, that she did not receive notice of the May 21 hearing in sufficient time to attend the hearing, that she could not be deprived of custody of the children without adequate notice and an opportunity to be heard, and that the restrictions on her ability to live with her boyfriend while visiting with the children were not appropriate. The trial court set the mother’s motion for a hearing date of August 28, 2012. On July 11, 2012, the father filed a response to the mother’s motion to alter, amend, or vacate, asserting, among other things, that the mother had been sent notices of the hearing and had failed to attend. On August 27, 2012, the mother filed an amended motion to alter, amend, or vacate, alleging that the trial court lacked subject-matter jurisdiction over the matter and had failed to apply the factors announced in Kirtland v. Fort Morgan Authority Sewer Service, Inc., 524 So.2d 600 (Ala.1988). The mother’s motion to alter, amend, or vacate was denied by operation of law on September 26, 2012, and the mother timely appealed the trial court’s judgment.

On appeal, the mother argues that the trial court lacked jurisdiction to modify custody of the children because of the pending dependency actions; that the trial court erred in entering a default judgment after the mother answered the petition; that the trial court erred in refusing to set aside the default judgment; and that the trial court erred in ordering restrictions on overnight guests during visitation.

Discussion

As a threshold matter, we first address the mother’s allegation that the trial court lacked jurisdiction to enter a judgment on the father’s petition to modify custody of the children while dependency petitions were pending in juvenile court on related facts. A trial court’s “determination as to jurisdiction is strictly a legal matter. Therefore, we apply a de novo standard of review. See Ex parte Morris, 999 So.2d 932, 936 (Ala.2008).” J.L.L. v. Jefferson Cnty. Dep’t of Human Res., 127 So.3d 433, 434 (Ala.Civ.App.2012).

There is no indication in the record that the juvenile court conducted a hearing to determine whether the children were dependent. The record shows, however, that the juvenile court entered what it termed to be a “Temporary Order” in the depending actions on June 12, 2012. That order, again without any indication that the children had been found to be dependent, purportedly granted “joint legal custody” of the children to both the father and the mother, with the father having primary physical custody. The mother was provided specified visitation rights. The juvenile court “reserved” the issue of child support and ordered the father to provide health insurance for the children. The order shows it was entered “over [the mother’s] objection.”

The record thus shows that at the time the father filed his petition in the trial court in January 2012, there was a pending dependency case in the juvenile court regarding the children. “A juvenile court shall exercise exclusive original jurisdiction of juvenile court proceedings in which a child is alleged to have committed a delinquent act, to be dependent, or to be in need of supervision. A dependency action shall not include a custody dispute between parents.” § 12-15-114(a), Ala.Code 1975. In A.G. v. Ka.G., 114 So.3d 24, 26 (Ala.2012), a case involving similar procedural issues of concurrent jurisdiction in child-custody proceedings, our supreme court held:

“Subject to two exceptions, when a circuit court acquires jurisdiction regarding an issue of child custody pursuant to a divorce action, it retains jurisdiction over that issue to the exclusion of the juvenile court. C.D.S. v. K.S.S., 963 So.2d 125, 129 (Ala.Civ.App.2007); Ex parte K.S.G., 645 So.2d 297, 299 (Ala.Civ.App.1992). Those two exceptions are: 1) when emergency circumstances exist that threaten the immediate welfare of the child; and 2) when a separate dependency action is instituted. M.P. v. C.P., 8 So.3d 316 (Ala.Civ.App.2008). The second exception is clearly applicable here.
“The juvenile court is a court of limited jurisdiction, exercising exclusive original jurisdiction in proceedings in which a child is alleged to be dependent or in need of supervision. § 12-15-114(a), Ala. Code 1975. Once the dependency jurisdiction of the juvenile court has been properly invoked, the juvenile court has an imperative statutory duty to conduct a hearing to determine the dependency of the child. T.K. v. M.G., 82 So.3d 1 (Ala.Civ.App.2011); L.B. v. R.L.B., 53 So.3d 969 (Ala.Civ.App.2010). Pursuant to § 12-15-129, Ala.Code 1975, a hearing on the merits of the petition is required to determine if the child is, in fact, dependent. L.B. v. R.L.B., 53 So.3d at 973.
“ ‘The [Alabama Juvenile Justice Act, § 12-15-101 et seq., Ala.Code 1975,] specifically provides that the dependency jurisdiction of the juvenile court is triggered by the filing of a petition with a juvenile-court intake officer alleging facts sufficient to prove the dependency of the child. See §§ 12-15-114(a) and 12-15-120(a).’ Montgomery Cnty. Dep’t of Human Res. v. McDermott, 74 So.3d 455, 458 (Ala.Civ.App.2011). ‘A child is dependent if, at the time a petition is filed in the juvenile court alleging dependency, the child meets the statutory definition of a dependent child.’ Ex parte L.E.O., 61 So.3d 1042, 1046 (Ala. 2010).... If the allegations in the dependency petition are denied by the parent or if the parent fails to respond, the juvenile court shall hear evidence on the petition, and, if the court finds that the allegations in the petition have not been proven by clear and convincing evidence, the juvenile court shall dismiss the petition. § 12 — 15—310(b), Ala.Code 1975.”

In C.D.S. v. K.S.S., 963 So.2d 125 (Ala.Civ.App.2007), this court held that the filing of dependency petitions with the juvenile court while the circuit court retains continuing jurisdiction over child custody arising from a divorce judgement confers “upon the juvenile court exclusive original subject-matter jurisdiction over the dependency proceedings initiated by those petitions but also confer[s] upon the juvenile court subject-matter jurisdiction over custody issues that is concurrent with the continuing subject-matter jurisdiction over custody issues conferred upon the circuit court by the parties’ divorce action.” C.D.S., 963 So.2d at 129-30.

In the present case, the dependency petitions were pending in the juvenile court at the time the father filed the custody-modification petition in the trial court. It is apparent that the dependency petitions sufficiently invoked the juvenile court’s dependency jurisdiction because the petitions have not been dismissed and the juvenile court entered a “temporary order” after the judgment that forms the basis of this appeal was entered by the trial court. From the record, then, it appears that the juvenile court had original and exclusive jurisdiction over the dependency petitions but shared concurrent jurisdiction over child custody with the trial court, which had continuing subject-matter jurisdiction of the child-custody dispute between the parents based on its resolution of custody issues in the parents’ divorce judgment. Therefore, in the absence of a conflicting judgment from the juvenile court entered on the basis of a dependency finding, the trial court was not deprived of its continuing jurisdiction to enter orders pertaining to the custody dispute between the parents.

Next, we address the mother’s allegation that the trial court erred in holding a default hearing and entering a judgment when the mother had filed an answer to the father’s custody-modification petition before that hearing. In TA Financial, Inc. v. Discover Bank, 967 So.2d 90 (Ala.2007), the supreme court reversed a default judgment entered by the trial court when the defendant had filed its answer before the hearing on the plaintiffs motion for a default judgment, holding that “ ‘the filing of that answer cured the default before any default judgment was entered. Thus, the default judgment should not have been entered.’ ” Id. at 91. There is no dispute in this case that the mother filed her answer prior to the default hearing. Further,

“[t]he courts of Alabama have often held:
“ ‘In dealing with such a delicate and difficult question — the welfare of a minor child — due process of law in legal proceedings should be observed. These settled courses of procedure, as established by our law, include due notice, a hearing or opportunity to be heard before a court of competent jurisdiction. Tillman v. Walters, 214 Ala. 71, 108 So. 62 [1925].’
“Danford v. Dupree, 272 Ala. 517, 132 So.2d 734 (1961). Thorne v. Thorne, 344 So.2d 165 (Ala.Civ.App.1977). The parental right to due process far outweighs any burden that would be placed on the proceeding to determine that right. Thorne v. Thorne, supra.

Lamoreaux v. Schadt, 442 So.2d 117, 118 (Ala.Civ.App.1983).

Therefore, we reverse the default judgment of the trial court and remand this matter for further proceedings. Because we reverse the judgment of the trial court, we pretermit further discussion of the rulings contained therein.

The mother’s request for attorney’s fees is denied.

REVERSED AND REMANDED.

THOMPSON, P.J., concurs.

THOMAS, J., concurs specially.

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

PITTMAN, J., recuses himself.

THOMAS, Judge,

concurring specially.

I agree that the circuit court had jurisdiction to entertain the petition for modification of custody filed by John Alexander Winford (“the father”) despite the pen-dency of dependency petitions in the juvenile court, and I agree that the circuit court erred in holding the default-judgment hearing after Amy Miller Winford (“the mother”) had filed her answer to the father’s petition. I write specially to point out that this court has historically viewed the failure to set aside a default judgment in a domestic-relations case as reversible error.

Our supreme court has explained that a court reviewing whether to set aside a default judgment must begin with “a strong bias toward allowing the defendant to have his [or her] day in court,” Kirtland v. Fort Morgan Auth. Sewer Serv., Inc., 524 So.2d 600, 605 (Ala.1988). As this court has stated, “[t]he strong bias in favor of deciding cases upon the merits identified by the Kirtland court is particularly strong in domestic-relations cases.” Fuller v. Fuller, 991 So.2d 285, 289 (Ala.Civ.App.2008); see also Sumlin v. Sumlin, 931 So.2d 40, 44 (Ala.Civ.App.2005) (“[W]e can envision no species of case in which the ‘strong bias’ in favor of reaching the merits ... could be any stronger than in a case such as this involving custody of a minor child.”); and Evans v. Evans, 441 So.2d 948, 950 (Ala.Civ.App.1983) (stating that, “especially in the divorce context, a court should be particularly reluctant to uphold a default judgment (and thereby deprive a litigant of his day in court) because it means that such important issues as child custody ... will be summarily resolved”). Thus, I further conclude that the circuit court erred in allowing the mother’s Rule 55(c), Ala. R. Civ. P., motion to set aside the default judgment to be denied by operation of law pursuant to Rule 59.1, Ala. R. Civ. P.