author: THOMPSON, Presiding Judge.

text:
    Robin MOUSSEAU v. Gladys WIGLEY
    2150584
    Court of Civil Appeals of Alabama.
    January 6, 2017

      Lisa M. Ivey, Jasper, for appellant.
    Gladys Wigley, pro se.
   THOMPSON, Presiding Judge.

Robin Mousseau filed in the Calhoun Probate Court (“the probate court”) á petition to be appointed as the guardian or conservator of her mother, Christine Brad-berry. Gladys Wigley, who is Mousseau’s sister and also Bradberry’s daughter, counterclaimed in the probate court by filing a competing petition seeking to be. appointed Bradberry’s guardian.

On April 6, 2015, the probate court entered a judgment denying Mousseau’s petition and granting Wigley’s petition, Mous-seau filed a notice of appeal to the Calhoun Circuit Court (“the circuit court”) on May 26,2015. ■

On November 9, 2015, Wigley moved the circuit court to dismiss Mousseau’s appeal from the probate court’s judgment on the ground that the appeal was untimely. Wig-ley also 'sought a dismissal on the ground that Mousseau had failed to properly give security for her appeal to the circuit court. Mousseau opposed the motion to dismiss.

• On March 8, 2016, the circuit court entered a judgment finding that Mousseau’s appeal from the probate court’s judgment had not been timely filed, and it dismissed the appeal. Mousseau filed a timely post-judgment motion on April 7, 2016, and she attached an affidavit to that motion. Mous-. seau filed-.a notice of appeal on April 14, 2016. That notice of appeal was deemed held in abeyance until either the circuit court ruled on the postjudgment motion or that motion was denied by operation of law pursuant to Rule 59.1, Ala. R. Civ. P. Rule 4(a)(5), Ala, R. App. P. (“A notice of appeal filed after the entry of the judgment but before the disposition of all post-judgment motions filed pursuant to Rule 50, 52, 55, and 59, Alabama Rules of Civil Procedure, shall be held.in abeyance until all post-judgment motions filed pursuant to Rules 50, 52, 55, and 59 are ruled upon; such a notice of appeal shall become effective upon the date of disposition of the last of all such motions.”). The circuit court did not enter an order on Mousseau’s post-judgment motion, and that motion was denied' by operation of law on July 6, 2016. Rule 59.1, Ala. R. Civ. P. The notice of appeal became effective on that date. Rule 4(a)(5), Ala. R. App. P.; Carter v. Carter, 110 So.3d 382, 382-83 (Ala. Civ. App. 2012).

Mousseau does not dispute that she failed to timely file her appeal to the circuit court from the April 6, 2015, probate-court judgment within the required 42 days of the entry of that judgment, i.e., by May 18, 2015. See Eldridge v. Eldridge, 25 So.3d 29, 31-32 (Ala. Civ. App. 2009); § 12-22-21, Ala. Code 1975 (providing for appeals to circuit courts from probate-court judgments); and Rule 4(a), Ala. R. App. P. (providing that an appeal must be taken within 42 days of the entry of a judgment). Rather, in opposing Wigley’s motion to dismiss in the circuit court, Mousseau argued that the probate-court clerk had not mailed her a copy of the April 6, 2015, judgment immediately following the entry of the judgment and that, when her attorney learned of the entry of the probate court’s judgment, the probate court-clerk refused to provide a copy of the judgment until Mousseau paid her outstanding court costs. Mousseau alleged that she paid those costs and received a copy of the probate court’s April 6, 2015, judgment on May 13, 2015. Mousseau contended in her initial, November 10, 2016, response to the motion to dismiss filed in the circuit court that the circuit court should apply principles of equity to afford her additional time to appeal from the probate court’s judgment. Mousseau filed in the circuit court a second opposition to the motion to dismiss on November 11, 2016, in which she contended that the circuit court could grant her additional time to appeal under Rule 77(d), Ala. R. Civ. P., which allows for relief when, due to excusable neglect, a party fails to timely appeal.

On appeal, Mousseau argues that the circuit court failed to comply with Rule 77(d) in failing to extend the time allowed for her to appeal the probate court’s April 6, 2015, judgment. Rule 77(d) provides, in pertinent part:

“Immediately upon the entry of an order or judgment the clerk shall serve a notice of the entry by mail or by electronic transmittal in the manner provided for in Rule 5[, Ala. R. Civ. P.,] upon each party who is not in default for failure to appear, and who was not present in person or by that party’s attorney or not otherwise notified, when such order or judgment was rendered, and make a note on the docket of the mailing or electronic transmittal. ... 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.”

. In this case, the court that allegedly failed to provide notice of the entry of the judgment was the probate court, not the circuit court. “The Rules of Civil Procedure, which govern ‘evidence, pleading and practice, judgments and .orders in thé circuit court,’ likewise govern probate-court proceedings ‘in the absence of express provision’ to the contrary. Ala. Code 1975, § 12-13-12.” Hutchinson v. Miller, 962 So.2d 884, 886 n. 1 (Ala. Civ. App. 2007). The Alabama Uniform Guardianship and Protective Proceedings Act, § 26-2A-1 et seq., Ala. Code 1975, specifies that the Alabama Rules of Civil Procedure apply in actions brought under- that act. § 26-2A-33, Ala. Code 1976. Our courts have applied Rule 77(d) in other actions in a probate court. See Ex parte Tanner, 553 So.2d 598 (Ala. 1989) (holding that a party could obtain a Rule 77(d) extension of time to appeal in a condemnation action when the probate court’s original notice of the judgment was incorrect); and J.D. v. M.B., 226 So.3d 706, 709-10 (Ala. Civ. App. 2016) (discussing the application of Rule 77(d) in the context of an appeal of an adoption judgment entered by a probate court).

Under Rule 77(d), Mousseau could have filed a motion asking the probate court for additional time in which to file her appeal. See Altmayer v. Stremmel, 891 So.2d 305, 308 (Ala. 2004) (holding that Rule 77(d) authorizes a court, upon a showing of “excusable neglect,” to extend the time for taking an appeal by no more than 30 days); and Ireland v. Piggly Wiggly Alabama Distributing Co., 719 So.2d 844 (Ala. Civ. App. 1998) (discussing, generally, the application of Rule 77(d)); and J.D. v. M.B., supra (in which the father filed a Rule 77(d) motion in the probate court seeking additional time to appeal the probate court’s judgment to the circuit court). However, Mousseau did not file a Rule 77(d) motion in the probate court.

Rather, Mousseau mentioned Rule 77(d) for the first time in the circuit court in her November 11, 2015, amendment to her opposition to the motion to dismiss. Even if this court were to interpret that filing as a request for Rule 77(d) relief, we note, first, that relief was requested in the wrong court.

Further, although Mousseau cites Etherton v. City of Homewood, 700 So.2d 1374 (Ala. Civ. App. 1997), in her appellate brief, that case does not support a reversal of the circuit court’s judgment. In Ether-ton, supra, the Ethertons first learned of the entry of a June 26, 1996, order, certified as final pursuant to Rule 54(b), Ala. R. Civ. P., on August 9, 1996, which was 2 days after the 42-day period for filing a timely appeal of that order. The Ethertons appealed to our supreme court on August 29, 1996, and, on November 1, 1996, they filed a motion in our supreme court asking that their appeal be treated as timely. In that motion filed in our supreme court, the Ethertons argued that, although their counsel had inquired regarding the status of the action, they had first learned of the entry of the order after the time for taking an appeal had passed. Our supreme court concluded that, had the Ethertons filed a Rule 77(d) motion in the trial court, the trial court might have granted them additional time to appeal, and it noted that the Ethertons’ notice of appeal had been filed within 30 days of the expiration of the time for appeal, i.e., within the time that could have been allowed under a Rule 77(d) extension of the time for taking an appeal. 700 So.2d at 1378. Our supreme court then determined that the Ethertons’ failure to file a Rule 77(d) motion was not fatal, explaining:

“The dismissal of an appeal as untimely in a case in which the judiciary itself failed to follow the mandates of Rule 77(d) and thereby caused the untimeliness would not be ‘just.’ Indeed, it would be particularly repugnant, not only to the tenor of the rules, but also to justice, equity, and the integrity of the institution. It would be inequitable and unjust to hold a party strictly to the provisions of Rule 77(d) if the judiciary itself does not comply with them.”

700 So.2d at 1378. The supreme court remanded the matter to the trial court in that case to consider the merits of the Ethertons’ arguments that their notice of appeal should be deemed timely filed. Etherton, supra.

As already indicated, however, Mousseau did not file a Rule 77(d) motion in the probate court, and she has not appealed directly to this court from the probate court’s judgment. Accordingly, this court cannot, as did our supreme court in Etherton, remand this cause to the probate court for it to consider Mousseau’s arguments. To the extent that Mousseau’s brief might be interpreted to argue that the circuit court, as the court from which the appeal from the probate-court judgment was taken, should have remanded the action to the probate court for a determination of the merits of Mousseau’s arguments, we note that Mousseau did not make any argument based on Etherton before the circuit court. “It is well settled that an appellate court may not hold a trial court in error in regard to theories or issues not presented to that court.” Allsopp v. Bolding, 86 So.3d 952, 962 (Ala. 2011).

Out of an abundance of caution, we also note that, if this court were to consider the relief requested by Mousseau in the same manner as did our supreme court in Etherton, we would conclude that the facts of this case are distinguishable from the facts of Etherton. In Etherton, the Ether-tons’ counsel looked at the case file and inquired regarding the entry of an order and found no indication that an order or judgment had been entered. In this case, Mousseau learned at some point before the expiration of the 42 days in which to appeal that the probate court’s judgment had been entered. She asserts that the probate court refuses to provide her the judgment until she paid the required court costs. However, once Mousseau paid those costs on May 13, 2015, she received the copy of the judgment; therefore, Mousseau had possession of the probate court’s judgment five days before the expiration of the period allowed for her to appeal that judgment. Mousseau has made no argument and has presented no evidence concerning any issues that prevented her from appealing the probate court’s judgment in the five days between May 13, 2015, and May 18,2015.

The circuit court correctly determined that it lacked jurisdiction over Mousseau’s untimely appeal of the probate court’s judgment. We affirm the circuit court’s judgment of dismissal. Huggins v. Alabama Dep’t of Pub. Safety, 891 So.2d 337, 340-41 (Ala. Civ. App. 2004) (affirming a judgment in which the trial court correctly determined that it lacked jurisdiction).

AFFIRMED.

Pittman, Thomas, Moore, and Donaldson, JJ., concur.

      , The probate court entered two separate orders that constituted the final judgment in the probate action. In one order, ■ the probate court denied Mousseau’s petition, and in the second order, it granted Wigley's petition and ordered that Wigley be appointed as Bradber-ry’s guardian, For the purpose of this opinion, we have referred to the two orders as "the judgment” of the probate court.

      . The circuit court pretermitted consideration of the issue of the failure to pay security for the appeal.

      . We do not reach the issue of whether such relief was appropriate, given that Mousseau knew about the entry of the April 6, 2015, judgment, as well as the substance of that judgment, before the expiration of the time for taking an appeal of that judgment.


source: Caselaw Access Project

license: Public Domain

text:
    Jimmy L. JOHNSON, Jr. v. FIRST ACCEPTANCE INSURANCE COMPANY, INC.
    2150629
    Court of Civil Appeals of Alabama.
    January 6, 2017

      James G. Bodin of McPhillips, Shinb-aum, L.L.P., Montgomery, for appellant.

      K Phillip Luke and David R. Wells of Whitaker, Mudd, Luke & Wells, L.LC., Birmingham, for appellee. -
   THOMPSON, Presiding Judge.

On July 28, 2014, Jimmy L. Johnson, Jr., filed in the Lowndes Circuit Court (“the trial court”) a complaint against First Acceptance Insurance Company, Inc. (“First Acceptance”), seeking a judgment declaring that he was entitled to underirisured-motorist (“UIM”) coverage under an insurance contract between Johnson and First Acceptance. In his complaint, Johnson also sought damages on claims of breach of contract and bad-faith failure to pay. First Acceptance answered and denied liability. We note that both parties moved, separately, to dismiss the bad-faith claim, and on September 2, 2014, the trial court entered an order dismissing that claim.

Johnson moved for a partial summary judgment on his claim seeking declaratory relief. First Acceptance opposed that summary-judgment motion, and it filed a motion for a summary judgment on Johnson’s claims. On March 17, 2016, the trial court entered a judgment in which it denied Johnson’s summary-judgment motion, denied a motion to strike filed by Johnson, and entered a summary judgment in favor of First Acceptance, In response to a motion by Johnson, the trial court, on April 15, 2016, entered an order purporting to certify the March 17, 2016, judgment as final pursuant to Rule 54(b), Ala. R. Civ. P. We note, however, that the March 17, 2016, judgment, because it ruled on all of Johnson’s claims, was a final judgment. Johnson’s April 26, 2016, notice of appeal was timely with respect to both the March 17, 2016, judgment and the April 15, 2016, order purporting to certify the judgment as final. Our supreme court transferred the appeal to this court pursuant to § 12-2-7(6), Ala. Code 1975.

The materials' submitted to the trial court indicate the following pertinent facts. On October 18, 2013, Johnson was involved in a motor-vehicle accident caused by an underinsured driver. Johnson had a policy of automobile, insurance with First Acceptance, and he sought to recover UIM benefits under that policy. First Acceptance denied Johnson’s claim, asserting that Johnson had declined UIM coverage.

In Alabama, UIM coverage, which is at issue in this case, is a subset of. uninsured-motorist coverage, ahd it is governed by § 32-7-23, Ala. Code 1975. State Farm Mut. Auto. Ins. Co. v. Motley, 909 So.2d 806, 810-811 (Ala. 2005). “‘[U]nin-sured/underinsured motorist benefits ... are mandated by § 32-7-23, Code of Alabama (1975). The purpose of the statute is to provide “ ‘ “coverage ... for the protection of persons insured thereunder who are legally entitled to recover damages from the owners or operators of uninsured motor vehicles.’’””” State Farm Mut. Auto. Ins. Co. v. Motley, 909 So.2d at 811 (quoting Auto-Owners Ins. Co. v. Hudson, 547 So.2d 467, 468 (Ala. 1989), quoting in turn Alabama Farm Bureau Mut. Cas. Ins. Co. v. Clem, 49 Ala.App. 457, 461, 273 So.2d 218, 221 (Ala. Civ. App. 1973), quoting in turn Safeco Ins. Co. of America v. Jones, 286 Ala. 606, 609, 243 So.2d 736, 737-38 (1970)).

Section 32-7-23(a) governs uninsured-motorist coverage;-and has been interpreted as requiring an applicant reject UIM coverage in writing. See Continental Cas. Co. v. Pinkston, 941 So.2d 926, 929 (Ala. 2006) (interpreting § 32-7-23(a) as “requiring] that every automobile-liability-insurance policy issued or delivered in Alabama provide uninsured/underinsured-mo-torist coverage with limits for bodily injury or death of at least $20,000 per person, unless the coverage is specifically rejected in writing by the named insured”). “The Uninsured Motorist Statute, Code 1975, § 32-7-23, absent rejection by the named insured, mandates uninsured motorist coverage for the protection of persons insured under a motor vehicle liability policy.” Holloway v. Nationwide Mut. Ins. Co., 376 So.2d 690, 694 (Ala. 1979). Any “rejection of uninsured motorist coverage will be effective only if signed in writing by the named insured.” Progressive Cas. Ins. Co. v. Blythe, 350 So.2d 1062, 1065 (Ala. Civ. App. 1977). See also State Farm Mut. Auto. Ins. Co. v. Martin, 292 Ala. 103, 106, 289 So.2d 606, 609 (1974) (explaining that an insurer must offer to provide uninsured-motorists’ coverage but that an insured may reject that coverage in writing).

In this case, the parties do not dispute that Johnson did not physically sign a paper insurance application or contract, or a form pertaining to UIM coverage, by using a pen. Rather, First Acceptance contends that Johnson signed the application for insurance electronically and that his signature declining UIM coverage is his electronic signature.

Alabama’s Uniform Electronic Transactions Act (“the UETA”), § 8-1A-1 et seq., Ala. Code 1975, governs matters such as electronic signatures on contracts. Among other things, the UETA provides that, in certain contexts, “[i]f a law requires a record to be in writing, an electronic record satisfies the law,” and that, “[i]f a law requires a signature, an electronic signature satisfies the law.” § 8-lA-7(c) and (d), Ala. Code 1975. Before the trial court, First Acceptance argued that an insured’s electronic signature could operate to allow an insured to reject UIM coverage. The trial court, in granting the summary judgment in favor of First Acceptance, appears to have agreed with First Acceptance’s argument.

Johnson argues on appeal that the trial court erred in entering a summary judgment in favor of First Acceptance. In his brief on appeal, Johnson points out that the appellate courts of this state have not addressed whether an electronic signature under the UETA may operate as an effective “written” rejection of UIM coverage. He asserts, in one sentence of his appellate brief, that “substantive state laws requiring actual signatures, or a waiver of UIM coverage, must be in a writing signed by the insured,” and that caselaw requiring a rejection of UIM coverage to be in writing is in conflict with the UETA. However, other than that concluso-ry sentence, Johnson does not argue that the trial court erred in determining that an electronic signature was effective in rejecting UIM coverage. In his brief before this court, Johnson does not identify any portion of the UETA that he contends is in conflict with § 32-7-23 or Alabama case-law interpreting § 32-7-23(a) as requiring the rejection of UIM coverage to be in writing; he does not develop any argument that a requirement of a signature cannot be satisfied by an electronic signature under § 8-1A-7. It is not the function of this court to create and develop an argument on behalf of a party or to perform that party’s legal research to support such an argument. McLemore v. Fleming, 604 So.2d 353 (Ala. 1992); Spradlin v. Spradlin, 601 So.2d 76, 79 (Ala. 1992). We decline to address an issue of first impression in the absence of a properly developed argument from an interested appellant. Accordingly, for the purposes of resolving this appeal, we do not address the trial court’s determination that an electronic signature may suffice to waive UIM coverage, and, instead, we address the properly supported arguments set forth in Johnson’s brief on appeal.

In support of its position that Johnson had, by virtue of his electronic signature, waived UIM coverage, First Acceptance submitted a copy of the insurance application that contains Johnson’s name in a different type font than that of the rest of the application. First Acceptance argued that that different font indicated- that Johnson had selected a font and had electronically signed the part of the insurance application indicating that he wanted to decline UIM coverage.

First Acceptance also submitted the July 27, 2015, affidavit of Tracy D. McCoy, its assistant vice president of underwriting. McCoy testified that on December 21, 2012, Johnson went to a First Acceptance office and, “with the assistance of the local agent,” completed an electronic application for insurance. McCoy’s affidavit explains the manner in which First Acceptance agents are to assist applicants who are applying for insurance by computer. In relevant part, McCoy stated that the agent provides the applicant with a computer mouse so that the applicant can use the computer to select a font for his or her electronic signature and to sign his or her name to certain parts of the insurance application, including the form pertaining to UIM coverage.

In addition, First Acceptance submitted the July 29, 2015, affidavit of India Thomas, in which Thomas stated that she was an agent for First Acceptance and that, on December 21, 2012, Johnson completed an application for insurance with her assistance. Thomas testified in her affidavit regarding the manner in which applicants are given access to the computer to electronically sign to accept or reject certain terms of the insurance application. Thomas stated that she had never electronically signed an insurance application on behalf of an applicant. Thomas also testified in her July 29, 2015, affidavit that, based on her “personal knowledge and review of the applicable policy application documents,” Johnson had rejected UIM coverage when applying for insurance with First Acceptance.-

In response to First Acceptance’s submission in support of its summary-judgment motion, Johnson argued that Thomas’s affidavit was based on hearsay, was not based on her personal knowledge, and contradicted certain portions of her deposition testimony, discussed infra. Johnson sought to strike the affidavit for that reason, among others.

Johnson submitted Thomas’s September 25, 2015, deposition in support of his response to First Acceptance’s summary-judgment motion. In her deposition, Thomas described the procedure by which she assisted applicants for insurance and the training she had received. Thomas testified that she did not recall assisting Johnson with his December 21, 2012, application for insurance, that she would not recognize Johnson if she saw him, and that someone with the legal department for First Acceptance informed her that she was the agent who- had assisted Johnson. Thomas testified that, although her affidavit stated that she had reviewed the documentation in Thomas’s file in concluding that she had assisted him,-she had not, in fact, reviewed those documents before she executed the July 29, 2015, affidavit. Thomas reviewed those documents during her deposition and was questioned about them during that deposition. During her deposition, First Acceptance’s attorney asked Thomas if “everything” in her affidavit was true, and Thomas answered that it was.

In his deposition, Johnson testified that he did not recall who had assisted him in applying for the insurance policy on December 21, 2012, but that, it had been a woman. He stated that, in applying for insurance coverage with First Acceptance* he had asked for “full coverage” and that he did not intend to reject UIM coverage. Johnson testified that nobody reviewed with him the form on which he purportedly rejected the UIM coverage. Johnson testified that the person who assisted him in applying for the insurance coverage had worked on a computer, but he denied that he had made any notation using a computer indicating that he wanted to reject UIM coverage.

Johnson argues on appeal that the trial court erred in denying his motion'to strike portions of Thomas’s affidavit sub-’ mitted in support of First Acceptance’s summary-judgment motion. Rule 56, Ala. R. Civ. P., which governs summary judgments, provides, in pertinent part:

“Supporting ■ and opposing affidavits shall be made on personal knowledge, .shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith, ...”

Rule 56(e).

Thomas testified in her affidavit that she had reviewed the documents pertaining to Johnson’s insurance application before she executed the affidavit purportedly based upon her own knowledge. However, Thomas’s deposition testimony was that she had not actually reviewed those documents before she executed the affidavit; during that deposition, she later stated that she was unsure whether she had reviewed the documents before she executed her affidavit. Regardless, during her deposition, Thomas affirmed, that “everything” in the affidavit was truthful. We assume,, given the totality of.her deposition testimony, that by agreeing that “everything” was truthful Thomas was referring to the substance of that affidavit; her testimony had already established that she had not reviewed the insurance-application documents. Thus, it appears that Thomas was affirming, based on, her review of the documents during her deposition, that the testimony she provided in the affidavit was accurate. Accordingly, any error the trial court arguably made in denying the motion to strike was harmless because Thomas reaffirmed the substance of her affidavit in her deposition testimony. See Rule 45, Ala. R. App. P.

The evidence First Acceptance submitted in support of its summary-judgment motion indicated that it had in place a procedure by which applicants for insurance coverage could electronically sign the insurance applications. First Acceptance, through the testimony of Thomas, also presented evidence tending to indicate that Thomas had properly assisted Johnson in applying for insurance coverage and that, by virtue of Thomas’s testimony that she always properly followed the procedure for assisting applicants in applying electronically for insurance coverage, Thomas had not electronically signed that part of the insurance application that waived UIM coverage.

However, Johnson testified that nobody at First Acceptance reviewed with him that part of the application pertaining to UIM coverage, that he had not selected a font for signing electronically, and that he had not noted on a computer any indication that he wanted to decline UIM coverage. Johnson’s testimony that he did not electronically sign that part of the insurance application that waived UIM coverage creates a factual dispute about the material issue in this action, i.e., whether Johnson signed that part of the application that waived UIM coverage. Accordingly, we conclude that the trial court erred in entering a summary judgment in favor of First Acceptance. We therefore reverse the judgment and remand the cause for further proceedings. • :

REVERSED AND REMANDED.

Pittman, Thomas, Moore, and Donaldson, JJ., concur.

      . In his original complaint, Johnson misidentified the defendant, but he later amended his complaint to set forth First Acceptance’s correct name.

        . To the extent that Johnson does develop his purported argument on this issue, he cites authority from another jurisdiction that supports a conclusion that an electronic signature may validly waive UIM coverage. He cites that authority, -however, as part of his contention that there must be evidence that the electronic signature is valid; that argument is a part 'of his remaining arguments on appeal that are addressed in the remainder of this opinion.

      . In its brief, First Acceptance argues that, although she denied that she recalled .reviewing those documents before executing her affidavit, Thomas testified that she must have done so. In asserting that argument, First Acceptance cites Thomas's testimony in which she stated, in response to a question whether she had reviewed that part of the insurance application that contained Johnson's purported electronic signature waiving UIM coverage: ; ...
      “I had to have looked at it.. I'm—I’m— I’m just being honest, I'm not sure if—I’m not sure, you know, if I actually saw the documents, I don’t know, because it’s been a while, but—”
      Thomas’s testimony that she "had to have” looked at that one part of the insurance application, however, is clearly speculation and is not based on her personal knowledge. Sooudi v. Century Plaza Co., 622 So.2d 1275, 1278 (Ala. 1993)("Affidavits must contain statements based upon the personal knowledge of the affiant, and mere speculation and state-' ments of subjective beliefs are not the equivalent of personal knowledge.”).

      . We note that, as part of its argument, First Acceptance contends that Johnson's claim that he did not electronically sign that part of the application declining UIM coverage is inconsistent with Johnson’s position that he had insurance coverage with First Acceptance. First Acceptance contends that Johnson would be required to sign, either manually or electronically, the insurance application in order for it to issue an insurance policy. We note that it is undisputed that Johnson did not manually sign a paper application, and Johnson’s statements that he did not use the computer to electronically sign anything tends to indicate that he also disputes having electronically signed the insurance application. Therefore, First Acceptance argues that because Johnson disputes signing the'insurance application, there could be no valid insurance contract between First Acceptance and Johnson. First Acceptance relies upon a statement in a footnote in Bonck v. White, 115 So.3d 651 (La. Ct. App. 2013). In that case, the insurance applicant disputed that she had electronically signed a form on an insurance application that waived UIM coverage. As part of her argument, the applicant argued that her name had been misspelled on that form and, therefore, that someone else must have completed it. The Louisiana court rejected that argument, noting that the applicant's name was also misspelled oñ the insurance application itself, which the applicant had completed herself online, and concluding that ”[i]f we were to embrace her argument,. Ms. Bonck would have no insurance at all.” Bonck v. White, 115 So.3d at 652 n. 2, We do not necessarily agree with that dicta from the Louisiana court. Regardless, in this case, it does not appear from the briefs, and there is no indication in the record, that First Acceptance is attempting to avoid liability under the insurance contract because Johnson disputes having electronically signed the UIM form in the insurance application. Further, First Acceptance has not addressed any effect of its acceptance of insurance premiums from Johnson on its argument that there might be no valid contract between First Acceptance and Johnson.


author: PER CURIAM. THOMAS, Judge, MOORE, Judge,

text:
    Keevis D. WATKINS v. Brianne Claire LEE
    2150748
    Court of Civil Appeals of Alabama.
    January 6, 2017

      Buddie R. Brown, Jr., Decatur, for appellant.
    Julia Smeds Roth of Eyster, Key, Tubb, Roth, Middleton <& Adams, LLP, Decatur, for appellee.
   PER CURIAM.

Keevis D. Watkins (“the father”) appeals a judgment of the Morgan Circuit Court (“the trial court”) granting a petition to establish paternity, custody, visitation, and child support that had been filed by Brianne Claire Lee (“the mother”) regarding the parties’ son and daughter (hereinafter referred to collectively as “the children”), who were born out of wedlock on October 12, 2007, and June 17, 2009, respectively. The mother also has an older daughter from a different relationship (“the mother’s daughter”). On appeal, the father challenges only one aspect of the trial court’s judgment, namely, a provision permitting the mother to refuse the father’s visitation if she believes that he is under the influence of drugs or alcohol or that he is placing the children in an unsafe environment or a place of danger (“the refusal provision”). We affirm.

Background

The mother filed her verified petition on May 6, 2014. Acting pro se, the father answered the mother’s petition, and, after the trial court had ordered him to submit to genetic testing to establish his paternity of the children, the father later waived his right to undergo that testing and admitted his paternity; the trial court thereafter entered an order establishing the father’s paternity. After obtaining representation, the father filed an amended and verified answer and participated in discovery; however, the trial court later granted the father’s attorney’s motion to withdraw, and the father thereafter continued to defend against the mother’s petition pro se.

The trial court conducted a trial on April 5, 2016, at which the mother, the father, and a private investigator who had been hired by the mother’s attorney (“the private investigator”) testified. On May 4, 2016, the trial court entered a judgment awarding the mother sole physical and legal custody of the children and including, among other things, the refusal provision. Regarding the father’s visitation generally, the trial court stated: “The parties can mutually agree upon the visitation with the father, but if they cannot, the Morgan County visitation schedule ... shall govern.” With the assistance of a new attorney, the father then filed a “motion for a new trial” on May 25, 2016, in which he argued that the refusal provision could impermissibly allow the mother to withhold visitation from the father based on her subjective beliefs that might not.be supported by “any real proof.” The trial court denied the father’s postjudgment motion on June 10, 2016, and the father filed a notice of appeal that same day.

Analysis
“‘“The trial court has broad discretion in determining the visitation rights of a noncustodial ■ parent, and its decision in this regard will not be reversed absent an abuse of discretion.”' Carr v. Broyles, 652 So.2d 299, 303 (Ala. Civ. App. 1994). In exercising its discretion over visitation matters,- “ ‘[t]he trial court is entrusted to balance the rights of the parents with the child’s best interests to fashion a visitation award that is tailored to the specific facts and circumstances of the individual case.’” Ratliff v. Ratliff, 5 So.3d 570, 586 (Ala. Civ. App. 2008)(quoting Nauditt v. Haddock, 882 So.2d 364, 367 (Ala. Civ. App. 2003)(plurality opinion)). A noncustodial parent generally enjoys “reasonable rights of visitation” with his or her children. Naylor v. Oden, 415 So.2d 1118, 1120 (Ala. Civ. App. 1982). However, those rights may be restricted in order to protect children from conduct, conditions, or circumstances surrounding their noncustodial parent that endanger the children’s health, safety, or well-being. See Ex parte Thompson, 51 So.3d 265, 272 (Ala. 2010)(“A trial court in establishing visitation privileges for a noncustodial parent must consider the best interests and welfare of the minor child and, where appropriate, as in this case, set conditions on visitation that protect the child.”). In fashioning the appropriate restrictions, out of respect for the public policy encouraging interaction between the noncustodial parents and their children,' see Ala. Code 1975, § 30-3-150 (addressing joint custody), and § 30-3-160 (addressing Alabama Parent-Child Relationship Protection Act), the trial court may. not use an overbroad restriction that does more than necessary to protect the children. See Smith v. Smith, 887 So.2d 257 (Ala. Civ. App. 2003), and Smith v. Smith, 599 So.2d 1182, 1187 (Ala. Civ. App. 1991).’
“[Pratt v. Pratt,] 56 So.3d [638,] 641 [ (Ala. Civ. App. 2010) ].”

B.F.G. v. C.N.L., 204 So.3d 399, 404-05 (Ala. Civ. App. 2016).

As mentioned above, the father argues only that the trial court abused its discretion by including the refusal provision in its judgment without specifically defining the circumstances under which the mother can withhold visitation' from the father. The only case the father has- cited in the argument section of his appellate brief is H.H.J. v. K.T.J., 114 So.3d 36 (Ala. Civ. App. 2012), in which this court reversed a particular portion of a trial . court’s judgment that had effectively permitted a child to decide whether his father could exercise visitation. Noting that “the father ha[d] made some efforts to repair his, relationship with the child, that the child was responding, and that the child was willing to try to have a relationship with the father,” we concluded that “[ajllowing the child to determine the timing of visitation with the father would not, given the facts, be in the child’s best interests.” Id. at 44.

In response, the mother asserts the following in her appellate brief:

•“[The mother] understands that visitation with the [fjather is a fundamental right to the [f]ather, However, the [trial c]ourt can have restrictions on visitation but those restrictions must be tailored to meet the child’s interests. Jackson v. Jackson, 999 So.2d 488 (Ala. Civ. App. 2007). The [c]ourts have allowed restrictions if the parent’s conduct would endanger the child, if the parent has a history of neglecting or ignoring the child, violations of prior court orders regarding visitation or other good reasons relating to the welfare of the child may justify restrictions on the parent’s visitation with his or her child. [1 Judith S. Crittenden & Charles P. Kindregan, Jr.,] Alabama Family Law[ § 13:3] (2016).”

In its judgment, the trial court set out specific findings “as to why joint custody should not be granted,” several of which could also have been relevant to its inclusion of the refusal provision:

“(d) There is a history of domestic violence in the parties’ home when they lived together.
“(e) There is a potential for kidnapping with respect to the father’s threat of moving ‘far, far away’ and the. father’s checking the children out of school without notifying the mother regardless of who is exercising visitation at that time. «
“(g) The father’s testimony before this court revealed he was more interested in his needs and wants than he was in the children’s welfare.”

The refusal provision specifically provides:

“The mother has the right to refuse visitation of the father if, in her judgment, (1) the father appears to be under the influence of drugs or alcohol, or (2) the father appears to be placing the children in an unsafe environment or to be placing them in a place of danger.”

As previously stated, the father appeared pro se at the trial. After the mother had presented her..case-in-chief, the trial court allowed the father to testify regarding any matter that he wished to address; much of the mother’s testimony was generally disputed by him. The .mother testified that she and the father had lived together from 2007 until 2013. Before they had begun living together, the father had been convicted of selling cocaine and had been incarcerated for two years. Regarding the children’s health and safety while in the father’s care, the mother specifically testified regarding a burn that the son had suffered on his arm and provided photographic evidence of the injury. She also noted that she had requested and obtained a pendente lite order from the trial court preventing the father from taking the children from Alabama. She offered the following explanation for that request:

“[The mother]: ... I had picked [the children] up from school one day, and the principal came to my car and asked if we were moving. I said, no, I’m not moving. I said, their dad might be moving. And they told me that [the son] told his teacher that he was moving far, far away. So I told the principal, no, they’re not leaving this school. We drove off and I asked [the son] T said, why did you tell your teacher that, and hé said that his dad told him that they were moving and he wasn’t going to go to that school any longer.”

The mother further testified that, while the parties were living together, there had been several incidents of domestic violence between her and the father and that the police had been involved “several times.” During the father’s cross-examination of the mother, the following exchange took place between the mother and the trial court:

“[The trial court]: ... The question is, why do you think he’s not a good father?
“[The mother]: The lifestyle he lives.
“[The trial court]: Which involves?
“[The mother]: Hanging out, he acts like [the son] is his homeboy, and they ride around the streets. He has done drugs in the past. I am going to say I believe he still smokes marijuana and drinks. Yeah, I might have an occasional drink, but I don’t drink to the extent he does. The people he hangs out with I feel like are not people my kids need to be around.”

The father also offered the following relevant testimony upon direct examination by the mother’s attorney:

“[The father]: When I got out of prison I went to Texas and helped them move back to Decatur, Alabama and resided because [the mother] had told me that [the mother’s daughter] was mine. I became a man, stepped up, and I raised her until she became 12 years old, and on her 12th birthday [the mother] came to me and said I have something to tell you. [She] is not yours. That’s when everything started going downhill, you know, with the fighting and arguing. I was hurt. You raise a kid for so long and all of a sudden one day everything is tooken from you. How you going to feel? You going to be happy about that situation when nobody never told you thank you, I appreciate it. First thing out of her daughter’s mouth is[:] You ain’t my daddy no more. You ain’t got to do to this, you ain’t got to do that. That hurt me. That’s where a lot of that domestic violence comes in. We argued a lot about it. I drunk pretty heavily about it because I was hurt. I was trying to find comfort. I drunk real heavy when this happened.
“[The mother’s attorney]: Used marijuana?
“[The father]: Back when I was in my— before I went to prison.
“[The mother’s attorney]: Did you use marijuana when you were with [the mother]?
“[The father]: No, ma’am, I didn’t. I drunk. I drunk beer. I managed the girl’s softball for seven years.”

The father also offered the following relevant testimony during his ease-in-chief:

“[The father]: And I—not only am I going to hurt if I can’t continue to see my kids, my kids are going to hurt, you know, because they used to us sitting in the park all day. It hurt, man. You know, to sit up here and after I have to sit here and fight for your kids and you know what you do. I’m going to hold back, and I ain’t going to sit here and cry. I’m going to try not to but it hurts, you know, to sit here and have to ....
“[The father on learning that the mother’s daughter was not his child]: You know, years ago I couldn’t talk about it when it happened but now I’m able to talk about it, but it hurts a little bit. But I can’t let it keep me down because I’ve got two that I got to keep going for. That’s all. I just don’t want my kids tooken from me. ii
“[The father]: I’m going to tell you the truth. I don’t know what’s going to happen if you take my kids from me, you know, because they’re my world.
“[The mother’s attorney]: I assume you deny using any drugs in your home since you’ve had custody of the children?
“[The father]: Correct.”

Finally, the private investigator testified that he had smelled “a strong odor of marijuana emitting from the inside the [father’s] apartment” when he had served him with the mother’s petition in May 2014. He stated that he had recognized the odor from his “years of law enforcement.” When asked during cross-examination by the father whether the smell could have been emanating from a different apartment, the private investigator testified that he did not believe so “[b]ecause the odor was strong enough to be coming from the door right there where [he] approached it.”

In light of the evidence presented regarding the parties’ history of domestic violence, the father’s past exposure to drugs, the incident in which the son had been burned, the possibility that, the father had planned to relocate with the children, the manner in which the father had treated the son, and the father’s recent marijuana use, the trial court could have reasonably concluded that, based on the particular facts and circumstances of this case, including the refusal provision in its judgment was a narrowly tailored means of preserving the father’s rights and serving children’s best interests by protecting their health and safety. We also note, however, that the trial court’s conclusion could have also been based, in part, on the father’s testimony regarding the manner in which he had reacted to learning that the mother’s daughter was not his child, namely, that he had begun to drink alcohol heavily and that doing so had contributed to domestic violence between the parties. The father’s testimony would support the conclusion that he cares a great deal about the children and that an award of sole physical custody to the mother might also deeply affect him emotionally. The trial court could have therefore intended for the refusal provision to provide additional protection for the children in the event that the father began to abuse alcohol. In light of the evidence presented, we cannot conclude that the trial court’s determination in that regard was unreasonable.

In his appellate brief, the father expresses concern that the refusal provision could allow the mother to withhold his visitation if she is “mistaken, or vindictive.” He also contends that she is now the “sole determiner of visitation” and asserts that he “has no say so on this, neither does the [c]ourt system.” We first note that the trial court’s judgment allowed the parties to reach an agreement regarding the father's visitation and, if they are unable to, do so, provided scheduled visitation for the' father. Thus, we reject his contention that the mother has been delegated with absolute authority to determine his visitation. Second, we note that the mother testified that she wanted the father to have regular visitation and that no evidence was presented indicating that she would vindictive-' ly withhold visitation from him. Therefore, the father’s concerns in that regard are speculative in nature, and the trial court would be the proper forum to address such concerns if and when they come to fruition.

The dissent concludes that the refusal provision violates the father’s visitation rights and cites Ex parte Thompson, 51 So.3d 265, 272 (Ala. 2010); Hardy v. Weathers, 56 So.3d 634, 635 (Ala. Civ. App. 2010); Pratt v. Pratt, 56 So.3d 638, 643 (Ala. Civ. App. 2010); Carr v. Broyles, 652 So.2d 299, 303 (Ala. Civ. App. 1994); Naylor v. Oden, 415 So.2d 1118, 1120 (Ala. Civ. App. 1982); and In re A.L.E., 279 S.W.3d 424, 427 (Tex. App. 2009), in support of its position. '

However, as noted above, and despite their relevance to his appeal, the father, has not preferred this court to any of the authorities upon which the dissent relies in reaching its conclusion. Indeed, the father has not' cited any authority discussing limitations on a custodial parent’s discretion to deny a noncustodial parent’s visitation. Inasmuch as the father relies upon H.H.J., supra, for the proposition that a court cannot vest a custodial parent with the power to be the “sole determiner” of visitation, we note that H.H.J. does not stand-for-that proposition because that issue was not before this court in that case. See Ex parte Professional Bus. Owners Ass’n Workers’ Comp. Fund, 867 So.2d 1099, 1101 (Ala. 2003)(“Generally, an appellate court is limited .to considering only those issues raised on appeal.”).

“‘It is not the function of the appellate courts to develop, research, and support an appellant’s arguments.’ ” Knight v. Knight, 214 So. 3d 1207, 1210 (Ala. Civ. App. 2016)(quoting M.F. v. W.W., 144 So.3d 366, 368 (Ala. Civ. App. 2013)). Furthermore,

“[i]n the absence of an argument supported by legal authority, an alleged error of law committed by a trial court is' considered ‘essentially unchallenged on appeal.’ [Walden v. Hutchinson, 987 So.2d 1109, 1120 (Ala. 2007)]. An appellant waives .the right-to appellate review of a ruling on a question of law when the appellant fails to cite any legal authority on that point as required by. Rule 28(a)(10), Ala. R. App. P. Slack v. Stream, 988 So.2d 516, 533-34 (Ala. 2008). This court cannot cure that deficiency by creating legal arguments for the appellant, see Spradlin v. Spradlin, 601 So.2d 76, 78-79 (Ala. 1992), because it is not the function of this court to perform an appellant’s legal research. City of Birmingham v. Business Realty Inv. Co., 722 So.2d 747, 752 (Ala. 1998).”

State v. Pressley, 100 So.3d 1058, 1070-71 (Ala. Civ. App. 2012)(Moore, J., dissenting). Thus, we are not inclined to reverse the trial court’s judgmént based on the authority provided by the dissent.

AFFIRMED.

Thompson, P.J., and Pittman and Donaldson, JJ., concur.

Thomas, J., concurs specially.

Moore, J., dissents.

THOMAS, Judge,

concurring specially.

-Brianne Claire Lee (“the mother”) initiated an action against Keevis D. Watkins (“the father”) in the Morgan Circuit Court (“the trial court”) requesting, among other things, that the trial court establish visitation with the parties’ two children (hereinafter referred to collectively as “the children”). Regarding that request, the trial court’s judgment awarded the father visitation and provided that

“[t]he mother has the right to refuse visitation of the father if, in her judgment, (1) the father appears to be under the influence of drugs or alcohol, or (2) the father appears to be placing the children in' an unsafe environment or to be placing them in a place of danger.”

I concur with the main opinion’s affir-mance of the trial court’s judgment for the reasons discussed therein. The dissent concludes that, by including the foregoing provision in its judgment, the trial court, improperly delegated its judicial authority to the mother and that its judgment should therefore be reversed.

I concur specially to note that, fundamentally, the provision at issue did-not provide the mother with more discretion over the father’s visitation than she would have had in its absence. In other words, there is no legal requirement that a custodial parent place his or her minor children in the care of a person that he or she believes to be under the influence of drugs or alcohol or believes would place his or her children in an unsafe environment or place of danger, even when that person is the noncustodial parent.

When such circumstances are present, it is not a competition between the custodial rights of the respective parents with which the law is concerned; its aim is rather to protect the right of the children to be free from such conditions—an entitlement to which the noncustodial parent’s visitation rights must necessarily be subordinated. See B.F.G. v. C.N.L., 204 So. 3d 399, 404-05 (Ala. Civ. App. 2016)(quoting Pratt v. Pratt, 56 So.3d 638, 641 (Ala. Civ. App. 2010))(“ ‘[Visitation] rights may be restricted in order to protect children from conduct, conditions, or circumstances' surrounding their noncustodial parent that endanger the children’s health, safety, or well-being.’ ”).

MOORE, Judge,

dissenting.

On May 4, 2016, the Morgan Circuit Court (“the trial court”) entered a judgment that, among other things, awarded Keevis D. Watkins (“the father”) visitation with A.P.W. and K.D.W. (“the children”). The judgment provides that Brianne Claire Lee (“the mother”)

“has the right to refuse visitation of the father if, in her judgment, (1) the father appears to be under the influence of drugs or alcohol, or (2) the father appears to be placing the children in .an unsafe environment or to be placing them in a place of danger.”

The father appeals from that judgment,arguing that the foregoing provision unlawfully vests the-mother-with sole discretion over his visitation with the children. A majority of the court affirms the judgment. I respectfully dissent.

Alabama law provides a noncustodial parent with reasonable rights to visitation if that visitation is in the best interests of his or her child. Naylor v. Oden, 415 So.2d 1118, 1120 (Ala. Civ. App. 1982). In this case, the trial court ordered the parties to determine the visitation schedule for the father, but established a visitation schedule for the father in the event an agreement could not be forméd, so the trial court impliedly found that visitation served the best interests of the children. Visitation rights may be restricted in order to protect children from harm. See Ex parte Thompson, 51 So.3d 265, 272 (Ala. 2010) (“A trial court in establishing visitation privileges for a noncustodial parent must consider the best interests and welfare of the minor child and, where appropriate, as in this case, set conditions on visitation that protect the child.”). In this case, the trial court received some evidence indicating that the father had abused alcohol and marijuana and that he had not informed the mother where he was residing. Based on that evidence, the trial court could have determined that it was necessary to impose visitation restrictions to assure that the father do'es not use alcohol or marijuana while visiting with the children and to assure that the visitation takes place in a safe environment.

The father complains, however, that the wording of the restriction adopted by the trial court improperly vests the mother with the power to be. the “sole determiner” of visitation. The father cites H.H.J. v. K.T.J., 114 So.3d 36 (Ala. Civ. App. 2012), for the proposition that a court cannot vest a third party with discretion over the visitation rights of a noncustodial parent. In H.H.J., the trial.court ordered visitation solely- at the discretion of the minor child. This court reversed the judgment, citing Parker v. Parker, 269 Ala. 299, 303, 112 So.2d 467, 471 (1959), which the court described as “reversing a judgment placing visitation at the discretion of the child and stating that ‘a decision as to what is best for the child’ should be made by the trial court rather than the child.” 114 So.3d at 44. The father relies on H.H.J. for the proposition that a trial court cannot authorize a third party discretion over the visitation rights of a noncustodial parent. Although not the most apt case on point, H.H.J. does support the father’s position sufficiently to constitute legal authority to support his argument that the judgment in this case should be reversed because it vests in the mother undue discretion over his visitation rights.

In Ex parte Borden, 60 So.3d 940, 943 (Ala. 2007), our supreme court explained that Rule 28(a)(10), Ala. R. App. P., requiring legal argument with citation to authorities, is intended “to conserve the time and energy of the appellate court and to advise the opposing party of the points he or she is obligated to make.” If the appellate brief adequately frames the issue presented in the appeal so that the appellate court and the opposing party can discern the argument being made against the judgment, the failure to cite “an abundance of legal authority” does not result in waiver under Rule 28(a)(10). Roberts v. NASCO Equip. Co., 986 So.2d 379, 383 (Ala. 2007). In fact, our supreme court has held that, under the foregoing circumstances, the appellate courts of this state can review the merits of an appeal even when no legal authority is cited. Kirksey v. Roberts, 613 So.2d 352, 353 (Ala. 1993) (holding that noncompliance with Rule 28 may be excused when “we are able to adequately discern the issue [the appellant] presents, in spite of his failure to present authorities in support of his claim”). In this case, the father argues at length that the restriction established in the judgment violates Alabama law by giving the mother the authority to refuse his visitation based on her discretion. The father has framed his issue in such a manner that this court can readily determine his point, and the mother has responded to that point in her brief. See Bishop v. Robinson, 516 So.2d 723, 724 (Ala. Civ. App. 1987) (explaining that an appellate court may consider an argument that is not compliant with Rule 28(a)(10) when the appellee adequately responds to the issues raised by the appellant in brief despite the noncompliance). Considering the substance of the father’s brief, my citation to additional authorities that further support his position should not be considered as constructing a legal argument for the father, as the main opinion contends. 227 So.3d at 89-90. Because the father has adequately developed his own legal argument, I cannot agree that the father has violated Rule 28(a)(10) or that the judgment should be affirmed on that “technicality.” Kirksey, 613 So.2d at 353.

As to the merits, a trial court cannot fashion a protective restriction in a manner such that it allows a custodial parent discretion over the visitation rights of the noncustodial parent. See Hardy v. Weathers, 56 So.3d 634 (Ala. Civ. App. 2010). In Hardy, the trial court ordered that visitation between the mother and the child could be gradually “ ‘phase[d] in’ ” but that the father was “ ‘vested with the authority to allow overnight visitation if he believe[d] the child to be safe and further believe[d] that overnight visitation [was] in the child’s best interest.’” 56 So.3d at 635. This court held that the trial court had improperly authorized the father, the custodial parent, to determine the visitation schedule for the mother, the noncustodial parent.

Like in Hardy, in the present case the trial court awarded a noncustodial parent visitation subject to the discretion of the custodial parent. The visitation restrictions vest in the mother the authority to deny the father visitation when it “appears” to the mother that the father is “under the influence of drugs or alcohol” or that he will be visiting with the children in an “unsafe” or “dangerous” place. As the father correctly argues, under those provisions the mother can deny the father visitation whenever she decidesthat the father is impaired or that visitation will be occurring at a place that does not meet her safety standards. In the event the mother denies the father visitation, the father could not enforce his visitation rights because they are contingent on the mother’s subjective evaluations. See B.F.G. v. C.N.L., 204 So.3d 399, 408-09 (Ala. Civ. App. 2016) (recognizing that a trial court cannot craft its visitation restriction in a manner that allows a custodial parent to deny a noncustodial parent visitation without being subject to a contempt citation). This court has consistently reversed judgments that give a custodial parent the authority to unilaterally deny visitation to a noncustodial parent based on vague and subjective discretionary standards. See Pratt v. Pratt, 56 So.3d 638, 643 (Aa. Civ. App. 2010) (collecting cases).

In her special concurrence, Judge Thomas asserts that a custodial parent has the lawful right to withhold visitation from a noncustodial parent that the custodial parent subjectively deems to be impaired or unsafe and that the visitation restriction in the present case merely reinforces that preexisting right. 227 So.3d at 90-91 (Thomas, J., concurring specially). I agree that a custodial parent has a duty to protect the safety and welfare of his or her child from an objective threat of harm, even one posed by a noncustodial parent, but the restriction in this case authorizes the mother to deny the father visitation in broader circumstances. Under the language of the restriction, the trial court has given the mother the absolute discretion, based on her purely subjective observations or conclusions, to deny the father visitation.

The main opinion asserts that it would be “speculative” to assume that the mother would arbitrarily or vindictively deny the father visitation because the mother testified that she encourages visitation between the children and the father. 227 So.3d at 89-90. However, many years of experience has led the appellate courts of this state to the conclusion that custodial parents should not be entrusted with broad discretion over the visitation rights of a noncustodial parent. See Pratt, 56 So.3d at 642-43 (“Although Alabama law originally found no problem with vesting a custodial parent with complete discretion over the visitation of the noncustodial parent, ... over time our appellate courts began to recognize that divorced parties often disagree regarding visitation matters ... and that a custodial parent should not be allowed to unilaterally limit or restrict the noncustodial parent’s visitation.”). Regardless of the present good intentions of the mother, the trial court could not give her ongoing decision-making authority over visitation between the children and the father.

“The trial court has broad discretion in determining the visitation rights of a noncustodial parent, and its decision in this regard will not be reversed absent an abuse of discretion.” Carr v. Broyles, 652 So.2d 299, 303 (Ala. Civ. App. 1994). A trial court exceeds its discretion when it delegates its judicial authority to restrict visitation to a custodial parent. Pratt, 56 So.3d at 644-45. In my opinion, the trial court in the present case exceeded its discretion in authorizing the mother to deny the father visitation as established in the judgment. Therefore, I would reverse the trial court’s judgment and remand the cause' to the trial court with instructions that it vacate the restrictions and consider other alternatives to protect the children that do not give the mother subjective authority over the visitation between the father and the children, such as requiring the father to provide current clean drug or alcohol screening results, see, e.g., In re A.L.E., 279 S.W.3d 424, 427 (Tex. App. 2009), or designating the place for visitation. See, e.g., In re Hughes, 434 So.2d 790 (Ala. Civ. App. 1983).

      . See Ex parte F.T.G., 199 So.3d 82, 86 (Ala. Civ. App. 2015)(“[U]nder present law, juvenile courts, district courts, and circuit courts have concurrent jurisdiction to adjudicate issues of parentage and to adjudicate issues of custody, visitation, and child support incidental to an adjudication of parentage.”).

      . The father implies that the private investigator’s testimony should be disregarded be-, cause, the father asserts, he was an "unqualified expert.” However, the father does not cite any authority or otherwise develop a meaningful argument in support of that implication. "When an appellant fails to properly argue an issue, that issue is waived and will not be considered.” Asam v. Devereaux, 686 So.2d 1222, 1224 (Ala. Civ. App. 1996).