author: PARKER, Justice. SHAW, Justice MURDOCK, Justice

text:
    Ex parte N.B. (In re: N.B. v. J.C.R.)
    1150708
    Supreme Court of Alabama.
    Sept. 30, 2016
    . William N. Dunn, Birmingham, for petitioner. .
    Submitted on mandamus petition only.
   PARKER, Justice.

PETITION DENIED; NO OPINION.

Stuart, Bolin, Main, Wise, and Bryan, JJ., concur.

Shaw, J., concurs specially.

Murdock, J., dissents.

SHAW, Justice

(concurring specially).

This petition for a writ of mandamus challenges whether the Shelby Juvenile Court could transfer an action—over which it had no jurisdiction—to the Shelby Circuit Court. The petitioner, N.B., initially filed a petition seeking mandamus relief in the Court of Civil Appeals, which denied the petition. Ex parte N.B., 204 So.3d 887 (Ala.Civ.App.2016) (opinion of Donaldson, J., joined by Pittman, J.). N.B. has now filed a petition for a writ of mandamus in this Court raising the same challenge.

The background facts in this case are explained in the Court of Civil Appeals’ opinion, and, for purposes of this writing, there is no need to repeat them. It is sufficient to note that the juvenile court determined that it had no jurisdiction over the action and purported to transfer it to the circuit court.

In the Court of Civil Appeals, N.B. argued that, because the juvenile court had no jurisdiction, its only option was to dismiss the case. The Court of Civil Appeals held, however, under the authority of this Court’s decision in Ex parte E.S., 205 So.3d 1245 (Ala.2015), that the juvenile court was empowered under Ala. Code 1975, § 12-11-11, to transfer the action.

I dissented in Ex parte E.S. because I believed that the issue presented in that case—whether a circuit court was required by § 12-11-11 to transfer an action over which it had no jurisdiction—was not properly presented for appellate review. In the instant case, the issue of the correct meaning of § 12-11-11 is properly before us. For the reason discussed below, I do not believe that the Code section has application in this case.

The “intent” of the legislature is expressed in the language of a statute. When the language is plain and unambiguous, then that language must be enforced as written in order to put into effect that “intent.”

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

IMED Corp. v. Systems Eng’g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992). See also Ex parte T.B., 698 So.2d 127, 130 (Ala.1997), and Ex parte Ankrom, 162 So.3d 397, 431 (Ala.2013) (Shaw, J., concurring in part and concurring in the result) (stating that when “[t]he language of [a] Code section is deary there is nothing to construe [and] no need to attempt to divine the ‘intent’ of the legislature”). However, if the language of a statute is not “plain” or is ambiguous, then we must construe it in order to determine the legislature’s intent. City of Pike Road v. City of Montgomery, 202 So.3d 644 (Ala.2015) (“Because the plain language of § 11-40-10 does not give explicit guidance on this issue, we must ascertain the legislature’s intent through other means.”); Dennis v. Pendley, 618 So.2d 688, 690 (Ala.1987) (“It is the court’s function to make clear the intent of the legislature when some degree of ambiguity is found in a statute.”); and Johnson Controls, Inc. v. Liberty Mut. Ins. Co., 160 So.3d 249, 270 (Ala.2014) (Shaw, J., dissenting) (“We ‘construe’ a statute only when it is ambiguous .... ”).

Section 12-11-11 states, in pertinent part:

“Whenever it shall appear to the court that any case filed therein should have been brought in another court in the same county, the court shall make an order transferring the case to the proper court .... ”

In my dissent in Ex parte E.S., I noted an ambiguity in § 12-11-11: “It is not immediately clear what court is ‘the court’ designated in the first clause.” 205 So.3d at 1250 (Shaw, J., dissenting).. Specifically, the use -of the definite article “the” before the word “court” indicates specificity. “The word ‘the’ is a definite article, and unlike ‘a’ or ‘an,’ that definite article suggests specificity.” 1A Norman J. Singer and J.D. Shambie Singer, Statutes and Statutory Construction § 21:16, at 36 (7th ed. 2009) (Supp. 2015-2016). As another court has explained: “‘[T]he’ is ‘[a]n article which particularizes the subject spoken of. In. construing [a] statute, [the] definite article “the” particularizes the subject which it precedes and is [a] word of limitation as opposed to [the] indefinite or generalizing force [of] “a” or “an.”’” Yellowbird v. North Dakota Dep’t of Transp., 833 N.W.2d 536, 539 (N.D.2013) (quoting Black’s Law Dictionary 1477 (6th ed. 1990)).

The use of the definite article “the” preceding the word “court” is a limitation; the Code section does not use the indefinite article “a” and state that “a court” without jurisdiction shall transfer the case, which language could be interpreted' to mean that the Code section applied to any court. See Freytag v. Commissioner of Internal Revenue, 501 U.S. 868, 902, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991) (Scalia, J., concurring in part and concurring in the judgment) (“[The Appointments Clause] refers to ‘the Courts of Law.’ Certainly this does not mean any ‘Cour[t] of Law’.... The definite article ‘the’ obviously narrows the class of eligible ‘Courts of Law’.... ”). Section 12-11-11 thus refers to a specific or particular court, but that court is not designated in the Code section. We do not, from the plain language of the Code section, know which particular court may transfer a case when it has no jurisdiction. To determine what “court” is “the court” referred to in the Code section, we must look beyond the text to determine the legislature’s intent.

In my dissent in Ex parte E.S., I discussed the prior history and use of § 12-11-11:

“What is now Ala. Code 1975, § 12-11-11, was originally enacted as § 4 of Act No. 725, Ala. Acts 1915. That entire act dealt with the transfer of a case erroneously filed in the law or equity ‘side’ of the circuit court to the proper ‘side’ of that court. When codified as part of the Code of Alabama 1940, what is now § 12-11-11 stated:
“Whenever it shall appear to any court of law or equity that any cause filed therein should have been brought in another court of like jurisdiction in the same county, the court shall make an order transferring the cause to the proper court .... ’
“Ala. Code 1940, Tit. 13, § 156.
“Although ostensibly dealing with transfers between the law and equity ‘sides’ of the circuit courts, the section was also used as a mechanism to transfer cases, in counties in which the court sat in divisions, from one division of the circuit court to another division of that circuit court in that county. See, e.g., Ex parte Central of Georgia Ry., 243 Ala. 508, 513, 10 So.2d 746, 750 (1942). This prior version of § 12-11-11 clearly applied only to the transfer of a circuit court case to another court of equal— ‘like’—jurisdiction.”

Ex parte E.S., 205 So.3d at 1250 (Shaw, J., dissenting). Thus, the Code section was used for “horizontal” transfers of cases between the law and equity sides of circuit courts or between “divisions” of those circuit courts.

Upon the adoption of the Alabama Rules of Civil Procedure, the language of Ala. Code 1940, Tit. 13, § 156, was modified to that currently found in § 12-11-11. Specifically, the Code section was altered to remove the language referring to “law or equity” and requiring a transfer to a court of “like jurisdiction.” See Appendix III, Statutes Modified, Ala. R. Civ. P. The Committee Comments state:

“The substance of this statute will still have some utility in courts coming under the rules because, in some instances, statutes require that certain cases be brought in a particular division when the circuit court or court of like jurisdiction is so divided.
“The clause deletes the phrase ‘of law or equity' which would be an inappropriate description of courts coming under the new rules, since law and equity are amalgamated in such courts.”

Appendix III, Statutes Modified, Ala. R. Civ. P., Committee Comments to Ala. Code 1940, Tit. 13, § 156 (emphasis added).

It is clear that the alterations made to the Code section—the difference between the language of Ala. Code 1940, Tit. 13, § 156, and § 12-11-11—were not intended to allow an expansion of the ability to transfer cases to courts other than circuit courts, or to allow a “vertical” as opposed to “horizontal” transfer of cases. Instead, the alterations were simply to remove the language referring to the distinction between law and equity, which language was superseded by the Rules of Civil Procedure, because there was no longer a need for a statute to allow the transfer of cases between the law and equity “sides” of the circuit court. The Code section was retained, however, because it still had a use in transferring cases between the divisions of the circuit court. That understanding of the Code section continued. As I stated in Ex parte E.S.:

“[Section] 12-11-11 has not, as far as my research reveals, ever been held to require a ‘vertical' transfer from a circuit court to a lower court. Given the history of the Code section, as recounted above, there is reason to suspect that- it was never ‘intended’ to do so.”

Ex parte E.S., 205 So.3d at 1250 (Shaw, J., dissenting) (footnote omitted).

Given the use of the limiting term “the court,” it appears that § 12-11-11 was “intended” to apply to a particular court. Given the original act from which § 12—11-11 derives and the prior interpretation and use of that act for “horizontal” transfers between circuit courts, it appears that § 12-11-11 was “intended” to allow a transfer by one circuit court lacking jurisdiction to another circuit court. The Committee Comments explaining the modifications to the Code section effected by the adoption of the Alabama Rules of Civil Procedure confirm this interpretation.

Further, I do not believe that the Code section can be said to have “intended” to allow a district court to transfer a case to a circuit court, which expands the holding of Ex parte E.S. First, the history provides that the Code section allowed a transfer of cases only to a “court of like jurisdiction,” and it was not modified with the intent to change that history. Additionally, Ala. Code 1975, § 12-11-9, which was adopted in 1975, provides that circuit courts, when they lack jurisdiction, have the power to transfer a case to district court, and vice versa. That Code section is superfluous and redundant if § 12-11-11 allows the same. In other words, if § 12-11-11 allows any court to transfer a case to any other court in that county, then why would the legislature have enacted § 12-11-9 to allow circuit courts and district courts—and only .those courts—to transfer cases- to each other? If that would already be permissible under .the purportedly much broader transfer powers of § 12-11-11, then § 12-11-9, covering the more limited transfers, would be unnecessary. There was no need to enact § 12-11-9 if § 12-11-11 allowed the same transfers. It is presumed, however, that the legislature does not enact redundant or superfluous statutes. Ex parte Uniroyal Tire Co., 779 So.2d 227, 236 (Ala.2000). Thus, I cannot conclude that § 12-11-11 allows the type of “vertical” transfers discussed in Ex parte E.S. or the Court of Civil Appeals’ decision below.

I do not believe that § 12-11-11 would allow the juvenile court in the instant case to transfer the action to the circuit court. However, the mandamus petition before this Court, while attempting to distinguish Ex parte E.S. and citing my dissent in-that case, does not present an analysis sufficient tu-allow us to hold § 12-11-11 ambiguous and thus depart from its plain meaning. For that reason, I cannot hold that the petition demonstrated a “clear legal right to the order sought”; therefore, I must concur to deny the petition. Ex parte BOC Grp., Inc., 823 So.2d 1270, 1272 (Ala.2001). I note that the Court of Civil Appeals’ decision is an opinion of two judges and that, in the future, another party may seék to have this Court reconsider it and Ex parte E.S.

MURDOCK, Justice

(dissenting).

In Ex parte E.S., 205 So.3d 1245 (Ala. 2015), I joined Justice Shaw’s dissent rejecting the use of Ala. Code 1975, § 12—11-11, as a basis for the juvenile court to transfer to a circuit court, rather than to dismiss, a petition deemed -to present a “mere-custody dispute” rather than a dependency case. In the present ease, this Court denies review of such a transfer by the trial court. Consistent with my vote in Ex parte E.S., I-respectfully dissent.

The statute upon which. Ex parte E.S. was based, § 12-11-11, has not changed since 1975. Yet, until recently (including during my tenure as a judge on the Court of Civil Appeals from 2000 to 2006) both the Court of Civil Appeals arid this Court understood that a dismissal, rather than a transfer, was the proper outcome in a case such as this. As recently as 2012, the Court of Civil Appeals explained that “‘[i]f a juvenile court determines that the child is not dependent, the court must dismiss the dependency petition.’” J.A. v. C.M., 93 So.3d 953, 954-55 (Ala.Civ.App.2012) (quoting K.C.G. v. S.J.R., 46 So.3d 499, 501-02 (Ala.Civ.App.2010), and also quoting with approval Ala. Code 1975, § 12-15-310(b), to the effect that “ ‘[i]f the juvenile court finds that the allegations in the [dependency] petition have not been proven by clear and convincing evidence, the juvenile court shall dismiss the petition’ ”), Furthermore, as this Court reiterated in 2013:

“[I]t is well established that ‘ “ ‘[u]nless expressly authorized so to do, a court has no authority to transfer a cause from itself to another court, and thereby give the other court possession of the case to hear and determine it, although the other court would have had jurisdiction of the cause if it had come to it by due process.’ 21 C.J.S. Courts § 502, p. 769....” ’ Ex parte Boykin, 611 So.2d 322, 326 (Ala.1992) (quoting Allen v. Zickos, 37 Ala.App. 361, 364, 68 So.2d 841, 843 (1953)).”

Hughes v. Branton, 141 So.3d 1021, 1027 (Ala.2013).

In accordance with the foregoing, I respectfully dissent.

      .
      "I do not believe that E.S.’s application for rehearing contained sufficient argument or authorities to explain and support the contention that a transfer under § 12—11— 11, and not a dismissal—the usual result when a trial court lacks jurisdiction—was required. ... Therefore, the issue whether the Court of Civil Appeals’ decision was, in light of § 12-11-11, inconsistent with this Court’s mandate was waived.”
      Ex parte E.S., 205 So.3d at 1251-52 (Shaw, J., dissenting).

      . The purpose of the plain-meaning rule—to give effect to the legislature’s words when determining its intent—is rooted in the doctrine of separation of powers: “To apply a different policy would turn this Court into a legislative body, and doing that, of course, would be utterly inconsistent with the doctrine of separation of powers." DeKalb Cty. LP Gas Co., Inc. v. Suburban Gas, Inc., 729 So.2d 270, 276 (Ala.1998). See also City of Bessemer v. McClain, 957 So.2d 1061, 1082 (Ala.2006) (Harwood, J., concurring in part and dissenting in part) (“This deference to'the ordinary and plain meaning of the language of a statute is not merely a matter of an accommodating judicial philosophy; it is a response to the constitutional mandate of the doctrine of the separation of powers set out in Art. III, § 43, Alabama Constitution of 1901 To deviate from the legislature’s plain and unambiguous language is to rewrite the statute and to exercise legislative powers’. Ala. Const. 1901, Art. III, § 43 (providing that the judicial department “shall never exercise the legislative and executive powers”).

      . In my dissent in Ex parte E.S., I suggested that the Code section was altered in the 1975 codification of the Code. Further research reveals that alteration was undertaken upon the adoption of the Alabama Rules of Civil Procedure, and first published in the 1975 Code. The entry for § 12-11-11 in Alabama Code of 1975, volume 11, fails to indicate that an alteration took place.

      . The current text of § 12-11-11 was modified by this Court's adoption of the Alabama Rules of Civil Procedure. Whether the separation-of-powers concerns that require the use of the plain-meaning rule apply in this context I leave to another day.

      .
      "It would appear that, following the merger of law and equity, the original purpose of Act No. 725, including the prior version of § 12-11-11, no longer existed. Because transfers to lower courts were covered by other Code sections, § 12-11-11 was probably retained and amended to preserve its other historical use as a means to transfer cases between divisions in the circuit courts.”
      Ex parte E.S., 205 So.3d at 1251 n. 4 (Shaw, J., dissenting).


source: Caselaw Access Project

author: DONALDSON, Judge. THOMAS, Judge,

license: Public Domain

text:
    Landon BENTLEY v. Molly BENTLEY. Molly Bentley v. Landon Bentley.
    2140707.
    Court of Civil Appeals of Alabama.
    April 22, 2016.
    Certiorari Denied Nov. 11, 2016
    Alabama Supreme Court 1150829.

      Rachel Stewart Martin, Birmingham, for appellant/cross-appellee Landon Bentley.
    Stephen R. Arnold, Birmingham, for ap-pellee/cross-appellant Molly Bentley.
   DONALDSON, Judge.

Landon Bentley (“the husband”) appeals from a judgment of the Jefferson Circuit Court (“the trial court”) divorcing him from Molly Bentley (“the wife”) insofar as it granted the wife sole legal and sole physical custody of the parties’ children and awarded the wife certain funds that the husband contends were his separate property. The wife cross-appeals from the judgment insofar as it imputes income to the wife for the purpose of determining the husband’s child-support obligation. For the reasons set forth below, we affirm the judgment.

Background

The husband and the wife were married in February 2001. Two children were born of the marriage. On March 18, 2014, the wife filed a complaint for a divorce in the trial court, citing incompatibility of temperament and an irretrievable breakdown of the marriage as grounds for the divorce. The wife requested sole legal and sole physical custody of the children. She also requested that the husband be required to pay child support. The husband filed an answer and a counterclaim, in which he requested that the parties be granted joint custody of the children and that the trial court refrain from including his inherited, nonmarital assets in the marital estate. The trial court held a trial on February 2, 2015, at which it received the testimony of the parties.

The trial court entered a judgment on February 17, 2015. In the judgment, as amended by an order entered on April 24, 2015, the trial court made the following determination pertaining to the custody of the parties’ children:

“4. ... [I]t is in the welfare and best interest of the minor children of the parties ... that the care and custody and control of the ... children be ... awarded as shared custody, with the primary residence being with the [wife].
“I. Shared parental responsibility (Joint Custody) for a minor child means that both parents retain full parental rights and responsibilities with respect to their children and requires both parents to confer so that major decisions affecting the welfare of the children will be determined jointly.
“II. Both [the wife and the husband] have expressed a desire to be involved in the various activities of their minor children. These include academic, religious, civic, cultural, athletic, medical and dental activities of the minor child[ren]. [The wife and the husband] shall consult with each other prior to initiating any such activity with the minor children. [The wife and the husband] shall cooperate with one another in adjusting their schedules to assure that the children are delivered to and returned [and] both parties will consult with one another regarding all such activities.... That [the wife and the husband] will notify one another as to any conferences, programs or events relating to such activities in such a way that both parties will have an opportunity to participate in such activities of the minor children.
“HI. Should [the wife and the husband] be unable to agree on any aspect of the academic, religious, civic, cultural, athletic or medical and dental, activities of the minor children, [the wife] is hereby designated as having the primary authority and responsibility regarding the involvement of the minor children in said activities. The exercise of this primary authority is in no way intended to negate the responsibility of the parties to notify and communicate with each other as set forth hereinabove.
“5. [The husband] shall have the right to custodial time with the minor children of the parties in accordance with the following PARENTING PLAN:
“A. The first, third, and every other fifth full weekends of each month beginning the first Friday following this decree from 6:00 p.m. on Friday until the following Monday when the children are returned to school. Should the children’s school be out due to a recognized Federal holiday, teacher work shop day or unused bad weather day, [the husband] shall return the children to school that following Tuesday. (First weekend is the first full weekend, of the month and if there is a fifth Friday of a month)”

(Capitalization in original).

The trial court also divided the parties’ marital property. In the property division, the trial court included the husband’s interest in the Bentley Family Partnership (“the partnership”), an entity created by the husband’s father as a vehicle for transferring assets to the husband and his two brothers. The pertinent portion of the trial court’s judgment provides:

“25. That [the wife] is awarded Three Hundred' Thousand Dollars ($300,000.00) from [the husband’s] one-third interest of the- Bentley Family Partnership which on the date of trial had an approximate value of One Million One Hundred Thirty Three-Thousand Dollars ($1,133,00.00). [The wife] is divested from any remaining interest in said account..,. ”

The husband, his two brothers, and their father were partners in the partnership. The husband’s interest in the partnership increased after the death of his father and one of his brothers. The husband testified that his father made all contributions to the partnership but that the partnership also earned income in the form of dividends and interest. The husband testified that the partnership income attributable to his share of the partnership had been reported on his and the wife’s joint tax returns. The husband testified that he and the wife had discussed utilizing his interest in the partnership as their .retirement fund in lieu of setting up other retirement accounts. The husband testified that he had never received any distributions of funds or assets from the partnership.

The trial court also ordered the husband to pay $819 in monthly child support. The trial court acknowledged that it had considered the Form CS-41 “Child-Support-Obligation Income Statements/Affidavit” (“CS-41. income affidavit”) submitted by each party in establishing the child-support amount. In her CS-41 income affidavit, the wife stated that she earned a monthly income of $1,800. In his CS-41 income affidavit, the husband stated that he was not earning income. Because of the value of certain assets belonging to the husband, including the husband’s interest in the partnership and certain other assets that are in addition to the husband’s interest in the partnership that are not at issue in this appeal, the trial court imputed an income of $5,000 per month to the husband. Regarding the wife’s income, the trial court stated in its judgment:

“[The wife] testified her minimum monthly] expenses (some which include the children’s expenses) were [$3,230].... [The wife] saved approximately [$19,000] since the filing of the Complaint for Divorce on or about March 18, 2014, to date of trial. Therefore, the Court imputes a monthly income to [the wife] of [$3,500].
((
“,.. The child support is set pursuant to Rule 32 Child Support Guidelines, Rule of Judicial Administration^] after Court imputed income to the parties. Child Support Guideline Forms, [the wife’s] CS-41, [the husband’s] CS-41 and the CS-42, are filed in this cause.”

The wife and the husband both filed timely motions to alter, amend, or vacate various provisions of the judgment pursuant to Rule 59, Ala. R. Civ. P. In his postjudgment motion, the husband requested, among other things, that the trial court grant him decision-making authority over certain aspects of the children’s lives and that the visitation provisions of the judgment be modified to grant him additional custodial time with the children. The trial court held, a hearing on the post-judgment motions on April 13, 2015. On April 24, 2015, the trial court entered an order modifying the visitation.provisions of the judgment and the provision of the judgment relating to health insurance for the children but denying all other relief requested by the parties in their respective postjudgment motions. The husband filed a timely notice of appeal. The wife filed a timely cross-appeal.

Discussion

On' appeal, the husband challenges the trial court’s determination regarding custody of the children and the trial court’s determination that his interest in the partnership was a marital asset. On cross-appeal, the wife contends that the trial court incorrectly assigned a monthly income to her of $3,500. .

I. The Husband’s Appeal

A. Custody

The husband contends that the judgment is inconsistent because, he asserts, although the trial court concluded that “shared” custody would be in the best interest of the children, the trial court granted the wife sole legal and sole physical custody of the children. The husband also contends that the trial court’s determination to grant sole legal and sole physical custody of the children to the wife is not supported by the evidence.

The judgment provides that the parties shall have “shared parental responsibility” and granted “shared custody” of the children “with the primary residence being with [the wife].” The judgment appears to equate the terms “shared custody” and “shared parental responsibility” with “joint custody” and defines “shared parental responsibility” as an arrangement in which “both parents retain full parental rights and responsibilities with respect to their children and requires both parents to confer so that major decisions affecting the welfare of the children will be determined jointly.”

The husband correctly notes in his brief on appeal that § 30-3-151, Ala.Code 1975, a part of Alabama’s joint-custody statutes, Ala.Code 1975, §§ 30-3-150 through -157, does not contain a definition for the terms “shared custody” or “shared parental responsibility” as used in the judgment. “As we have explained before, the proper terms for custody judgments are contained in Ala.Code 1975, § 30-3-151, which became effective on January 1, 1997. See Harris v. Harris, 775 So.2d 213, 214 (Ala. Civ.App.1999).” Smith v. Smith, 887 So.2d 257, 261 (Ala.Civ.App.2003). Section 30-3-151 defines the following terms:

“(1) Joint Custody. Joint legal custody and joint physical custody,
“(2) Joint Legal Custody. Both parents have equal rights and responsibilities for major decisions concerning the child, including, but not limited to, the education of the child, health care, and religious training. The court may designate one parent to have sole power to make certain decisions while both parents retain equal rights and responsibilities for other decisions.
“(3) Joint Physical Custody. Physical custody is shared by the parents in a way that assures the child frequent and substantial contact with each parent. Joint physical custody does not necessarily mean physical custody of equal durations of time.
“(4) Sole Legal Custody. One parent has sole rights and responsibilities to make major decisions concerning- the child, including, but not limited to, the education of the child, health care, and •religious training.
“(5) Sole Physical Custody. One parent has sole physical custody and the other parent has rights of visitation except as otherwise provided by the court.”

Using the terms set out in § 30-3-151 it is apparent that the divorce judgment provides that the wife will have sole physical custody of the children, subject to the husband’s visitation rights. Furthermore, although the divorce judgment requires the parties to confer regarding major decisions affecting the welfare of .the children, the judgment gives the wife the final authority to make all major decisions when the parties cannot agree. Such a determination constitutes an order of sole legal custody. See Gallant v. Gallant, 184 So.3d 387, 403 (Ala.Civ.App.2014)(“We must agree with the father that the judgment, as modified, does not give him final authority over any aspect of the children’s lives, so the mother must now be considered the sole legal custodian of the children, subject only to the father’s limited rights under the terms of the judgment.”).

We first address the husband’s contention that the trial court’s determination that “shared” or joint custody would be in the children’s best interest is inconsistent with the trial court’s order providing for, in practical effect, sole physical custody and sole legal custody to the wife. The record does not show that the husband ever raised this point with the trial court after the entry of the divorce judgment. Although the husband’s post-judgment motion requested that he be awarded joint legal custody, he never asked the trial court to correct or clarify what he contends is an inconsistency in the judgment, nor did he ask the trial court to modify the judgment based on an allegedly inconsistent finding. “[T]he general rules regarding the necessity for post-trial motions is that, ordinarily, issues not raised before the trial court may not be raised for the first time on appeal.” Green v. Taylor, 437 So.2d 1259, 1260 (Ala.1983). Therefore, the husband’s argument regarding an alleged inconsistency in the judgment has not been properly preserved for appellate review. See Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992) (“This Court cannot consider arguments raised for the first time on appeal; rather, our review is restricted to the evidence and arguments considered by the trial court.”); see also Gotlieb v. Collat, 567 So.2d 1302, 1304 (Ala.1990) (“This Court cannot put a trial court in error for failing to ... accept arguments that, according to the record, were not presented to it.”).

The husband contends that the trial court erred by granting sole physical custody of the children to the wife. In his postjudgment motion, the husband requested a modification of the judgment only insofar as it awarded the wife sole legal custody of the children. Further, he requested in the postjudgment motion that the trial court modify the visitation provisions of the judgment to grant him additional visitation with the children. Because he failed to raise this issue in the trial court, the issue has not been preserved for appellate review. See Andrews, supra, and Gotlieb, supra.

The husband contends that the trial court erred in granting the wife sole legal custody of the children. Section 30-3-152, Ala.Code 1975, provides:

“(a) The court shall in every case consider joint custody but may award any form of custody which is determined to be in the best interest of the child. In determining whether joint custody is in the best interest of the child, the court shall consider the same factors considered in awarding sole legal and physical custody and all of the following factors:
“(1) The agreement or lack of agreement of the parents on joint custody.
“(2) The past and present ability of the parents to cooperate with each other and make decisions jointly.
“(3) The ability of the parents to encourage the sharing of love, affection, and contact between the child and the other parent.
“(4) Any history of or potential for child abuse, spouse abuse, or kidnapping.
“(5) The geographic proximity of the parents to each other as this relates to the practical considerations of joint physical custody.”

The evidence in this case was conflicting. The trial court made its custody determination after receiving ore tenus testimony of the parties.

“The presumption of correctness in a trial court’s ruling where evidence is presented ore tenus is especially applicable where, as here, the evidence is conflicting. Ex parte P.G.B., [600 So.2d 259 (Ala.1992) ]. ‘The reason for the ore ten-us rule is well-established, i.e., that the trial court had the opportunity to observe witnesses as they testified, to judge their credibility and demeanor, and to observe what this court cannot perceive from a written record.’ Dobbins v. Dobbins, 602 So.2d 900, 901 (Ala.Civ.App.1992). The perception of an attentive trial judge is especially critical in a child custody case. This court is not permitted to substitute its judgment on appeal for that of the trial court if, from the evidence, there is any reasonable inference that the trial court’s decision is correct. Jones v. Wright, 555 So.2d 1127 (Ala.Civ.App.1989).”

G.T.R. v. U.D.R., 632 So.2d 495, 497 (Ala.Civ.App.1993).

The husband directs this court to testimony showing that the husband assisted the children with their homework, that the husband sometimes transported the children to school, and that the husband loved the children. The husband also contends that the evidence fails to show that he and the wife had problems with communicating or cooperating regarding major decisions impacting the children. However, the trial court also heard testimony that the husband did not help the children get ready for school in the mornings and that, instead, he would sleep in most days, that the husband would lose his temper and yell at the children, that the husband has a history of erratic driving that resulted in the suspension of his driver’s license, that the husband was deceitful with the wife concerning his employment status and the suspension of his driver’s license, and that the husband failed to offer any monetary support for the wife and the children when the wife left the marital home.

There is sufficient evidence in the record to support the trial court’s decision, after the trial court weighed the evidence, to grant the mother sole legal and sole physical custody of the children.

B. Property Division

The husband next contends that the trial court improperly awarded the wife $300,000 from his interest in the partnership because, he contends, his ownership interest in the partnership is a part of his separate estate and because none of the funds from the partnership had been used for the benefit of the parties or the family.

“A party’s “‘separate estate” is that property over which [he or] she exercises exclusive control and from which the [spouse] ... derives no benefit by reason of the marital relationship.’ Gartman v. Gartman, 376 So.2d 711, 713 (Ala.Civ.App.1978). The separate estate of the parties in a divorce proceeding includes property owned prior to the marriage and property received by gift or inheritance during the marriage. § 30-2-51(a), Ala.Code 1975. Although marital property generally includes property purchased or otherwise accumulated by the parties during the marriage, it may also include the property acquired before the marriage or received by gift or inheritance during the marriage when it -is used, or income from it is used, regularly for the com.mon benefit of the parties during, their marriage. See § 30-2-51(a), Ala.Code 1975.
“The trial judge is granted broad discretion in determining whether property purchased before the parties’ marriage or received by gift or inheritance was used ‘regularly for the common benefit of the parties during the marriage.’ See § 30-2-51, Ala.Code 1975. Even if the trial court determines that such, property was regularly used for the common "benefit of the parties during the marriage, the determination whether to include such property in the marital assets to be divided between the parties lies within the discretion of the trial court. [Ex parte Durbin], 818 So.2d 404 (Ala. 2001).”

Nichols v. Nichols, 824 So.2d 797, 802 (Ala.Civ.App.2001).

Section 30-2-51(a), Ala.Code 1975, reads:

“If either spouse has no separate estate or if it is insufficient for the'maintenance of a spouse, the judge, upon granting a divorce, at his or her discretion, may order to a spouse an allowance out of the estate of the other spouse, taking into consideration the value thereof and the condition of the spouse’s family. Notwithstanding--the foregoing, the judge' may not take into consideration any property acquired prior to the marriage of the parties or by inheritance or gift, unless the judge finds from , the evidence that property, or income produced by the property, has been used regularly for the common benefit of the parties during their marriage.”

We first address the wife’s contention that the husband’s interest in the partnership was not conveyed to him by inheritance. The wife contends that, instead, the husband was merely a party to the partnership agreement and that the husband’s interest in the partnership came to him, pursuant to that agreement and not by gift or inheritance. At trial, however, the husband offered uncontested testimony that his father established the partnership as an inheritance vehicle for the husband and his brothers. The husband testified that only his father made any contributions to the partnership. Therefore, there is insufficient evidence to support the wife’s contention that the husband’s interest in the partnership assets was acquired by the husband other than through inheritance,

We next must determine whether the trial court could have found that the husband’s interest in the partnership, or income produced by his interest in the partnership, has been used regularly for the common benefit of the parties during the marriage. The phrase “used regularly for the common benefit of the parties during their marriage” is not defined in § 30-2-51(a). This court recently stated:

“It does hot appear from our research that the legislature or our supreme court has definitively; explained what constitutes ‘regular [use] for the common benefit of the parties during their marriage,’ However,
“ ‘ “[§ ] 30-2-51 states, that if a party does not use. his or her inheritance or gifts for the common benefit of the parties to the marriage, then the trial judge may not consider the inheritance or gifts when making a property division. Nothing in the statute states that if one party’s inheritance or gifts are used for the parties’ common benefit then the trial judge must consider the, inheritance or gifts when making the property division. In fact, the statute leaves such a determination to the discretion of the trial judge....”
“ ‘[Ex parte Drummond,] 785 So.2d [358,] 362 [ (Ala.2000) ].’
“Ex parte Durbin, 818 So.2d 404, 408 (Ala.2001).”

Vardaman v. Vardaman, 167 So.3d 342, 347 (Ala.Civ.App.2014).

The husband contends that the assets or funds held by the partnership were never used for the common benefit of the parties. The trial court made no specific finding concerning its decision to distribute funds from the partnership to the wife. The evidence supports the husband’s contention that the parties never withdrew funds from the partnership. The wife, however, contends that the evidence established that the partnership generated income from interest and dividends that created tax liabilities for the husband and the wife and that were reported on their joint tax returns and that decreased the amount of any tax refund they might otherwise have received. The wife directs this court to her testimony indicating that she paid one-half of the balance of any tax liabilities from her individual earnings. We have held that stock held solely by one party as separate property was not used for the common benefit of the parties when the dividends from that stock were automatically reinvested, the dividends were reported as income on the parties’ joint tax return, and the parties paid taxes based on those dividends. See Kreitzberg v. Kreitzberg, 80 So.3d 925, 931-32 (Ala.Civ.App.2011). The fact that a party’s separate property might create tax liabilities that are borne by both parties is not, in itself, a basis for a conclusion that the separate property was used for the common benefit of the parties.

In this case, however, both parties testified that they had treated the husband’s interest the partnership as a part of their retirement plans and that they had forgone other retirement-planning activities based on -that characterization of the husband’s interest in the partnership. The husband and the wife testified that they had established other retirement accounts while they were both employed. The husband’s retirement account had a balance of approximately $61,000, and the wife’s retirement account had a balance of approximately $60,000. The husband testified that, because his interest in the partnership could fund the parties’ retirement, the parties ultimately decided to forgo contributing to their other retirement accounts. This testimony was not controverted. Under cross-examination from the wife’s attorney, the husband testified as follows:

“Q. You had conversations early on during the years of your marriage, conversations with your wife about that being yours and hers retirement and security for the future.
“A. Yes.
“Q. For a period of time, did you forgo contributing to an individual retirement account or a 401(k) account because you had the'family partnership to rely on for retirement?
“A. Not solely for that reason, but yes.
“Q. That was at least a part of it?
“A. Yes.
“Q. So but for your reliance, had you contributed earlier, theoretically you could have more funds in retirement, couldn’t you?
“A. Theoretically, I suppose.”

The husband also testified under cross-examination from the wife’s attorney:

“Q. And you did talk to your wife about what you just told us today, that you look at that as a retirement fund?
“A. Yes.
“Q. And when you talked to your wife about looking at that as a retirement fund, were you assuming and hoping that you and [the wife] would still be married?
“A. Yes.”

The wife testified as follows in response to questioning from her attorney:

“Q. During the course of your marriage—just yes or no—did you and your husband have conversation relative to the future use of that account?
“A. Yes.
“Q. When approximately do you recall the first time in your marriage that you and your husband had some conversation relative to the future use of that account?
“A. Day one.
“Q. And day one, what do you recall he told you?
“A. That that was our future retirement.”

The trial court could have concluded from this testimony that the husband and the wife had agreed to treat the husband’s interest in the partnership as security for their retirement in lieu of other retirement contributions, thereby redefining what would have been an otherwise excluded inherited asset as a marital asset. It is undisputed that the husband and the wife discontinued contributing to their other retirement funds, at least in part, because of the husband’s interest in the partnership. Therefore, although the parties received no distributions from the partnership during the course of the marriage, the evidence would support a finding by the trial court that the parties’ agreement to consider the husband’s interest in the partnership as retirement security constitutes use of that property for the common benefit of the parties for purposes of § 30-2-51(a).

II. The Wife’s Cross-Appeal— Child Support

The wife argues that the trial court erred in its calculation of child support because it imputed income to her without any evidence that she was voluntarily underemployed. See Rule 32, Ala. R. Jud. Admin, (permitting income to be imputed to a parent upon a finding that a parent is voluntarily unemployed or underemployed).

The wife testified that, in 2005, she started a sewing and embroidering business. In 2007, the wife formed a business entity known as “Mollygram.” She testified that, since 2007, she worked full time in this business, which included sewing, embroidering, and consulting. She testified that her average monthly gross personal income amounted to $1,800. She contends that she was fully employed in her business and that there was no evidence offered to refute the amount of her actual gross income. She testified that her work history reveals that she has never earned more than $1,800 per month.

In the judgment, the trial court imputed income to both parties in determining the proper child-support amount. The wife correctly notes that there was no evidence establishing that she was voluntarily underemployed. However, despite the trial court’s use of the term “imputed” in determining the wife’s monthly income, our review of the record shows that the trial court apparently did not make a determination that the wife was voluntarily underemployed in reaching the determination that the wife’s income was higher than she claimed. Rather, the trial court in its judgment determined that the wife had “saved approximately $19,000 since the filing of the Complaint for Divorce on or about March 18, 2014 to [the] date of trial.” This “savings” apparently was achieved by the wife’s not withdrawing funds that had been earned from her business activities from her business bank account. Under cross-examination by the husband’s attorney, the wife testified as follows:

“Q. You have been putting some money aside, have you not?
“A. Yes, sir.
“Q. And that money shows up in your checking account?
“A. In my Mollygram checking account, yes.
“Q. Has there been a particular occasion for you to set that money aside? That’s just a yes or a no.
“A. Yes.
“Q. What has been the purpose of setting aside that money?
“A. There has been a couple of different purposes. First is the two times during our marriage that [the husband] has been without a job and the infrequency of my job and fluctuations in that income. It just made me feel better to know that there was money there in case we couldn’t pay our bills or in case anything happened that we could pay the bills and pay that, you know, by paying a salary to Molly—to me through Mollygram. And right now, it’s my nest egg. It’s just in case something were to happen with one of the girls or something were to happen to me or if I got sick that I have money set aside for that and just planning for the future.
“Q. And give the Court an estimate of what the amount of money you have been able to set aside has been.
“A. Over the last three to four years, $50,000.
“Q. How have you been able to set it aside?
“A. Just through selling my Molly-gram shirts and working for Applique Corner. And I just don’t withdraw the money.”

According to the evidence, the wife’s business account for Mollygram had an ending balance of $86,371.11 in March 2014. The December 2014 bank statement for that account shows that the final balance of $55,582. From the date of the filing of the complaint in March 2014 to the December 2014 statement, the account accrued by $19,160.89. During the period that the wife was able to accumulate those funds, the husband was paying the wife a $923 per month in child support pursuant to the trial court’s temporary order.

Additionally, the wife testified that she earned approximately $500 per week ($2,166.67 per month) for work performed for Applique Corner, that she would earn an additional $840 per month for embroidery work, that her Mollygram business earned an additional $300 per month, that Applique Corner also would pay her $10 per hour to construct sales flyers, and that she has received additional payment from Applique Corner for other ancillary work she performs for it such as making “font card books.” Despite the use of the term “imputed,” we conclude that the trial court could have determined that the wife’s testimony concerning her monthly income combined with her ability to accumulate earnings in her business account established that her monthly income amounted to $3,500. Because there is evidence to support the trial court’s judgment as to the wife’s monthly income, we affirm the trial court’s judgment as to this issue.

Conclusion

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

APPEAL—AFFIRMED.

THOMPSON, P.J., and PITTMAN, J., concur.

THOMAS, J., concurs in part and dissents in part, with writing, which MOORE, J., joins.

CROSS-APPEAL—AFFIRMED.

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

THOMAS, Judge,

concurring in part and dissenting in part as to the appeal.

Although I concur in those portions of the main opinion affirming the custody award and the child-support award, I dissent from that portion of the opinion affirming the determination that the interest of Landon Bentley (“the husband”) in the Bentley Family Partnership (“the partnership interest”) is marital property subject to division. Based on my review of the evidence presented at trial, I cannot conclude that the evidence supports a determination that the partnership interest, or income derived from it, was “used regularly for the common benefit of the parties during their marriage” as required by Ala. Code 1975, § 30-2-51(a).

Section 30-2-51(a) reads:

“If either spouse has no separate estate or if it is insufficient for the maintenance of a spouse, the judge, upon granting a divorce, at his or her discretion, may order to a spouse an allowance out of the estate of the other spouse, taking into consideration the value thereof and the condition of the spouse’s family. Notwithstanding the foregoing, the judge may not take into consideration any property acquired prior to the marriage of the parties or by inheritance or gift unless the judge finds from the evidence that the property, or income produced by the property, has been used regularly for the common benefit of the parties during their marriage.”

Based on that statute and the caselaw interpreting it, a trial judge may, at his or her discretion, consider property that one spouse owned before the marriage or received by inheritance or gift, during the marriage when dividing the property of the parties upon divorce only if the judge determines that the property, or income produced by the property, “has been used regularly for the common benefit of the parties during their marriage.” § 30-2-51(a); see, generally, Ex parte Durbin, 818 So.2d 404, 408 (Ala.2001); Ex parte Drummond, 785 So.2d 358, 362 (Ala.2000); Hull v. Hull, 887 So.2d 904, 908 (Ala.Civ.App.2003); and Bushnell v. Bushnell, 713 So.2d 962, 964 (Ala.Civ.App.1997). Thus, to determine that property owned by a party before the marriage or received by a party by inheritance or gift may be considered to be subject to division under § 30-2-51(a), the trial court must focus on whether the property, or its income, is used regularly for the common benefit of the parties during the marriage. See, e.g., Ex parte LaMoreaux, 845 So.2d 801, 806 (Ala.2002).

The testimony in the record establishes that the partnership interest generated no income that was used by the parties for their common benefit during the marriage. Molly Bentley (“the wife”) specifically answered “no” to- the question whether the parties had “ever actually réceive[d] anything from [the partnership interest].” The husband testified that “[t]here has never been á distribution made from [the partnership interest] to anyone'anywhere.”

The main, opinion concludes that the partnership interest is divisible under § 30-2-51(a) because the husband and the wife testified that they had intended to use the partnership interest to fund their retirement and that, as a result, the parties had not funded other retirement accounts. Thus, the majority bases its conclusion on the fact that the parties intended to use the partnership interest, or income- generated by it, in the future. I cannot agree that an intent to use an asset in the future satisfies the requirements of § 30-2-51(a).

The relevant phrase ha § 30-2-51(a) is “regularly used for the common benefit of the parties during their marriage.” Although no Alabama court has ever construed the word “used” in the context of the statute, the rules of statutory construction establish that the language used in a statute should be given its ordinary meaning. IMED Corp. v. Systems Eng’g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992) (“Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says.”). The ordinary meaning of “use” is “to put into action or service: avail oneself of: employ,” “to carry out a purpose or action by means of,” or “to expend or consume by putting to use.” Merriam-Webster’s Collegiate Dictionary 1378 (11th ed.2003).

The fact that the parties may have intended to use the partnership interest, or income derived from it, in the future is, in my opinion, not proof that the partnership interest was “used regularly for the common benefit of the parties during their marriage.” “Used” is the past tense of the verb “use,” indicating, like the phrase “during their marriage,” that the use of the separate property, or income derived from it, must have occurred during the marriage to trigger its consideration in the division of property. I note also that the statute requires “regular” use, which the wife has also not proven; because the parties did not use the partnership interest, or income derived from it, for any purpose during the marriage, it was not “used regularly.” See Hull v. Hull, 887 So.2d 904, 909 (Ala.Civ.App.2003) (discussing the term “used regularly” in the application of § 30-2-51(a)).

The evidence adduced at trial indicates that no use was made of the partnership interest, or income derived from it, during the marriage. As a result, I conclude that the partnership interest was not “used regularly for the common benefit of the parties during their marriage” as required by § 30-2-51(a) for it to be considered in the division of the parties’ property. Therefore, because I do not agree with the conclusion that the partnership interest should be considered in the division of marital property by virtue of the application of § 30-2-51 (a), I dissent from that portion of the opinion affirming the award of a portion of the partnership interest to the wife.

MOORE, J., concurs.

      . In its judgment, the trial court awarded the husband and the wife his or her individual retirement account.


author: THOMAS, Judge. MOORE, Judge, DONALDSON, Judge,

text:
    J.P. v. CALHOUN COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2150076.
    Court of Civil Appeals of Alabama.
    June 10, 2016.
    Rehearing Denied July 29, 2016.
    Certiorari Denied November 10, 2016
    Alabama Supreme Court 1151167.

      Jennifer Argo, Anniston, for appellant.
    Sharon E. Ficquette, chief legal counsel, and Karen P. Phillips, asst. atty. gen., Department of Human Resources, for ap-pellee.
   THOMAS, Judge.

J.P. (“the father”) and H.M. (“the mother”) are the unmarried parents of E.P. (“the child”) who was born prematurely on April 22, 2015. Hospital employees contacted the Calhoun County Department of Human Resources (“DHR”) to report that the mother had had no prenatal care, that the mother had uncontrolled diabetes, that the mother had tested positive for marijuana the day before the child was bom, that the child had been experiencing feeding difficulties, that the child was suffering from neonatal hypoglycemia, that the parents had displayed “lower mental functioning,” and that the mother had alleged and then denied “domestic-violence issues” to hospital employees. Amy Estell, a professional counselor employed by DHR, administered a parenting assessment and concluded that the parents “were not mentally capable of caring for this baby.”

One month later, while the child was still in the hospital, DHR filed a complaint in the Calhoun Juvenile Court in which it alleged that the child was a “dependent child” as defined by to § 12-15-102(8), Ala. Code 1975. DHR requested a pick-up order. The juvenile court appointed a guardian' ad litem for the child, an attorney for the mother, and an attorney for the father.

A shelter-care hearing was held, after which the juvenile court awarded pendente lite custody of the child to DHR. On June 29, 2015, the juvenile court ordered the father to submit to a paternity test. On June 30, 2015, the juvenile court appointed, in addition to their separate attorneys, a separate guardian ad litem for each parent. At that time, the father was 36 years old.

A dependency hearing was held on September 23, 2015. On September 24, 2015, the juvenile court entered a judgment, determining that the child was dependent, that reasonable efforts to reunite the family had failed, that placement with the parents was not in the child’s best interests, that reasonable efforts to reunite the family would continue, and that the father is the “legal and biological father” of the child. The juvenile court awarded custody of the child to DHR.

On October 7, 2015, the father filed a postjudgment motion, arguing that the evidence presented was insufficient to support the judgment. On October 15, 2015, the juvenile court entered a judgment in which it corrected certain omissions in its September 24, 2015, judgment but did not alter its determinations. On October 22, 2015, the father filed a timely notice of appeal seeking this court’s review of whether sufficient evidence supports the judgment.

“The juvenile court heard ore tenus evidence regarding dependency; therefore, its judgment is accorded a strong presumption of correctness.” A.M.W. v. A.G.M., 189 So.3d 75, 77 (Ala.Civ.App.2015).

“““[T]he trial court has the advantage of observing the witnesses’ demeanor and has a superior opportunity to assess their credibility, [and, therefore, an appellate court] cannot alter the trial court’s judgment unless it is so unsupported by the evidence as to be clearly and palpably wrong.’ ” Ex parte Farm, 810 So.2d 631, 636 (Ala.2001) (quoting Ex parte D.W.W., 717 So.2d 793, 795 (Ala.1998)). The trier of fact, and not this court, has the duty of resolving conflicts in the evidence. Ethridge v. Wright, 688 So.2d 818, 820 (Ala.Civ.App.1996).
“(“ ‘[The appellate court is not] allowed to reweigh the evidence in this case. This [issue] ... turns on the trial court’s perception of the evidence. The trial court is in the better position to evaluate the credibility of the witnesses ... and the trial court is in the better position to consider all of the evidence, as well as the many inferences that may be drawn from that evidence ....’”
“‘Ex parte Patronas, 693 So.2d 473, 475 (Ala.1997) (quoting Ex parte Bryowsky, 676 So.2d 1322, 1326 (Ala.1996)).’
“D.C.S. v. L.B., 84 So.3d 954, 961-62 (Ala.Civ.App.2011).”

F.W. v. T.M., 140 So.3d 950, 959 (Ala.Civ.App.2013).

At the time of the dependency hearing, the child had been in the custody of DHR since her release from the hospital following her premature birth. Neither parent testified or presented witnesses. Testimony presented by DHR demonstrated that, unlike healthy infants, the child had required weekly medical appointments for a suspected genetic disorder. Estell testified that the father might not remember to transport the child to her weekly medical appointments. Estell testified that the patents did not know how to care for themselves, much less a medically fragile infant; that there had been time to counsel the parents only five times since the child was born; and that the only parenting skills'that the parents had grasped were how to prepare a bottle and how to change a diaper. - As aptly noted by the child’s guardian ad litem:

“This is not a termination of parental rights; this is dependency; the state will have plenty of time to work with these parents to see if they have the ability to take care of [the child].”

When asked whether the father was able to care for the child, Estell testified that the father had displayed an inability to grasp the basic concepts of caring for an infant and that she would expect him to continue to struggle in light of the child’s complex medical needs. Estell said that the father, who had no other children, had had little time to prepare to parent the child because the mother had not known that she was pregnant during the majority of her pregnancy. Thus, through no fault of his own, the father, who had displayed appropriate effort, had been afforded neither the time to complete a series of parenting classes nor the opportunity to participate in the child’s medical appointments. Regardless, Estell testified that, until the father, successfully completed a series of parenting classes, and addressed his potential mental-health issues, she would remain, concerned- that the father was unable ‘to meet the needs of the child.

Estell testified that the father had submitted to mental-health treatment until he was approximately 21 years old and that he had once been committed to an inpatient mental-health facility for, according to the father, depression and anxiety; however, Estell testified that the. father was unsure of his diagnosis. The following colloquy occurred between the child’s guardian ad litem and Estell:

“Q. What are your concerns specifically about [the father]?-
“A, Just that he doésn’t follow through with his own mental health care at the mental- health- center; he’s missed a lot of appointments,
“Q. Now, hold on before you continue on. T think it was two appointments that he missed at mental health; correct?
“A, Two or three. And now he’s just .now starting his intake process this month.
“Q. And the only reason he was going to • mental health was because DHR asked him to?
“A. That’s correct.
“Q. That he has gone for more than 10 years, almost 20 years without any mental health treatment because he didn’t .need it?
“A. He thinks his problems are managed, like the problems he had before.
“Q. So the mental health treatment, that’s one oflyour concerns about [the father]?
“A, Uh-huh,
“Q. What aré your others?
“A. The others are the same that I said before, parenting, learning how to parent, learning about what is going on with his child, what her needs are. Because they are just learning about the genetic issue. It would have been employment, but now he’s employed apparently. My concerns about him would be no different than, the concerns about [the mother]. He still seems to have a very difficult time grasping information, retaining, he’s trying. He’s trying, I just think he still has a lot to learn. “Q. And specifically what is your cpn-cern [regarding what] would happen to this child if the child went home to him today?”

Estell answered that she was not concerned that the father would fail to feed or diaper the child. However, Estell said: “My main concern is making sure that they have retained how to care for the child.” Estell identified specific parenting responsibilities that the father had not yet retained and could not yet discharge. She said that the father did not yet know “basic things” like an infant’s developmental milestones, how to bathe an infant, how to safely install and buckle a child-restraint seat, when, to introduce certain foods, when it is safe to leave an infant alone in a room, or how to recognize when an infant needs something or is not feeling well.

The record also demonstrates that the father had displayed an inability to care for himself. The juvenile court had appointed a guardian ad litem for the father, the father had failed to keep all his counseling and medical appointments, the father did not manage his own finances, and a third party received the mother’s disability check. Estell said:

“I think they need to continue in counseling. I know that it was discussed in the [individualized-service-plan meeting] that they have recently beg[u]n working with FOCUS to work with them on specific parenting needs. I would think they would need to do that. I’m going to be addressing substance abuse with them now that FOCUS is in the home [—a]nd then for [the father] to meet all his doctor, appointments at mental health.”

Finally, we note that the-juvenile court adjudicated the child dependent as to the mother and the father and that the mother did not file a notice of appeal. Because the unmarried parents live together, it appears likely that, 'if the father had custody, the child would be left in the care of the mother when- the recently employed father is at work; thus, the child would potentially be in the care of a noncustodial parent who is unable or unwilling to parent the child. “Obviously, if a- parent is unable or unwilling to discharge his or her parental responsibilities to and for the child or the' parent’s conduct or condition is such that the parent cannot render proper care for the child, it would be in the child’s best interests to be removed from the custody of the parent.” J.C. v. State Dep’t of Human Res., 986 So.2d 1172, 1210 (Ala.Civ.App.2007). Estell said that DHR could not provide a person to be in the house for an extended period every day and that, even if DHR was present in the home for two hours “every single day,” she would still be “.very nervous” about leaving the child in the care of the parents.

The record contains ample clear and convincing evidence to support a finding that, however willing he might be, the father was simply unable to properly care for or supervise the child at the time of the adjudication of her dependency. See C.O. v. Jefferson Cty. Dep’t of Human Res., 206 So.3d 621 (Ala.Civ.App.2016)(concluding that sufficient evidence supported a finding of dependency when a mother struggled with an addiction to pain medication, had.been seen intoxicated, and was incarcerated at the time of trial); T.C. v. Y.R., 162 So.3d 920, 925 (Ala.Civ.App.2014)(con-cluding that sufficient evidence supported a finding of dependency when a parent displayed instability, frequent moves, violent romantic relationships, and refusal to submit to mental-health counseling); and Ex parte T.L.L., 597 So.2d 1363, 1364 (Ala.Civ.App.1992)(concluding that sufficient evidence supported a finding of dependency when the parents displayed a history of instability and inattentiveness to the needs of the child). Accordingly, we conclude that sufficient evidence supports the dependency judgment.

AFFIRMED.

THOMPSON, P.J., and PITTMAN, J., concur.

MOORE and DONALDSON, JJ., dissent, with writings.

MOORE, Judge,

dissenting.

This appeal arises from a judgment of the Calhoun Juvenile Court (“the juvenile court”) finding E.P. (“the child”), the child of J.P. (“the father”) and H.M. (“the mother”), dependent and denying the father and the mother custody of the child. The father appeals, arguing that the evidence does not support the judgment.

In this case, the Calhoun County Department of Human Resources (“DHR”) filed a petition asserting the dependency of the child.

“Our supreme court has declared that [the Department of Human Resources] has the burden of proving dependency by clear and convincing evidence. See Ex parte Floyd, 550 So.2d 982 (Ala. 1989); and Ex parte R.E.C., 899 So.2d 272, 279 (Ala.2004). This burden properly rests with [the Department of Human Resources] because of the fundamental constitutional right to family integrity. See Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). A state may deprive a parent of custody of a child only when a compelling governmental interest, such as the protection of the child, exists. See L.B.S. v. L.M.S., 826 So.2d 178 (Ala.Civ.App.2002); and R.S.C. v. J.B.C., 812 So.2d 361 (Ala.Civ.App.2001) (plurality opinion). Therefore, the burden should rest with the state, as the party claiming the right to interfere with the integrity of the family, to prove the existence of the compelling circumstances warranting its intrusion. See Santosky, supra.

J.B. v. Cleburne Cty. Dep’t of Human Res., 992 So.2d 34, 49-50 (Ala.Civ.App.2008) (Moore, J., dissenting). Accordingly, a juvenile court may find a child to be dependent and, on that basis, withhold custody of a child from his or her parents only if the grounds contained in Ala.Code 1975, § 12-15-102(8), are proven by clear and convincing evidence. See Ala.Code 1975, § 12-15-310(b).

DHR basically asserted that the father lacked the mental faculties to properly parent the child such that the father is “unable or unwilling to discharge his or her responsibilities to and for the child.” Ala.Code 1975, § 12-15-102(8)a.6. “[T]he law presumes that a custodial parent is fit in every respect to care for his or her children.” T.J. v. Calhoun Cty. Dep’t of Human Res., 116 So.3d 1168, 1175 (Ala.Civ.App.2013). “The law ... does not place the burden on a parent to prove his or her mental-health fitness to the State in order to sustain his or her custody rights.” Id. at 1174. The law totally, and rightfully, rejects any contention that the State can withhold custody of a child until DHR has “plenty of time to work with the[] parents to see if they have the ability to take care of [the child],” as the guardian ad litem inaptly stated. “In order for the State to intrude into the solicitude of a family and to alter the custodial rights of a parent, the State bears the burden of proving by clear and convincing evidence that the parent is unfit to care for the child.” Id. at 1175. That evidentiary standard is not lessened in any respect because the case involves “only” a dependency determination and not a permanent termination of parental rights.

“Clear and convincing evidence” is “ ‘ “[ejvidenee that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion.’”” C.O. v. Jefferson Cty. Dep’t of Human Res., 206 So.3d 621, 627 (Ala.Civ.App.2016) (quoting L.M. v. D.D.F., 840 So.2d 171, 179 (Ala.Civ.App.2002), quoting in turn Ala.Code 1975, § 6-11-20(b)(4)).

“ ‘[Tjhe evidence necessary for appellate affirmance of a judgment based on a factual finding in the context of a case in which the ultimate standard for a factual decision by the trial court is clear and convincing evidence is evidence that a fact-finder reasonably could find to clearly and convincingly ... establish the fact sought to be proved.’
“KGS Steel[, Inc. v. McInish], 47 So.3d [749] at 761 [ (Ala.Civ.App.2006) ].
“To analogize the test set out above by Judge Prettyman [in Curley v. United States, 160 F.2d 229, 232-33 (D.C.Cir. 1947),] for trial courts ruling on motions for a summary judgment in civil cases to which a clear-and-convincing-evidence standard of proof applies, ‘the judge must view the evidence presented through the prism of the substantive evidentiary burden’; thus, the appellate court must also look through a prism to determine whether there was substantial evidence before the trial court to support a factual finding, based upon the trial court’s weighing of the evidence, that would ‘produce in the mind [of the trial court] a firm conviction as to each element of the claim and a high probability as to the correctness of the conclusion.’ ”

Ex parte McInish, 47 So.3d 767, 778 (Ala.2008). The appellate court does not reweigh the evidence, but determines whether the findings of fact made by the juvenile court are supported by evidence that the juvenile court could have found clear and convincing. See Ex parte T.V., 971 So.2d 1, 9 (Ala.2007). When those findings rest on ore tenus proceedings, this court presumes their correctness. Id. We review the legal conclusions to be drawn from the evidence without a presumption of correctness. J.W. v. C.B., 68 So.3d 878, 879 (Ala.Civ.App.2011).

The evidence shows that, shortly after the birth of the child, DHR received a report from hospital staff that the father appeared to be “low functioning.” Based on that report, DHR requestéd that the father undergo a' parenting assessment. Amy Estell, a licensed professional counselor, conducted the parenting assessment. DHR did not submit' the assessment into evidence. Estell did not testify as to.the specific results of that assessment. Although Estell did testify that the father had' “struggled” to grasp some “principles,” the record contains no clear , evidence indicating that the father currently suffers from any mental deficiency.. Although Estell alluded to substance-abuse and mental-health problems, her testimony remained vague on those points and DHR did not clarify whether those problems currently affected the father,

More pointedly, the evidence does not establish that the father lacks the ability to meet the minimum requirements to adequately parent the child. The evidence suggests that the child may have a “genetic” disease requiring special medical care, but DHR presented no evidence of the specific care required or that the father necessarily would not be able to provide that care. Estell acknowledged that the father could feed the child and change diapers. Estell criticized both parents for “learning as they go,” but she admitted that many new parents-also do not know certain developmental milestones and that parents generally depend on advice from pediatricians in that regard. Estell repeatedly stated that she “had concerns” as to.whether the father could adequately parent the child; however, Estell did. not identify any specific parenting responsibility that the father could not discharge. Whatever information caused Estell “concerns,” DHR failed to elicit that information so that the juvenile court reasonably could determine whether her concerns were valid and proved the inability of the father to care for the child.

DHR charged the father with such intellectual dysfunction that he could not safely parent the child. Through its questioning of Estell it should have proven not only the existence and severity of that alleged mental disability, but also its necessary- impediment to the father’s discharge of ordinary parenting skills and to those specific parenting skills required by the special needs of the child. Estell hinted at each of those facts, but she did not disclose-any specific information' to support- her conclusory opinions.

“It must appear to all, that if the facts as they are charged, actually exist, there could be but little difficulty in establishing the same -by evidence, which would be perfectly satisfactory in its character; but that disclosed by the record, produces no such conclusion—the examination of the witnesses was evidently conducted by those unskilled in the art, or not aware of the importance of presenting' facts for the consideration of the Court, and although enough is disclosed to induce the belief that the witnesses knew more, and could perhaps have stated facts, which, if disclosed, might have established the material allegations of the bill—yet it would be highly dangerous, as well as manifestly illegal, for any Court to act on facts which might, but which have hot, been established by testimony.”

Richardson v. Richardson, 4 Port. 467, 474 (Ala.1837). Estell’s ill-defined and almost totally conclusory testimony,.the only evidence upon which the juvenile court could have rested its determination, does not satisfy our exacting standard of review.

A natural parent has a fundamental right to care for his or her'child, and the State may infringe upon that right only in cases of clear and convincing evidence of unfitness. See Santosky v. Kramer, 455 U.S. 745, 760, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). A judicial determination that a child is dependent authorizes the State to assume the parental decision-making role and to delegate the physical care of a child to third parties. That infringement upon parental autonomy and care, even if temporary, can be justified only in clear cases evincing the necessity for State intervention for the protection of the child. I join Judge Donaldson in concluding that evidence that a new parent will need to learn how to perform his or her parenting duties, that the parent may struggle while in that learning process, and that the State has some unexplained concerns about that parent does not satisfy such a high eviden-tiary and substantive standard. Hence, I dissent from the court’s decision to affirm the judgment.

DONALDSON, J., concurs.

DONALDSON, Judge,

dissenting.

I respectfully dissent. No matter how benevolent the intent, the extraordinary power of the government, acting through the judicial branch, to intrude into the parent-child relationship may be invoked only when clear and convincing evidence is presented compelling such action. Government intrusion cannot be based on speculation, conjecture, or value judgments regarding the relative worth of the parent. As we have previously explained, “a parent has a fundamental right to the custody, care, and control of his or her child and ... a parent and a child share a fundamental right to family integrity.... These rights are accorded strong constitutional protection against State interference.” M.E. v. Shelby Cty. Dep’t of Human Res., 972 So.2d 89, 102 (Ala.Civ.App.2007); see also J.C. v. State Dep’t of Human Res., 986 So.2d 1172, 1203 (Ala.Civ.App.2007)(Moore, J., concurring in the result)(“[T]he fundamental constitutional rights of the parents demand proof of dependency to assure that the parental relationship is not subjected to undue state interference.”). The erosion of fundamental rights appears to often begin with the best of intentions.

In a dependency proceeding, the evidence must clearly and convincingly establish that the child is dependent at the time of the disposition. See R.F.W. v. Cleburne Cty. Dep’t of Human Res., 70 So.3d 1270, 1272 (Ala.Civ.App.2011); see also K.B. v. Cleburne Cty. Dep’t of Human Res., 897 So.2d 379, 389 (Ala.Civ.App.2004) (Murdock, J., concurring in the result) (“[I]n order to make a disposition of a child in the context of a dependency proceeding, the child must in fact be dependent at the time of that disposition.”). In this case, the evidence indicated that the 36-year-old father had received mental-health treatment during his youth, possibly for depression and anxiety; that he had stopped receiving treatment between the ages of 18 and 21; and that he had not received treatment since that time because he felt his problems were under control. There is no evidence indicating that, at the time of the trial, the father was suffering from a mental condition that rendered him unwilling or unable to care for the child. Furthermore, there were only unsupported and unspecified “concerns” expressed by a counselor related to the first-time father’s ability to recognize age-appropriate behavior, his ability to understand the child’s unspecified medical condition, and his ability to transport the child to medical appointments that had not yet been scheduled. The record indicates that the child’s medical condition was still unknown at the time of the dependency hearing; that the parents had a plan in place to transport the child- to medical appointments; that the father knew how to hold, feed, and diaper the child; that the father could obtain age-specific information from the pediatrician; and that the father had been receiving counseling for parenting skills.

Dependency determinations are within the juvenile court’s realm of discretion only when there is substantial evidence in the record from which the juvenile court could be clearly convinced of the existence of dependency before the government usurps the parent-child relationship. When that evidence is not presented to the juvenile court, there is no discretion to be exercised and the dependency petition must be dismissed. K.C.G. v. S.J.R., 46 So.3d 499, 501-02 (Ala.Civ.App.2010). From my review of the record, the finding of dependency here was based on the child’s undetermined and unspecified medical condition and on a speculative assessment of the father’s potential strengths and weaknesses. No matter how laudable the intent, the evidence was insufficient to make a dependency finding. As such, the petition should have been dismissed, and I therefore respectfully dissent.

      .
      “We have specifically noted that, in the context of juvenile dependency orders, an order determining that a child is (or that a child remains) dependent coupled with a disposition of that child’s custody is a final judgment capable of supporting an appeal. C.L. v. D.H., 916 So.2d 622, 626 (Ala.Civ.App.2005); see also Ex parte D.B.R., 757 So.2d 1193, 1195 (Ala.1998)(holding ‘that a decision of a juvenile court finding that children were dependent and awarding temporary custody to the children’s maternal grandparents and the state, constituted a "final judgment, order, or decree” ’ (citing Potter v. State, Dep't of Human Res., 511 So.2d 190, 192 (Ala.Civ.App.1986))).”
      Marshall Cty. Dep’t of Human Res. v. J.V., 203 So.3d 1243, 1247 (Ala.Civ.App.2016).

      . Presumably due to her age, the child’s doctors were, according to Estell, "trying to narrow down if in feet she does have a genetic issue.” " The testimony presented focused on attempts to discover the specific diagnosis,

      . Estell testified that DHR had attempted to teach the father how to use a calendar and that DHR had posted signs to remind the father to brush his teeth twice per day—an extraordinary step that Estell had never before seen.

      . The main opinion states:
      "Hospital employees contacted the Calhoun County Department of Human Resources ('DHR') to report that the mother had had no prenatal care, that the mother had uncontrolled diabetes, that the mother had tested positive for marijuana the day before the child was born, that the child had been experiencing feeding difficulties, that the child was suffering from neonatal hypoglycemia, that the parents had displayed ‘lower mental functioning,’ and that the mother had alleged and then denied ‘domestic-violence issues’ to hospital employees.”
      222 So.3d at 1178, That excerpt summarizes the allegations in the dependency petition filed by DHR, most of which were not substantiated by any evidence at trial. In analyzing the evidence to determine whether it supports the judgment, I do not consider any unproven allegations in the petition.