author: DONALDSON, Judge.

text:
    Minda Garcia CHAPMAN v. Christopher CHAPMAN.
    2150222.
    Court of Civil Appeals of Alabama.
    Aug. 19, 2016.

      Thomas Logan Davis of Peoples & Davis, Birmingham, for appellant. ■
   DONALDSON, Judge.

Minda Garcia Chapman (“the wife”) appeals from a judgment of the Jefferson Circuit Court (“the trial court”) divorcing her from Christopher Chapman (“the husband”) and determining the custody of the parties’ child. The wife challenges the trial court’s judgment insofar as it (1) did not order the husband to pay child support, (2) was based on findings of fact that allegedly are not supported by the evidence, and (3) awarded attorney fees to the husband. We reverse the trial court’s judgment and remand the cause to the trial court for further proceedings consistent with this opinion.

Background

On July 31, 2013, the husband filed a complaint for a divorce alleging adultery of the wife and incompatibility of temperament as grounds. The husband stated in the complaint, among other things, that he and the wife1 were married in September 2005; that the wife had a child from a previous marriage; that one child, A.C. (“the child”), was born of the marriage in March 2008; that the. wife had committed adultery; that, while he was working in another country, the wife became pregnant by a paramour; that the wife failed to pay household bills while he was working in another country; and that the wife and the child had left the marital home to live with the wife’s páramour. He sought custody of the child and an award of attorney fees. The wife filed an answer denying the allegations in the husband’s complaint and a counterclaim for a divorce alleging that she was the primary caregiver of the child, that she was pregnant with another child, and that there was incompatibility of temperament between the parties. She also requested, among other things, sole custody of the child, subject to the husband’s visitation rights, and an award of attorney fees. The record shows that the wife gave birth to her third child in December 2013 while the divorce case whs pending.

On March 23, 2014, the trial court entered an order appointing a guardian ad litem for the child and requiring each party to pay $750 toward the, guardian ad litem’s fee. On April 2, 2014, the husband filed a motion seeking an order requiring genetic testing of the child born to the wife in December 2013. The trial court granted the husband’s motion. The husband was ordered to pay the expenses for the genetic testing. The order also required the wife to reimburse the husband should the results of the testing reveal that he was not the father of the child born in December 2013. The testing showed that the husband was not the biological father of that child.

On August 29, 2014, the trial court entered a temporary order (“the temporary order”) providing that the parties were to share joint legal custody of .the child and granting the husband “primary physical custody” of the child during the pendency of the divorce case. The trial court, however, ordered that the husband would have custody of the child during /‘the first and third full weeks of each month from 9:00 a.m. on Sunday until 8:00 a.m. the following Thursday” and that the wife would have custody of the child during “the [s]ec-ond and [fjourth weeks of each month from 3:00 p.m. on Thursday until 9:00 a.m. the [fjollowing Sunday.” The temporary order also contained provisions for the parties to exercise specified custodial periods with the child during holidays, other special occasions, and the summer. The trial court did not order either party to pay child support and ordered the husband and the wife each to pay half of the child’s expenses.

Both parties submitted a Child-Sup-pori^-Obligation Income Statement/Affidavit (“CS-41 form”) during the proceedings. On his CS-41 form, the husband stated that he had a monthly gross income of $3,120. He also stated that the child was covered by health insurance at a monthly cost to him of $204. The wife stated on her CS-41 form that she had a monthly gross income of $2,836.16. She stated that the child’s health insurance was provided through Medicaid.

The record contains affidavits from counsel for both parties that were submitted at different times during the proceedings in support of the parties’ requests for an award of attorney fees. On August 5, 2014, the husband’s attorney submitted an affidavit stating that, up to that point in the litigation, her fees in the case amounted to $13,875. The wife’s attorney stated that he had billed the wife $17,305 as of March 23, 2015. ■

The trial court held a trial on March 23, 2015, at which the husband and the wife testified. The husband testified that, although the trial court had granted him sole physical custody of the child in the témporary order, he had not exercised his right to that custody because it would have been disruptive to the child, who attended school’in Chilton County, to move to Jefferson County and to change schools. The husband testified that the wife had allowed him to keep the ‘ child only for a single weekend during the pendency of the proceedings. The husband testified that the mother of the wife’s paramour kept the child while the wife worked and that he had no means of contacting.the child when she was with the mother of the wife’s paramour. The husband testified that there were occasions when he could not get in touch with the wife.

' The husband also testified that, when he had worked in another country, he had sent money to the wife to cover household expenses for the wife, the child, and the wife’s older child who lived with the family. The husband testified that he had had to take emergency leave from his employment and return to the United States when he found out that the wife had left the marital home. He testified that, because of the wife’s failure to properly manage the family’s finances while he was in another country, he lost the marital home to foreclosure and that there were other debts that he had been required to pay due to her' mismanagement of finances.

The husband testified that he provided the child with health-insurance coverage. He testified that he paid for the child’s hair care and bought her shoes for school. He testified that he offered financial support to the wife during the pendency of the divorce proceedings but that he never actually provided- any such support. The husband testified that the temporary order required him to pay half of the child’s expenses for extracurricular activities but that he did not pay any of those expenses because the wife would not permit him to do so.

The wife testified that she lived in a two-bedroom apartment. The wife testified that the child had her own room. She testified that she was employed as a home-health nurse and that she worked from 8:00 a.m. to 5:30 p.m. on Tuesdays,- Wednesdays, and Thursdays, on Friday evenings, and half days on Saturday, The wife testified that she never declined the husband’s requests.to visit the child and that she never interfered with his attempts to communicate with the child. The wife testified that the husband never provided her with financial support for the child. She testified that she did not provide the husband with a telephone number for her paramour’s mother. The wife admitted to committing adultery. She testified that she did not allow her paramour to supervise the child alone and that her paramour never spent the night in the same house as her. The child’s report cards were admitted into evidence, and they reflected that the child was performing well in school. The report cards also showed that the child had been tardy on five occasions and had been absent six times during the prior school year. The wife testified that the child had been sick on the days that she was absent. The wife testified that she had not provided the husband with the child’s telephone number. She testified that the husband had paid for the child’s shoes, clothes, and other expenses.

On July 1, 2015, the trial court entered a final judgment of divorce, stating in pertinent part:

“3. The grounds for Divorce are due to adultery by the [wife] who moved in with another man and had a child from this man from DNA testing.
“4. The [husband] and the [wife] shall share custody and control of the [child].... Primary physical custody is hereby awarded to the [wife].
“(a) The [husband] is awarded first and third and Fifth full weeks of each month from 3:00 p.m. on Friday until 8:00 a.m., the following Monday. The [husband] is awarded every odd fifth week.
“(b) That the [husband] shall exercise physical custody from the end of school to the first day of school.
“5. Because of the shared custodial order made in this case, and the periods of physical custody exceeds the standard neither party shall be required to pay child support to the other party towards the support and maintenance of the parties’ minor child. Each party shall be responsible for and provide for the day-to-day care and support of the child(ren) during his or her respective periods of joint physical custody. The parties shall each be responsible for and pay one-half ... of the following expenses for their child(ren); provided, however, that the parties shall discuss and mutually agree in advance as to any such expense to be shared:
“(a) Day care or after-school care expenses
“(b) Extra-curricular activity expenses
“(c) School related expenses “6. All non-covered medical expenses incurred shall be paid equally (50-50) by the [husband] and the [wife] including, but not limited to, hospital, doctor, dental, orthodontic, optical care, prescription drugs and the like.
“15. That the [wife] is hereby ordered to pay attorney fees due to the adultery finding.
“16. The [wife] shall pay to the [husband’s] Attorney, Wanda Outlaw, as reimbursement for the attorney fees and expenses incurred in this case, the sum of Five Thousand 00/100 ($5,000.00) Dollars. Said sum shall be paid directly to [the] attorney of record for the [husband]. This amount does not necessarily reflect the total value of services rendered but rather represents the appropriate contribution due from the [husband] towards those services due to the adultery finding,”

On July 21, 2015, the wife filed a motion to alter, amend, or vacate the judgment pursuant to Rule 59, Ala. R. Civ. P. (“the Rule 59 motion”), arguing only that the judgment “is contrary to the evidence presented” and that the judgment “is contrary to the applicable law.” On July 27, 2015, the wife amended the Rule 59 motion to specifically challenge certain provisions of the judgment, including the custody determination, the determination not to grant child support, and the order requiring her to pay some of the husband’s attorney fees. On that same day, the wife filed a motion pursuant to Rule 52(b), Ala. R. Civ. P. (“the Rule 52(b) motion”), requesting the trial court to enter an order stating its findings of facts and conclusions of law. The trial court held a hearing on the wife’s postjudgment motions on October 6, 2015. On October 21, 2015, the trial court entered an order granting the Rule 59 motion in part and amending the judgment (“the amended judgment”), stating in pertinent part:

“4. That Paragraph 4(a) of the parties’ Final Judgment of Divorce is hereby Amended as follows:
“5. The [husband] is awarded first and third full weeks of each month from 3:00 p.m. on Friday until 8:00 a.m. the following Monday. The [wife] is awarded Second and Fourth full weeks of each month from 3:00 p.m. on Friday until 8:00 a.m. the following Monday. That the [husband] is awarded every even fifth week and the [wife] is awarded every odd fifth week.
a
“8. That all other prayers for relief are hereby DENIED.”

On the same day, the trial court also entered an order granting the Rule 52(b) motion (“the Rule 52 order”), stating in pertinent part:

“1. [The wife’s] Post-Judgment Motion to Find Facts Specifically and State Separately the Conclusions of Law Thereupon, Made Pursuant to [Alabama Rule of Civil Procedure] 52(b) is hereby GRANTED.
“2. That the Court considered the best interest of the child would be served by awarding to the [husband] and [the wife] shared custody of the child....
“3. Court based the ruling upon the following specific facts:
“a. That the [husband] had obtained work outside of the United States to earn money for the family.
“b. That the [husband] had sent this money home to [the wife],
“c. After a period of time, he could no longer get in touch with the [wife] by phone, no calls were answered by the [wife] nor were calls made.
“d. The [husband] became concerned enough about the welfare of the [wife] and his child that he took emergency leave from his job overseas to find out what had happened to them.
“e. That the [husband] found the house abandoned. He finally found his wife and child living irt a camper trailer with a man by the name of Matthew Collins.
“f. Not only was the [wife] living with Matthew Collins but was pregnant. DNA testing showed that the [husband] was not the father of this child.
“g. After the [husband] returned, he and the [wife] exchanged the child every other week.
“h. The [wife] has moved twice since the divorce action was pending.
“i. That the [wife] hit the child with the handle of a spoon and hit the child over the head with her purse.
“j. That the [husband] hit the child with a belt.
“k. That the [wife] has her boyfriend’s mother keeping the child of the parties. The [husband] exercised as many periods of physical custody as he had available.
“I. That the child had five tardies and six absences.
“m. That the [wife] did not provide the [husband] with a phone number to call the child.
“n. That the child had to sleep in the bed with [the wife] due to lack of accommodations.
a
“5. Though the Court considered the adulterous acts of the [wife] and her pregnancy by the paramour, it did not deprive her of custody instead it gave her shared custody as the parties had maintained during the pendency of the divorce. Also, the Court did consider the child’.s five tardies and six absences, sleeping in the bed with [the wife], not providing the [husband] with a number to contact the child, the number of times the [wife] moved during the pendency of the case as relevant factors in awarding custody of the child.
“6. That based on the aforementioned finding of facts the Court awarded shared custody to the [husband] and the [wife]. The court must make the findings required by Rule 32(A)(ii), Ala. R. Jud. Admin. Based on the shared custody, the Court did make the finding based on Rule 32 stated that the deviation was due to visitation being awarded to the [husband] was equal to that of the [wife] which is above the standard visitation schedule.
“a. The [husband] was awarded first and third full weeks of each month from 3:00 p.m. on Friday until 8:00 a.m. the following Monday. The [wife] was awarded Second and Fourth full weeks of each month from 3:00 p.m. on Friday until 8:00 a.m. the following Monday. That the [husband] was awarded every even fifth week and the [wife] was awarded every odd fifth week.”

The wife filed a notice of appeal to this court on December 1, 2015. On appeal, the wife contends that the trial court’s custody determination should be reversed in part because the findings of fact made by the trial court, on which that award is based, are not supported by the evidence; that the trial court committed reversible error by failing to grant her child support; and that the trial court committed reversible error by awarding the husband attorney fees. The husband did not file a brief on appeal.

Discussion

I. Custody and Child Support

The wife argues that the trial court committed reversible error by failing to order the husband to pay her child support and that the custody provisions in the judgment do not justify a deviation from the child-support guidelines of Rule 32, Ala. R. Jud. Admin.

This court has stated that “matters relating to child support ‘rest soundly within the trial court’s discretion, and will not be disturbed on appeal absent a showing that the ruling is not supported by the evidence and thus is plainly and palpably wrong.’ ” Scott v. Scott, 915 So.2d 577, 579 (Ala.Civ.App.2005)(quoting Bowen v. Bowen, 817 So.2d 717, 718 (Ala.Civ.App.2001)).

This court has also stated that

“[t]he amount of support that would result from the application of the guidelines is presumed to be the correct amount of child support. Rule 32(A), Ala. R. Jud. Admin. This presumption may be rebutted if the trial -court makes a finding of fact that, based upon the evidence presented, the application of the guidelines would be manifestly.unjust or inequitable.”

Hamilton v. Hamilton, 647 So.2d 756, 758 (Ala.Civ.App.1994). Rule 32(A)(1) provides a nonexclusive list of reasons for deviating from the guidelines, including:

“(a) Shared physical custody or visitation rights providing for periods of physical custody or care of children by the obligor parent substantially in excess of those customarily approved or ordered by the court;
“(b) Extraordinary costs of transportation for purposes of visitation borne substantially by one parent;
“(c) Expenses of college education incurred prior to a child’s reaching the age of majority;
“(d) Assets of, or unearned income received by or on behalf of, a child or children;
“(e) The assumption under the Schedule of Basic Child-Support Obligations that the custodial parent will claim the federal and state income-tax exemptions for the children in his or her custody will not be followed in the ease;
“(f) The actual child-care costs incurred on behalf of the children because of the employment or job search of either parent exceeds the costs allowed under subsection (B)(8) of this rule by twenty percent (20%) or more; and
“(g) Other facts or circumstances that the court finds contribute to the best interest of the child or children, for whom child support is being determined.”

In Flanagan v. Flanagan, 656 So.2d 1228 (Ala.Civ.App.1995), this court stated:

- “The Commentary to Rule 32 outlines three ‘assumptions’ that have been -‘incorporated in the Schedule of Basic Child Support- Obligations.’ One of those assumptions concerns the matter of ‘Visitation.’ Under that heading, the Rule 32 Comment states:
“ ‘The Schedule of Basic Child Support Obligations is premised on the assumption that the noncustodial parent will exercise customary, visitation rights, including summer visitation. Any abatement of child support because of extraordinary visitation should be based on visitation in excess of customary visitation. ’ ■ * -
“(Emphasis added.)”

656 So.2d at 1231.

“The Comment to Rule 32 states: ‘The Alabama child support guidelines do' not specifically address the problem of establishing a support order in joint legal custody situations. Such a situation may be considered by the court as a reason for deviating from the guidelines in appropriate situations, particularly if physical custody is jointly shared.by the parents.’ ”

Knight v. Knight, 739 So.2d 507, 509 (Ala.Civ.App.1999).

The --wife argues that -the trial court granted the parties joint legal custody of the child, granted her sole physical custody of the child, and granted the husband standard visitation with the child. She contends that, under that custodial arrangement, there is no basis for the. trial court to deviate from the child-support guidelines and to decline to award her child support.

After considering the arguments of the wife and reviewing the judgment, the amended judgment, and the Rule 52 order, we are unable to determine the type of custody granted to the parties. In paragraph four of the judgment, the trial court ordered that the parties “shall share custody and control of the [child]” and granted the wife “[p]rimary physical custody” of the child. The trial court stated in the amended judgment that

“[t]he [husband] is awarded first and third full weeks of each month from 3:00 p.m. on Friday until 8:00 a.m. the following Monday.- The [wife] is awarded Second and Fourth full weeks of each month from 3:00 p.m. on Friday until 8:00 a.m. the following Monday. That the [husband] is awarded every even fifth week and the [wife] is awarded every odd fifth week.”

As argued by the wife, the judgment and the amended judgment can be read as essentially ordering that the husband shall have visitation with the child every other weekend and during the summer. However, in paragraph five of the judgment, the provision in which the court stated its reasons for deviating from the child-support guidelines and for not granting child support, the trial court referred to its custody determination as a “shared custodial order.” In the same paragraph, the trial court required the parties to bear the responsibility for day-to-day expenses for the child during their “respective periods of joint physical custody.” (Emphasis added.) In paragraph five of the Rule 52 order, the trial court stated that the parties would maintain “shared custody” of the child in the same manner that they had under the temporary order. The temporary order granted the husband “primary physical custody” of the child. In paragraph six of the Rule 52 order, the trial court again stated that it had granted the parties “shared custody” of the child and that it had granted the parties equal visitation time with the child.

The judgment, the amended judgment, and the Rule 52 order contain inconsistencies and ambiguities regarding the issue of the physical custody of the child and the amount of time the husband will exercise visitation with and/or custody of the child. Because we are not able to determine the trial court’s intent regarding custody of the child, it follows that we are unable to determine whether the trial court incorrectly deviated from the child-support guidelines. Therefore, we reverse the judgment, as amended, insofar as it addresses the issues of custody and child support, and we remand the cause for the trial court to clarify its custody determination and to specify (1) whether it granted the parties joint legal custody of the child or granted the wife sole legal custody of the child, (2) whether it granted the parties joint physical custody of the child, and (3) whether it granted the husband visitation or custody every other week or weekend. See Arnold v. Arnold, 977 So.2d 501, 507 (Ala.Civ.App.2007)(reversing in part a divorce judgment and remanding the cause to the trial court to resolve a conflict in the judgment pertaining to noncovered medical expenses); Hall v. Hall, 895 So.2d 299, 305 (Ala.Civ.App.2004) (reversing a judgment in part and remanding the cause with instructions to the trial court to remove language from the judgment that was inconsistent with another provision in the judgment); and Shipp v. Shipp, 435 So.2d 1298, 1299 (Ala.Civ.App.1983)(concluding that a provision of a judgment contained “ambiguities and uncertainty” and remanding the cause for the trial court to remove the ambiguity).

We note for the trial court’s consideration in amending its judgment that, if, on remand, the trial court clarifies that its intent is to grant the wife sole physical custody and grant the husband visitation every other weekend and every other fifth weekend, the record does not contain any evidence or other basis to support a determination that such visitation is in excess of what is generally granted in conjunction with an order granting sole physical custody to the other parent.

The wife also contends that the trial court failed to take into account income that the husband earned from his employment with the Alabama National Guard. There is no indication in the record, however, that either party introduced evidence at trial concerning the husband’s purported employment with the Alabama National Guard. Thus, no reversible error is established regarding the amount of income earned by the husband.

II. Findings of Fact
“ A divorce judgment that is based on evidence presented ore tenus is afforded a presumption of correctness. Brown v. Brown, 719 So.2d 228 (Ala.Civ.App.1998). This presumption of correctness is based upon the trial court’s unique position to observe the parties and witnesses firsthand and to evaluate their demeanor and credibility. Brown, supra; Hall v. Mazzone, 486 So.2d 408 (Ala.1986). A judgment of the trial court based on its findings of facts will be reversed only where it is so unsupported by the evidence as to be plainly and palpably wrong. Brown, supra. However, there is no presumption of correctness in the trial court’s application of law to the facts. Gaston v. Ames, 514 So.2d 877 (Ala.1987).’
“Robinson v. Robinson, 795 So.2d 729, 732-33 (Ala.Civ.App.2001).”

Carnes v. Carnes, 82 So.3d 704, 710 (Ala.Civ.App.2011).

As noted above, in the Rule 52 order, the trial court found, among other things, that the husband and the wife had exchanged custody of the child every other week pursuant to the temporary order, that the husband had exercised visitation with the child as often as it was available to him, that the husband had hit the child with a belt, that the wife had hit the child with the handle of a spoon, that the wife had hit the child over the head with her purse, and that the child had had to sleep in a bed with the wife due to lack of accommodations. The wife contends that there was no evidence presented at trial to support those findings of fact. From our review of the record, we do not find support for those findings of fact.

. Regarding the finding that the husband had “exercised as many periods of physical custody as he had available” to him under the temporary order, the husband testified as follows under questioning, from the wife’s attorney:

' “[Husband], when we were here in July, you asked this Court to award you custody of your daughter ...; is that correct?
“A. Yes, sir.
“Q. And the Judge ordered [in the temporary order] a week on, week off custody with you being the primary physical custodian; is that correct?
“A. Yes, sir.
“Q. But you haven’t exercised that custodial time, have you?
■•■“A. 'No; sir.
“Q. ’Instead, you’ve left [the child] with [the wife]?
“A. Yes, sir.
“Q. You haven’t—so, would it be an accurate statement to say that you couldn’t be bothered to exercise your custodial time?
“A. It wouldn’t be fair to my daughter.”

Additionally, regarding the "trial court’s findings that both the wife and the husband committed acts of physical abuse, the record does not contain evidence that either party had hit the child. There is álso: no testimony to support the trial court’s finding that the child had to sleep in the wife’s bed due to lack of accommodations.

.We conclude that some of the trial court’s findings are, not supported by the evidence in the record. Because we are reversing the judgment, as amended, with regard .to the issues of custody and child support and remandirig the cause, we instruct the trial court to reconsider its judgment on remand without taking into account the aforementioned findings of fact that are not supported by the record.

III. Attorney Fees

In light of our decision to reverse the trial court’s judgment on the issues of custody and child support and because the judgment (including the award of attorney fees) could change upon the trial court’s reconsideration of those issues on remand, we pretermit .discussion of the wife’s argument regarding the trial court’s award of attorney fees to the husband in the amount of $5,000.

Conclusion

For the foregoing reasons, we reverse the judgment, as amended, insofar as it addresses the issues of custody and child support, and we remand the cause to the trial court to reconsider the custody and child-support provisions of the judgment and to reconsider the judgment without taking ■ into consideration the erroneous findings of fact that are unsupported by the evidence

The wife’s request for an award of attorney fees on appeal is denied.

REVERSED AND REMANDED.

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

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

      . We deem the second postjudgment motion, which was filed within the 30-day period provided in Rule 59, Ala. R. Civ. P., to be an amendment to the first postjudgment motion. Thus, the second postjudgment motion "trigger[ed] a new 90-day jurisdictional period” pursuant to Rule 59.1 for the trial court to rule. Roden v. Roden, 937 So.2d 83, 85 (Ala.Civ.App.2006). Accordingly, the trial court’s October 21, 2015, order amending the judgment was within the 90-day jurisdictional period.

      . Section 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 "primaiy physical custody.” "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). As this court stated in Richardson v. Fotheringham, 950 So.2d 339, 341 (Ala.Civ.App.2006):
      "The trial court's divorce judgment awarded the parties 'joint custody,’ yet it awarded the father ‘primary physical custody.’ 'These terms have been commonly employed by the bench and bar; however, in light of the definitions of the types of custody set out in the joint-custody statute, those older terms are unclear and ... serve only to confuse the issue of custody. Harris v. Harris, 775 So.2d 213, 214 (Ala.Civ.App.1999). Using the proper terms set out in the joint-custody statute, § 30-3-151, Ala. Code 1975, the divorce judgment can be construed only one way—that is, it awards the father sole physical custody and the mother and the father joint legal custody. See Harris, 775 So.2d at 214.”


source: Caselaw Access Project

author: MOORE; Judge.

license: Public Domain

text:
    Jerome W. HUGHES v. Valeriya M. HUGHES.
    2150257.
    Court of Civil Appeals of Alabama.
    Aug. 19, 2016.
    Dustin J. Fowler and Ellie L. Parker of Buntin, Etheredge & Fowler, LLC, Do-than, for appellant.
    Virginia R. Lucci, Montgomery, for ap-pellee.
   MOORE; Judge.

Jerome W. Hughes (“the father”) appeals from a judgment of' the Houston Circuit Court (“the trial court”) entered in a contempt action filed against1 him by Valeriya M. Hughes (“the mother”). Because we conclude that the appeal has been taken from a nonfinal judgment, we dismiss the appeal.

The parties were divorced by a judgment entered by the trial court on August 25, 2014. The divorce judgment incorporated a settlement agreement entered between the parties, which provided, among other things, that the parties would share joint legal custody of the parties’ child, that the mother would have “primary physical custody” of the parties’ child, and that the father would have specified visitation. Additionally, the settlement agreement provided that the father would pay no child support but that he would be responsible for all costs associated with the child’s private-school education. The settlement agreement further provided that each parent would give the other parent the right of first refusal if he or she anticipated the child being left with someone other than a parent for more than one night; that, if either parent would be traveling more than 100 miles from Dothan, he or she would give the other parent 48 hours’ notice of the travel plans; and that neither parent would have overnight guests of the opposite sex while exercising custody or visitation with the child.

On October 14, 2014, the mother filed a petition for a rule nisi, asserting, among other things, that the father had told her that he intended to remove the child from the state and that he had violated the parties’ settlement agreement by allowing his girlfriend to stay overnight while he was exercising his visitation with the child. The mother sought an emergency hearing and an order directing the Sheriff of Houston County to assist her in obtaining custody of the child.

On October 17, 2014, the father filed a response to the petition for a rule nisi as well as a petition for immediate temporary custody of the child. On that same date, the father filed with the trial court the affidavits of Doug Bauer, the headmaster at Ashford Academy, where the child was attending school, and Allyson Falgout, the child’s teacher at Ashford Academy. On October 28, 2014, the father filed a motion for an instanter order of temporary custody and a request for an immediate hearing; the father attached to his motion the affidavit of Jennifer Campbell, a counselor at Ashford Academy. On that same date, the trial court entered an order setting a pendente lite hearing for November 10, 2014. The father filed a “notice” to the trial court on October 30, 2014, informing the trial court that the child had been dismissed from Ashford Academy because of the behavior of the mother and her new husband; he attached to his notice a letter from Ashford Academy indicating that the child had been dismissed from the school. On November 3, 2014, the father filed a motion seeking the appointment of a guardian ad litem to represent the child’s interests; the trial court granted that motion, noting that the father would bear all costs of the guardian ad litem.

On November 9, 2014, one day before the scheduled pendente lite hearing, the father filed a notice of his intent to call witnesses at the pendente lite hearing and requested the presence of a court reporter at that hearing; the trial court entered an order denying that motion on November 10, 2014. On November 20, 2014, the trial court entered a pendente lite order, noting that all provisions in the settlement agreement of the parties that had been incorporated into the divorce judgment were to be followed unless modified by the November 20 order. The trial court also ordered the parties to complete parenting classes. It further ordered that the child was to be immediately re-enrolled at Ashford Academy, that the child was not to be withdrawn from Ashford Academy, and that the mother was to be respectful to all employees of Ashford Academy and was to follow the policies and procedures of the school at all times. The trial court ordered the mother not to direct and/or allow her new husband to speak on her behalf to employees at Ashford Academy regarding the child and further ordered the mother not to direct or influence the child to refer to the father as “Jay,” noting that the father is the child’s father and should be referred to as such. The trial court also ordered the parties “not to influence the minor child in negative ways.”

Also on November 20, 2014, the father filed a “petition for modification in opposition to notice of change of residence.” The father asserted, among other things, that the mother had informed him that she intended to move with the child to Rhode Island on December 21, 2014. The father requested sole physical custody of the child or, in the alternative, an order preventing the mother from removing the child from Alabama. The father also filed that same day a petition for a rule nisi, asserting, among other things, that the mother had failed to give the father the right of first refusal to care for the child when the child was left with third parties for more than one night, that she had failed to give the father notice when she traveled more than 100 miles from Dothan, that she had deprived the father of his Wednesday night visitation with the child on October 22, 2014, that she had had guests of the opposite sex overnight during her custodial periods with the child, and that she had made disparaging comments about the father to the child, all in contravention of the parties’ settlement agreement incorporated into the divorce judgment.

On January 14, 2015, the mother filed a motion seeking an emergency hearing following the father’s alleged arrest. The mother requested, among other things, that any visitation the child might have with the father be supervised. The mother filed an amended motion on that same date requesting the issuance of a protective order keeping the father away from the child; the mother asserted that the father would abscond with the child. On January 15, 2015, the trial court set the matter for a hearing on January 27, 2015. On February 18, 2015, the trial court entered a temporary order modifying the father’s visitation with the child, instructing that, among other things, the father’s parents were to supervise his visitation with the child and the child was not to be taken to the father’s home at any time.

On May 15, 2015, the father filed another “petition for modification in opposition to notice of change of residence.” The father asserted in his petition that the mother had informed him that she intended to move to Auburn with the child. The father sought sole physical custody of the child or, in the alternative, an order preventing the mother from removing the child from Houston County. The mother filed an answer to the father’s petition on May 28, 2015. On that same date, the mother filed a counterclaim, seeking an award of attorney’s fees from the father. The father later filed a response to the mother’s counterclaim.

On June 9, 2015, the father filed an instanter motion to vacate the trial court’s February 18, 2015, temporary order and to reinstate the original custody/visitation order. Also on June 9, 2015, the trial court set the father’s instanter motion for a hearing on June 30, 2015. On June 30, 2015, the trial court reset the hearing for July 28, 2015. The father filed a motion on June 29, 2015, seeking, among other things, a transfer of the child’s custody to the father. At the July 28, 2015, hearing, as indicated in note 2, the trial court consolidated all the different actions involving the parties into a single action. At the outset of the July 28, 2015, hearing, the trial court stated that it intended to hear the father’s petition to modify custody at that time. Both parties presented evi-denee, including testimony, at the hearing, at the end of which the trial court indicated that it was taking the case under advisement and entering an order for a 90-day trial period and noted that no final judgment was being entered in the case. On August 25, 2015, the trial court scheduled the case for a final hearing on November 3, 2015.

A proposed temporary order was submitted to the trial court on September 17, 2015, and, on September 18, 2015, the trial court entered a “temporary order” allowing the mother to move to Auburn with the child, allowing the father unsupervised visitation with the child, and modifying the father’s visitation times with the child, among other things. Following the November 3, 2015, hearing, at which the trial court declined to allow the father to submit additional evidence, the trial court entered a judgment on November 10,2015, awarding the parties joint legal custody of the child, with the mother having sole physical custody of the child. The trial court awarded the father visitation with the child three out of every four weekends per month beginning at 6:00 p.m. on Friday and ending at 6:00 p.m. on Sunday. The trial court further stated that “the court having been informed the minor child is going to public school, the [father] is to pay child support in the amount of $350.00 per month” beginning December 1, 2015. The father filed his notice of appeal to this court on December 15,2015.

“Although neither party has addressed whether this court has jurisdiction to hear this appeal, ‘jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.’ Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987). Generally, an appeal will lie only from a final judgment, and if there is not a final judgment then this court is without jurisdiction to hear the appeal. Hamilton ex rel. Slate-Hamilton v. Connally, 959 So.2d 640, 642 (Ala.2006). A judgment is not final if it fails to completely adjudicate all issues between the parties. Giardina v. Giardina, 39 So.3d 204, 207 (Ala.Civ.App.2009) (citing Butler v. Phillips, 3 So.3d 922, 925 (Ala.Civ.App.2008)).”

Sexton v. Sexton, 42 So.3d 1280, 1282 (Ala.Civ.App.2010).

In this case, the parties sought different forms of relief on several different claims. The trial court’s November 10, 2015, judgment did not adjudicate the petition for a rule nisi filed by either party, and it did not dispose of the mother’s request for an award of attorney’s fees. Although the petitions for a rule nisi were filed under different case numbers, the trial court consolidated the various actions into a single action. In Hanner v. Metro Bank & Protective Life Insurance Co., 952 So.2d 1056, 1061 (Ala.2006), our supreme court held that “a trial court must certify a judgment as final pursuant to Rule 54(b), Ala. R. Civ. P., before a judgment on fewer than all the claims in a consolidated action can be appealed.” Because the trial court both failed to rule on all the claims presented by the parties and did not certify its judgment as final pursuant to Rule 54(b), Ala. R. Civ, P., its November 10, 2015, judgment, which adjudicated fewer than all the claims in the consolidated action, is not a final judgment that will support an appeal. See Hanner, supra, and Overstreet v. Overstreet, 191 So.3d 173, 175 (Ala.Civ.App.2015) (“In the absence of a judgment disposing of the parties’ claims, there is no final judgment from which the husband can appeal.”). Accordingly, we dismiss the appeal as having been taken from a nonfinal judgment.

The “motion to strike appellee’s brief’ filed by the father is denied.

APPEAL DISMISSED.

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

      . The parties and the trial court refer to the arrangement as "primary physical custody.” Because that is an incorrect term unrecognized in Alabama law, we use the term "sole physical custody” throughout this opinion to conform to the language used in § 30-3-150 et seq., Ala.Code 1975.

      . Some of the filings in the record on appeal were made in case number DR-13-900510, case number DR-13-900510.01, case number DR-13-900510.03, or case number DR-13-900510,04. At the July 28, 2015, hearing, the parties agreed to consolidate "any and all matters” into case number DR-13-900510.02, and the trial court thereafter consolidated the cases. Because all the cases were consolidated by the trial court, in this opinion we do not identify in which case each document was filed in the trial court.

      . Although, generally, a trial court's failure to rule on a party's request for an award of attorney’s fees does not affect the finality of a judgment, see Wellborn v. Wellborn, 100 So.3d 1122, 1126 (Ala.Civ.App.2012), because there are additional claims in this case that are unresolved, the judgment is not final. See Overstreet v. Overstreet, 191 So.3d 173, 175 (Ala.Civ.App.2015).


author: THOMAS, Judge.

text:
    J.W.J. III v. ALABAMA DEPARTMENT OF HUMAN RESOURCES ex rel. T.R.
    2150563.
    Court of Civil Appeals of Alabama.
    Aug. 19, 2016.
    Margaret Y. Brown,’ Auburn, for appellant.
    Luther Strange, atty.,.gen., and.Sharon E. Ficquette, chief legal counsel*, and. Jennifer M. Bush, asst. atty. gen,,.-Department of Human Resources,.for appellee.
   THOMAS, Judge.

In October 2013, the Alabama Department of Human Resources (“DHR”) brought a contempt petition in the Lee Juvenile Court (“the juvenile court”) on behalf of T.R. (“the mother”), in which it sought to establish the child-support ar-rearage owed by J.W.J. Ill (“the father”). After several interim hearings and orders, the juvenile court held a trial on March 3, 2016, relating to the father’s expected receipt of disability benefits from which he could pay sums toward his arrearage.

The evidence at the trial indicates that the father had suffered an accident that had left him disabled. The juvenile court remarked that the father appeared to have serious health issues on the date of the trial. The father testified that he had undergone two surgeries and that he had been awarded Supplemental Security Income (“SSI”) benefits from the Social Security Administration as a result of his inability to earn any income; the father is not employed. He explained that he has been awarded $700 per month in SSI benefits and that he had received a $2,000 lump-sum payment of retroactive SSI benefits in January 2016. He explained that he would receive two additional lump-sum payments of retroactive SSI benefits: another $2,000 payment in June 2016 and a $6,000 payment in January 2017.

The juvenile court entered a judgment on March 3, 2016, in which it determined that the father’s child-support arrearage was $12,252.60 and ordered that the father pay $750 from the SSI benefits that he had already received, $750 in June 2016 after receipt of the second lump-sum installment, and $2,523 from his third, and final, lump-sum installment in January 2017. The juvenile court also ordered that the father pay $100 per month toward the arrearage out of his $700 in monthly SSI benefits. The judgment specifically states that the father must make the payments ordered or face incarceration for contempt. The father filed a timely postjudgment motion, to which DHR responded by conceding that federal law prevented the juvenile court from ordering the father to pay his child-support arrearage out of his SSI benefits. The juvenile court denied the father’s postjudgment motion, and the father timely appealed, arguing that the juvenile court’s judgment violated the anti-attachment provisions of 42 U.S.C. § 407(a).

The issue in this appeal is the same as that presented in J.W.J. III v. Alabama Department of Human Resources ex rel. B.C., 218 So.3d 355 (Ala.Civ.App.2016), decided this same day. In Alabama Department of Human Resources ex rel. B.C., we have held that an obligor parent’s SSI benefits cannot be subjected to a trial court’s order requiring them payment toward a child-support arrearage. As we explained, § 407(a) prevents the use of legal process to reach an obligor parent’s SSI benefits. 218 So.3d at 358. However, a trial court may calculate a child-support arrearage and hold hearings at which it may attempt to determine whether an obligor parent has other income or assets with which the child-support arrearage may be paid. Id. at 359.

Accordingly, the juvenile court’s judgment, insofar as it compels the father to pay his child-support arrearage out of his SSI benefits, is reversed. The father does not seek review of the judgment insofar as it calculated his child-support ar-rearage, and therefore the propriety of that portion of the judgment is not an issue before this court. The juvenile court is permitted to determine on remand if the father has access to other income or assets from which he may satisfy his obligations, but it may not order the father to pay his child-support obligation or arrearage from his SSI benefits.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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


text:
    J.W.J. III v. ALABAMA DEPARTMENT OF HUMAN RESOURCES ex rel. B.C.
    2150564.
    Court of Civil Appeals of Alabama.
    Aug. 19, 2016.

      Margaret Y. Brown, Auburn, for appellant.
    Luther" Strange, atty. gen., Sharon E. Ficquette, chief legal counsel, and Jennifer M. Bush, asst. atty. gen., Department of Human Resources, for appellee.
   THOMAS, Judge.

In August 2013, the Alabama Department of Human Resources (“DHR”), on behalf of B.C. (“the mother”), filed a contempt petition in the Lee Juvenile Court (“the juvenile court”) seeking to compel J.W.J., III (“the father”) to pay his child support and to calculate the father’s child-support arrearage. After several interim hearings and orders, the juvenile court held a. trial on March 3, 2016, relating to the father’s expected receipt of disability benefits from which he could pay sums toward his arrearage.

The evidence at the trial indicates that the father had suffered, an accident that had.left him disabled. The juvenile court remarked that the father appeared to have serious health issues on the date of the trial. The father testified that he had undergone two surgeries and that he had been awarded Supplemental Security Income (“SSI”) benefits from the Social Security Administration as a result of his inability to earn any income; the father is not employed. He explained that he has been awarded $700 per month in SSI benefits and that he had received a $2,000 lump-sum payment of retroactive SSI benefits in January-2016. He explained that he would receive two additional lump-sum payments of retroactive SSI benefits: another $2,000 payment in June 2016 and a $6,000 payment in January 2017.

The juvenile court entered a judgment on March 3, 2016, in which it determined that the father’s child-support arrearage was $12,252.50 and ordered that the father pay $750 from the SSI benefits that he had already received, $750 in June 2016 after receipt of the second lump-sum installment, and $2,523 from his third, and final, lump-sum installment in January 2017. The juvenile court also ordered that the father pay $100 per month toward the arrearage out of his $700 in monthly SSI benefits. The judgment specifically states that the father must make the payments ordered or face incarceration for contempt. The father filed a timely postjudgment motion, to which DHR responded by conceding that federal law prevented the juvenile court from ordering the father to pay his child-support arrearage out of his SSI benefits. The juvenile court denied the father’s postjudgment motion, and the father timely appealed.

We begin our analysis by noting that Rule 32(B)(2)(b), Ala. R. Jud. Admin., clearly exempts SSI benefits from the definition of “gross income.” The rule states that “benefits received from means-tested public-assistance programs, including, but not limited' to, ‘... Supplemental Security Income,” are not considered “gross income.” However, this fact does not assist us in determining whether the juvenile court erred in ordering the father to make payments toward his child-support arrear-age out of his SSI benefits.

As the father argues and DHR concedes, 42 U.S.C. § 407(a) provides that Social Security benefits are not transferable, assignable, or attachable. That section reads:

“The right of any person to any future payment under this subchapter shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.”

We note that Congress created an exception to the anti-attachment provision of § 407(a) by enacting 42 U.S.C. § 659(a), which permits withholding of certain federal benefits, “the entitlement to which is based upon remuneration for employment,” for payment of child-support or alimony obligations. However, SSI is not based on remuneration for employment and is instead a means-tested federal-benefit program. See Tennessee Dep’t of Human Servs. ex rel. Young v. Young, 802 S.W.2d 594, 597 (Tenn.1990) (explaining that SSI benefits are not based on remuneration for employment). Furthermore, 5 C.F.R. § 581.104(j) includes SSI benefits within those benefits that are not subject to garnishment. Thus, SSI benefits are not subject to attachment pursuant to § 659(a). See Sykes v. Bank of America, 723 F.3d 399, 405 (2d Cir.2013); Department of Pub. Aid ex rel. Lozada v. Rivera, 324 Ill.App.3d 476, 480, 755 N.E.2d 548, 551, 258 Ill.Dec. 165, 168 (2001).

We agree with the Illinois Court of Appeals, which explained the protection afforded SSI benefits by § 407(a) thusly:

“SSI is a national program to provide supplemental security income to ‘[e]very aged, blind, or disabled individual who is determined [under federal standards] to be eligible on the basis of his income and resources.’ 42 U.S.C.A. § 1381a (West Supp.2001). The purpose of SSI is to provide a subsistence allowance to (among others) anyone who is unable to engage in any substantial gainful activity by reason of a disability that can be expected to result in death or has lasted or can be expected to last for a continuous period of at least 12 months. See 42 U.S.C.A. § 1382c(a)(3)(A) (West Supp. 2001); Schweiker v. Wilson, 450 U.S. 221, 223-24, 101 S.Ct. 1074, 1077, 67 L.Ed.2d 186, 191 (1981).
«
“We agree with petitioner that section 407(a) preempts state child support laws and shelters any of her SSI payments from going to child support. A federal law preempts state regulation of domestic matters if ‘Congress has “positively required by direct enactment” that state law be preempted.’ Davis v. Office of Child Support Enforcement, 341 Ark. 349, 354, 20 S.W.3d 273, 275 (2000), quoting Rose v. Rose, 481 U.S. 619, 625, 107 S.Ct. 2029, 2033-34, 95 L.Ed.2d 599, 607 (1987). We agree with the courts that have held that section 407(a) has such preemptive force in that it prohibits state courts from ordering child support to come from SSI benefits. See Davis, 341 Ark. at 355, 20 S.W.3d at 276; Becker County Human Services v. Peppel, 493 N.W.2d 573, 576 (Minn.App.1992); Tennessee Department of Human Services ex rel. Young v. Young, 802 S.W.2d 594, 597-99 (Tenn.1990). See also Commonwealth ex rel. Morris v. Morris, 984 S.W.2d 840, 842-47 (Ky. 1998) (Stephens, J., dissenting). To allow courts to order child support pay-merits to come out of SSI benefits would seriously damage the clear and substantial interests that section 407(a) represents.
“Section 407(a) states that ‘none of the moneys paid or payable under [SSI] shall be subject to execution, levy, attachment, garnishment, or other legal process.’ 42 U.S.C.A. § 407(a) (West 1991). While section 407(a) undoubtedly bars a state court from garnishing SSI benefits or ordering future benefits to be withheld (see Morris, 984 S.W.2d at 841; Young, 802 S.W.2d at 599; Whitmore v. Kenney, 426 Pa.Super. 233, 241, 626 A.2d 1180, 1184 (1993)), it appears to prevent more than just the use of the federal government as a collection agency for child support obligations. We determine that section 407(a) forbids ordering child support that burdens any SSI benefits, even those that the beneficiary has already received.”

Rivera, 324 Ill.App.3d at 478-79, 755 N.E.2d at 550, 258 Ill.Dec. at 167.

The juvenile court’s judgment does not execute upon, levy, attach, or garnish the father’s SSI benefits. Instead, the juvenile court orders the father to pay the amounts specified upon his receipt of his SSI benefits under threat of contempt. Thus, we must consider whether an order compelling payment of a child-support ar-rearage under threat of contempt is an attempt to reach SSI benefits through “other legal- process” in violation of § 407(a).

The United States Supreme Court has explained that “other legal process”

“should be understood to be process much like the processes of execution, levy, attachment, and garnishment, and at a minimum, would seem to require utilization of some judicial or quasi-judicial mechanism, though not necessarily an elaborate one, by which control over property passes from one person to another in order to discharge or secure discharge of an allegedly existing or anticipated liability.”

Washington State Dep’t of Social & Health Servs. v. Guardianship Estate of Keffeler, 537 U.S. 371, 385, 123 S.Ct. 1017, 154 L.Ed.2d 972 (2003). Orders requiring payment of a recipient’s SSI benefits under pain of contempt have been construed as “other legal process.” In re Lampart, 306 Mich.App. 226, 239-40, 856 N.W.2d 192, 199-200 (2014) (restitution order); Becker Cty. Human Servs. v. Peppel, 493 N.W.2d 573, 575 (Minn.Ct.App.1992) (child-support order). Although In re Lampart involved an order requiring an SSI recipient to pay restitution, we find the discussion regarding how a contempt order used to coerce an SSI recipient into paying his or her obligation violates § 407(a) instructive.

“We find that the reasoning of the trial court, if effectuated through its contempt powers so as to cause [the SSI recipient] to satisfy her restitution obligations from her [SSI] benefits, would be the use of a judicial mechanism to pass control over those benefits from one person to another. Thus, it would constitute ‘other legal process’ that is prohibited under 42 U.S.C. § 407(a). The process by which the trial court would enforce the restitution order would be the employment of its civil-contempt powers. Civil contempt is defined as ‘[t]he failure to obey a court order that was issued for another party’s benefit.’ Black’s Law Dictionary (9th ed.), p. 360. ‘A civil-contempt proceeding is coercive or remedial in nature.’ Id.
“When used in this manner, the court’s use of its civil-contempt powers to enforce a restitution order would act as a process much like the processes of execution, levy, attachment, and garnishment, because in that context, the process would involve a formal procedure by which the restitution victim, through the trial court, would gain control over [the recipient’s SSI] benefits. See Keffeler, 537 U.S. at 383-385, 123 S.Ct. 1017.... In this case, the court’s demand was the restitution order, and the court would compel compliance with that demand through its civil-contempt powers. Consequently, if the trial court were in fact to use its contempt powers in a manner as would compel [the recipient] to satisfy her restitution obligations using her [SSI] benefits, we would find that the process employed falls within the definition of ‘other legal process’ as the term is used in 42 U.S.C. § 407(a).
“We note that it could be argued that, in imposing a civil contempt, a court does not touch a contemnor’s money directly, but rather imposes a personal sanction on the contemnor that will be lifted if the contemnor chooses to comply. In other words, civil contempt imposes a choice; perhaps a choice in which neither alternative is appealing, but nonetheless a choice that the con-temnor is in fact free to make. However, we find this argument not to be compelling when the circumstances are such that a contempt finding necessarily requires a contemnor to satisfy the legal obligation that is the subject of the contempt order by invading a monetary source that the court is not allowed to reach directly. In those circumstances, the contempt order would be the functional equivalent of an order directly reaching the funds, such that labeling the order as one of ‘contempt’ rather than ‘garnishment’ would exalt form over substance and ignore the reality of the circumstances. See In re Bradley Estate, 494 Mich. 367, 387-388, 835 N.W.2d 545 (2013) (holding that the substance of an action labeled a civil-contempt indemnification action was a claim for tort liability despite its label).”

In re Lampart, 306 Mich.App. at 239-42, 856 N.W.2d at 199-201.

Thus, we conclude that the juvenile court’s order requiring the father to pay his child-support arrearage from his SSI benefits under threat of contempt violates § 407(a). As DHR argues, however, the juvenile court is not prevented from entering a judgment on the arrearage or from enforcing its order that the father make payments toward the arrearage provided that the father is ordered to satisfy his obligations from assets or sources of income other than the father’s SSI benefits. As the Michigan Court of Appeals explained, the juvenile court can hold future hearings to determine whether the father has other income or assets from which his child-support arrearage may be satisfied.

“Given that the trial court in this case has not yet held [the recipient] in contempt, has not made a determination with regard to whether she has any other assets (apart from any that are proceeds of her [SSI] benefits) from which restitution may be satisfied, and has not made any recent determination of her income sources to ascertain whether any exist apart from her [SSI] benefits, we decline to determine whether circumstances exist that might warrant a contempt order at this time. However, on remand, the trial court should follow our direction in this opinion, to appropriately (and perhaps periodically) ascertain [the recipient’s] assets and sources of income, perhaps through a contempt hearing, and to enter further orders as appropriate, while avoiding any directive, either explicit or otherwise, that will in fact cause [the recipient] to have to invade her [SSI] benefits (or the proceeds thereof) to satisfy her continuing restitution obligation.”

In re Lampart, 306 Mich.App. at 242, 856 N.W.2d at 201 (footnote omitted).

Accordingly, the juvenile court’s judgment, insofar as it compels the father to pay his child-support arrearage out of his SSI benefits, is reversed. The father does not seek review of the judgment insofar as it calculated his child-support arrearage, and therefore the propriety of that portion of the judgment is not an issue before this court. The juvenile court is permitted to determine on remand if the father has access to other income or assets from which he may satisfy his obligations, but it may not order the father to pay his child-support obligation or arrearage from his SSI benefits.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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


author: MOORE, Judge.

text:
    Kennon W. WHALEY v. Rhonda West WHALEY.
    2150323.
    Court of Civil Appeals of Alabama.
    Aug. 26, 2016.

      Beverlye Brady, Auburn, for appellant.
   MOORE, Judge.

Kennon W. Whaley (“the husband”) appeals from a divorce judgment entered by the Lee Circuit Court (“the trial court”). We affirm the trial court’s judgment in part and reverse it in part.

Procedural History

On April 3, 2013, Rhonda West Whaley (“the wife”) filed a complaint seeking a divorce from the husband. On May 10, 2013, the husband answered the complaint and counterclaimed for a divorce. On June 7, 2013, the wife filed a reply to the counterclaim.

After a trial, the trial court entered an order, on September 29, 2014, divorcing the parties; awarding the parties joint custody of the parties’ children and specifically setting the husband’s custodial periods as every other Friday night through the-following Wednesday morning, on holidays in alternating years, and on certain other special occasions; and reserving the issues of child support, alimony, and property division. After a second trial on the remaining issues, the trial court entered a judgment on November 27, 2015, that, in pertinent part, imputed monthly income of $8,500 to the husband and $1,732 to the wife; ordered the husband to pay $1,127 per month in child support; ordered the husband to pay the wife periodic alimony in the amount of $3,673 per month; ordered the husband to pay $35,000 to the wife as a property settlement; awarded the marital home to the husband; awarded the wife her preexisting 50% share of J & S Investments, LLC; ordered the husband to pay the debts associated with the businesses owned by the parties; ordered the husband to pay 80% of the parties’ joint debts; awarded the wife 20% of “KRIP, LLC, including its intellectual property, proprietary information, patents, patent applications, processes, licenses, and other property rights”; awarded the wife 20% of B & W Holdings, LLC; and awarded the wife 40% of the following businesses: “K2 Enterprises, LLC, including its intellectual property, proprietary information, patents, patent applications, processes, licenses, and other property rights,” Dixieland Metals of Alabama, LLC, Whaley Holdings, LLC, Southeastern Stud, LLC, Southeastern Stud and Components, Inc., K4 Assets, LLC, Dixieland Metals of Mississippi, LLC, and Mid-South Steel, LLC. The trial court further ordered:

“Until such time as [the] Husband’s ... stock or membership interests are more formally transferred to [the] Wife as set out above, [the] Wife shall receive an amount of money equal to 67% of all direct or indirect distributions, payments, or other income, from such companies to [the husband]. Such payments to the Wife shall be made within 24 hours of such payments being made to [the husband].”

Finally, the trial court ordered:

“From almost the beginning of this case, the Husband has been ordered to provide the Wife as much for legal expenses as he spent on himself. Thus far he has managed not to pay his attorneys since that time, but acknowledges owing them at least $150,000 for their extensive services in this case. Therefore the Court awards the same amount to [the] Wife. The HUSBAND shall pay to the WIFE, as an allotment for attorney fees and legal expenses, the sum of $150,000 ..., for which amount judgment is entered in favor of [the] WIFE against the HUSBAND, for which execution may issue as allowed by law.”

(Capitalization in original.) On December 29, 2015, the husband filed a postjudgment motion. On January 8, 2016, the husband filed his notice of appeal. The notice of appeal was held in abeyance until February 9, 2016, when the postjudgment motion was denied. See Rule 4(a)(5), Ala. R.App. P.

Discussion

I. Child Support

On appeal, the husband first argues that the trial court erred in not deviating from the Rule 82, Ala. R. Jud. Admin., child-support guidelines because, he says, the trial court awarded the parties joint physical custody of the children and because, he says, he “was awarded periods of custodial time substantially in excess of those anticipated by the Child Support Guidelines.”

Rule 32(A)(1), Ala. R. Jud. Admin., provides, in pertinent part:

“Reasons for deviating from the guidelines may include, but are not limited to, the following:
“(a) Shared physical custody or visitation rights providing for periods of physical custody or care of children by the obligor parent substantially in excess of those customarily approved or ordered by the court....”

In Boatfield v. Clough, 895 So.2d 354, 356 (Ala.Civ.App.2004), the father in that case appealed, arguing that, because he and the mother had been awarded joint physical custody of their children and because he had been awarded “two nights per week and alternate weekends with the children, i.e., a total of six days out of every two weeks,” the trial court had erred in not deviating from the child-support guidelines. This court explained:

“[The father’s] principal contention is that where parents are awarded joint custody and exercise roughly equal custodial periods, the application of the Child Support Guidelines is manifestly unjust and inequitable and, therefore, a deviation from the Child Support Guidelines is required. However, the father’s contention is refuted by the text of Rule 32 itself. Although Rule 32 acknowledges that, among other reasons, ‘[s]hared physical custody or visitation rights providing for periods of physical custody or care of children by the obli-gor parent substantially in excess of those customarily approved or ordered by the court’ may constitute a ‘[r]ea-son[ ] for deviating from the guidelines,’ the rule further notes that ‘[t]he existence of one or more of the reasons enumerated in this section does not require the court to deviate from the guidelines.’ Rule 32(A)(1), Ala. R. Jud. Admin, (emphasis added). ‘An award of child support resulting from the application of the guidelines is presumed correct,’ Rogers v. Rogers, 598 So.2d 998, 1000 (Ala.Civ.App.1992), and the judgment under review in this case fully comports with the text of Rule 32 and the Child Support Guidelines.”

Boatfield, 895 So.2d at 356.

Similarly, in the present case, the trial court awarded the parties joint physical custody of the children and awarded the husband custody beginning every other Friday night through the following Wednesday morning (less than five days out of every two weeks), on holidays in alternating years, and on certain other special occasions. In accordance with Boatfield, we cannot conclude that the trial court exceeded its discretion in declining to deviate from the child-support guidelines.

Also with regard to child support, the husband argues that the trial court did not follow the assumption “that the custodial parent will take the federal and state income tax exemptions for the children in his or her custody” because, he says, the trial .court required that the wife earn $20,000 per year in order to claim the exemption;,-he also argues that the trial court used a higher amount for health-insurance costs than was warranted. We note, however, that any errors on those points enured to the husband’s favor. “[A] party cannot complain of error in his [or her] favor.” Yeager v. Miller, 286 Ala. 380, 385, 240 So.2d 221, 224 (1970). Accordingly, .we. will not reverse the trial court’s judgment on those points.

The husband also argues that the trial court erred in not imputing a higher income to the wife for child-support purposes.

“The trial court is'afforded the discretion to impute income to a parent for the purpose of determining child support, and the determination that a parent is voluntarily unemployed or underemployed ‘is to be made from the facts presented according to the judicial discretion of the trial court.’ Winfrey v. Winfrey, 602 So.2d 904, 905 (Ala.Civ.App.1992). See also Rule 32(B)(5), Ala. R. Jud. Admin.”

Clements v. Clements, 990 So.2d 383, 394 (Ala.Civ.App.2007). In Mitchell v. Mitchell, 69 So.3d 904 (Ala.Civ.App.2011), this court held that, because the trial court in that case “had before it evidence from which it could have reasonably found that the parties had agreed in 2004 or 2005 that the wife would' stay at homé to get the child ready for school in the morning and to take care of him when he came home from school in the afternoon instead of working” and “that [the wife] had not worked since 2004 or 2005 because of that arrangement!,] ... the wife was not voluntarily unemployed” and, therefore, that the trial pourt had not exceeded its discretion in declining to impute income to the wife. 69 So.3d at 907. Similarly in the present case, although the husband.testified that the wife had obtained a job with Wells Fargo Home Mortgage in 2013, the wife testified that she had worked for Wells Fargo for only a short period, having only gone through their training program, and that she had not received any income for that training. She testified that the last time she had worked full time as a mortgage broker was in 2005, when she had become pregnant with the parties’ older child. The wife testified that she recently had been hired by Interline Mortgage Services, LLC, but that her hiring was dependent upon her passing her licensing exam to regain her license to work as a mortgage loan officer; according to the wife, she had not taken the required exam at the time of the trial. Based on the foregoing, we cannot conclude that the trial court exceeded its discretion in declining to impute a higher income to the wife.

Finally, the husband argues that the trial court erred in imputing a monthly income of $8,500 to him when he had presented evidence indicating that he was earning only $7,000 per month at the time of the final hearing in this case. As stated previously, however,

“[t]he trial court is afforded the discretion to impute income to a parent for the purpose of determining child support, and the determination that a parent is voluntarily unemployed or underemployed ‘is to be made from the facts presented according to the judicial discretion of the trial court.’ Winfrey v. Winfrey, 602 So.2d 904, 905 (Ala.Civ.App.1992). See also Rule 32(B)(5), Ala. R. Jud. Admin.”

Clements, 990 So.2d at 394. The husband’s argument that he was not actually earning $8,500 a month misses the point that a trial court is given the discretion to impute income other than the actual income of a party. We note that the husband does not present an argument that was he not voluntarily underemployed.

“‘Rule 28(a)(10)[, Ala. R.App. P.,] requires that arguments in briefs contain discussions of facts and relevant legal authorities that support the party’s position. If they do riot, the arguments are waived.’ White Sands Grp., L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1058 (Ala.2008); see also Bishop v. Robinson, 516 So.2d 723, 724 (Ala.Civ.App.1987) (quoting Thoman [Eng's], Inc. v. McDonald, 57 Ala.App. 287, 290, 328 So.2d 293, 294 (Civ.App.1976)) (noting that an appellant should ‘present his issues “with clarity and without ambiguity”’ and ‘fully express his position on the enumerated issues’ in the argument section of his brief); accord United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990) (‘It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel’s work, create the ossature for the argument, and put flesh on its bones.’).”

Hudson v. Hudson, 178 So.3d 861, 865 (Ala.Civ.App.2014).

In the present case, the husband has failed to meet the requirements of Rule 28(a)(10), Ala. R.App. P., with regard to the relevant issue affecting the trial court’s determination of his income for child-support purposes. Therefore, we cannot find the trial court in error on this point.

II. Property Division and Alimony

The husband next argues that the trial court exceeded its discretion in its division of the marital property and its award of periodic alimony to the wife.

“ ‘Matters such as alimony and property division are within the sound discretion of the trial court. Ex parte Drummond, 785 So.2d 358 (Ala.2000); Parrish v. Parrish, 617 So.2d 1036 (Ala.Civ.App.1993); and Montgomery v. Montgomery, 519 So.2d 525 (Ala.Civ.App.1987). The issues of property division and alimony are interrelated, and they must be considered together on appeal. Albertson v. Albertson, 678 So.2d 118 (Ala.Civ.App.1996).’ ”

Walker v. Walker, 216 So.3d 1262, 1270-71 (Ala.Civ.App.2016) (quoting Turnbo v. Turnbo, 938 So.2d 425, 430 (Ala.Civ.App.2006)).

The husband specifically argues that the trial court’s judgment awarding the wife 20% of KRIP, LLC (“KRIP”), was in error because, he says, that corporation is governed by an operating agreement that prevents the transfer of any membership interest without the consent of the other members. The operating agreement of KRIP specifically provides: “No Membership Interest shall be Disposed of ...[,] whether voluntarily or involuntarily, by operation of law or otherwise, without the consent of all the remaining Members .... ” The husband testified that KRIP is owned by him and Ryan Smith, who is the managing member. Smith was not added as a party to the divorce action, and no evidence was presented to suggest that he had consented to the transfer of any of the husband’s interest in KRIP.

Section 10A-5A-1.09(a), Ala.Code 1975, which became effective on January 1, 2015, provides that “[a] limited liability company is bound by and may enforce the limited liability company agreement.” We note that there is no binding Alabama precedent regarding whether a trial court is bound by such an agreement in making an equitable division of property in a divorce; however, in Equitable Division of Property, Brett R. Turner points out that the general rule appears to be that a court is so bound. 3 Brett R. Turner, Equitable Division of Property § 9:6 (3d ed.2015); see also Schiller v. Schiller, 625 So.2d 856, 858 (Fla.Dist.Ct.App.1993) (holding that a “partnership agreement [that] contained] prohibitions against the sale or assignment of a partner’s interest in the partnership without the other’s consent” would be enforced); Kelsey v. Kelsey, 714 N.E.2d 187, 192 (Ind.Ct.App.1999) (noting that “the Partnership Agreement governed Husband’s assignment to Wife”); Nilsen v. Hanson, 709 A.2d 1190, 1191 (Me.1998) (recognizing that, in a divorce action, one party’s “limited partnership interest could not be assigned [to the other party] without the consent of the general partner”); Castonguay v. Castonguay, 306 N.W.2d 143, 145-46 (Minn.1981) (opining that a division of a spouse’s stock in a divorce is an involuntary transfer and would be prohibited when a corporation’s rules prevented involuntary transfers of stock); In re Marriage of Schlichting, 385 Ill.Dec. 859, 871-72, 19 N.E.3d 1055, 1067-68 (2014) (concluding that, “in distributing interest in a company, a divorce court should honor the company’s operating agreement and any transfer restrictions contained therein”); and Burgess v. Burgess, 407 S.C. 98, 108, 753 S.E.2d 566, 572 (Ct.App.2014) (finding that “an in-kind division of the LLCs was impossible due to the restrictions on Husband’s ability to transfer his ownership interest”).

In Kelley v. Kelley, 959 So.2d 109, 113 (Ala.Civ.App.2006), a plurality of this court held that the trial court in that case had erred in disposing of shares of a closely held corporation that were partially owned by the husband without following the terms of a buy-sell agreement entered into by the shareholders of the corporation, thereby indicating this court’s inclination to follow the general rule that restrictions on transfers of stock are binding on a court in effectuating a division of property in a divorce case. We see no reason to depart from the general rule or this court’s previous plurality opinion on this subject.

Based on the foregoing, and in accordance with the general rule on this subject, we conclude that, because the trial court’s judgment dividing the husband’s interest in KRIP fails to comport with the terms of the operating agreement of KRIP, the trial court erred in that regard. We therefore reverse the trial court’s judgment to the extent that it divided the marital property and remand this cause for reconsideration of the division of the marital property in accordance with this opinion. Because the division of property and the award of alimony are interrelated, we also reverse the judgment to the extent that it awarded the wife periodic alimony. Kelley, 959 So.2d at 113; and Walker, 216 So.3d at 1271. We pretermit discussion of the husband’s remaining arguments—that the property division was inequitable and that he lacked the ability to pay the alimony ordered—in light of our disposition of the previous argument.

III. Attorney’s Fees

The husband next argues that the trial court’s judgment awarding the wife attorney’s fees is in error because, he says, the trial court did not have evidence of the amount of the wife’s attorney’s fees and, instead, simply awarded the wife the amount of attorney’s fees charged by the husband’s attorneys. In Frazier v. Curry, 104 So.3d 220, 228 (Ala.Civ.App.2012), this court reasoned:

“[T]he financial circumstances of the parties as well as the results of the litigation are undetermined because we have reversed the trial court’s property division and alimony award in their entirety and remanded the case for further consideration. Accordingly, we reverse the attorney-fee award and direct the trial court to further consider the issue on remand.”

In accordance with Frazier, because we are reversing the alimony and property-division portions of the judgment, we pre-termit discussion of the attorney-fee issue and “reverse the attorney-fee award and direct the trial court to further consider the issue on remand.” 104 So.3d at 228.

IV. Admission of Evidence

The husband finally argues that the trial court erred in allowing the wife to use certain audiotape recordings in the presentation of her case.

“ ““ “[A] judgment cannot be reversed on appeal for an error [in the improper admission of evidence] unless ... it should appear that the error complained of has probably injuriously affected substantial rights of the parties.”’” Mock [v. Allen], 783 So.2d [828] at 835 [ (Ala.2000) ] (quoting Wal-Mart Stores[, Inc. v. Thompson], 726 So.2d [651] at 655 [(Ala. 1998) ], quoting in turn Atkins v. Lee, 603 So.2d 937, 941 (Ala.1992)). See also Ala. R.App. P. 45. “The burden of establishing that an erroneous ruling was prejudicial is on the appellant.” Preferred Risk Mut. Ins. Co. v. Ryan, 589 So.2d 165, 167 (Ala.1991).’
“Middleton v. Lightfoot, 885 So.2d 111, 113-14 (Ala.2003) (emphasis omitted).”

Wood v. Hayes, 104 So.3d 863, 870 (Ala.2012).

In the husband’s brief, he has failed to present an argument regarding how the admission of the recordings harmed his case. Thus, we conclude that he has not met his burden of establishing that the admission of the recordings was prejudicial to him.

Conclusion

Based on the foregoing, we reverse the trial court’s judgment to the extent that it divided the parties’ property and awarded the wife periodic alimony. As a result, we also reverse the trial court’s judgment insofar as it addresses an award of attorney’s fees to the wife. We remand this cause for reconsideration of those issues in light of this court’s conclusion that the husband’s shares of KRIP were erroneously divided in violation of the operating agreement. We affirm the judgment in all other respects.

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

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

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

      . In Castonguay v. Castonguay, 306 N.W.2d at 145, the Minnesota Supreme Court noted: “Only two states have expressly permitted divorce court transfers in contravention to a stock transfer restriction, Louisiana and Texas. Messersmith v. Messersmith, 229 La. 495, 86 So.2d 169 (1956); Earthman’s, Inc. v. Earthman, 526 S.W.2d 192 (Tex.Civ.App.Tex1975). Both, however, are community property states.”

      . We note that in Clark v. Clark, 58 So.3d 1276 (Ala.Civ.App.2010), this court held that a court was not bound by a limitation on transfers of stock in an operating agreement because the operating agreement did not state that it applied to "an involuntary dissociation caused by a court’s order requiring a member to divest his or her interest in the business as part of a divorce proceeding.” 58 So.3d at 1280. Because, in the present case, the operating agreement specifically applies the limitation on transfers to voluntary and involuntary transfers, we conclude that Clark is inapplicable here.

      . The opinion in Frazier was a plurality decision; Judge Thomas authored the opinion, Judge Pittman concurred, and Presiding Judge Thompson, Judge Bryan, and Judge Moore concurred in the result.


text:
    Carrie CREWS v. Grace JACKSON.
    2150422.
    Court of Civil Appeals of Alabama.
    Aug. 26, 2016.
    Terrika Shaw, Legal Services Alabama, Birmingham, for appellant.
   THOMAS, Judge.

In April 2014, Grace Jackson secured a judgment totaling $1,806 against Carrie Crews in the Perry District Court (“the district court”), Jackson immediately filed a process of garnishment in the district court seeking to satisfy that judgment. Crews filed a declaration and claim of exemptions to the garnishment in which she claimed as exempt only the entirety of her wages and not any personal or real property. See Ala.Code 1975, .§ 6-10-20 (permitting a judgment debtor to file with the court “a declaration in writing, subscribed and sworn to by him or her, describing the property selected and claimed by him or her as exempt”), and Rule 64B, Ala. R. Civ. P. (explaining the procedure hy which a defendant may seek exemption from garnishment). Crews also filed a motion to stay or to quash the garnishment. The district court entered an order on May 23, 2014, quashing the garnishment. However, on May 29, 2014, the district court amended its order to state as follows:

“The Court having previously quashed the garnishment in this case, hereby amends said order with the following conditions, to wit: (1) That the garnishment is stayed so long as [Crews] pays $200 per month to the Perry County Circuit Clerk’s Office on the judgment amount; (2) That should [Crews] fail to pay, the garnishment shall be reinstated.”

On June 11, 2014, Crews filed a motion in which she sought “further cons’id-er[ation]” of the May 29, 2014,' order and dismissal of the garnishment proceeding because Jackson had failed to contest Crews’s declaration and claim of exempr tions within 15 days of its filing. See Rule 64B (requiring a judgment creditor to contest a claim of exemptions within 15 calendar days of the filing of the claim of exemptions and requiring dismissal or modification of a garnishment proceeding, so as to give effect to the claimed exemptions, when a judgment creditor fails' to timely file a contest). The district court set a hearing on Crews’s motion for August 4, 2014; that hearing" was apparently continued to October 1, 2014. Crews sought a continuance of the October 1, 2014, hearing; "the district court1 denied that motion.

On October 7, 2014, the district court entered an order permitting Jackson to file a contest to the declaration and claim of exemptions before October r 24, 2014. Jackson complied with the district court’s order and filed her contest on October 20, 2014. On October 22, 2014, the' district court entered an order stating that Crews had 14 days to respond to" Jackson’s contest. On December 4, 2014; Crews filed a motion to dismiss the garnishment proceeding in which she argued that Jackson’s contest to the declaration and claim of exemptions had been filed too late and that, therefore, Crews was entitled to have the garnishment proceeding dismissed. Neither the original .record.on appeal nor the supplemental record- on appeal contain an order granting or denying Crews’s motion to dismiss the garnishment.proceeding.

The next order contained in the record on appeal is a May 4,2015, order requiring Crews to submit a proposed repayment plan. That order states that if Crews did not comply, the writ of garnishment would “reissue.” On July 1, 2015, the district court entered an order in which it stated that it had “reissued” the writ of garnishment.

The record next contains what appears to be a new process of garnishment containing the same case number, which was filed in the district court on September 25, 2015. Crews filed a new declaration and claim of exemptions and a new motion to stay or quash the garnishment on October 22 and 23, 2015, respectively. The district court denied the motion to stay or quash the garnishment on October 27, 2015. Jackson did not file a contest to Crews’s declaration and claim of exemptions. Crews filed a motion to dismiss the garnishment proceeding on November 16, 2015; the district court denied that motion on November 17, 2015. Crews filed a notice of appeal to the Perry Circuit Court (“the circuit court”) on November 24, 2015.

On December 17, 2015, Crews filed in the circuit court a motion to stay or quash the garnishment. In that motion, Crews again argued that she was entitled to a dismissal of the garnishment proceeding under Rule 64B because Jackson had not contested Crews’s declaration and claim of exemptions. In her motion, Crews also stated that the district court had entered an order garnishing her wages and that the garnishment of her wages was causing an extreme hardship to her. The circuit court entered an order on December 18, 2015, stating that it “has no authority to stay the execution of the Judgment. [Crews] can file a supersedeas bond in the amount of 150% of the judgment pursuant to [Ala. R.App. P., Rule] 8 to stay the execution.” After a hearing, the circuit court denied the motion to stay or quash the garnishment on January 6, 2016. Crews appealed to this court on February 12, 2016.

On appeal, Crews makes four arguments. She first argues that Jackson failed to contest her declaration and claim of exemptions directed to what appears to be the second process of garnishment, which was filed after the district court had “reissued” the writ of garnishment, and that, under Rule 64B, the district court was therefore required to dismiss the garnishment proceeding. Thus, she contends, the circuit court was also required to dismiss the garnishment proceeding. Crews’s second argument on appeal is that “the lower court” or “the trial court” acted contrary to law when it refused to dismiss the garnishment proceeding. Thirdly, Crews complains that “the trial court improperly conditioned a dismissal of the garnishment upon Crews’s making a settlement with payments to Jackson.” Finally, Crews argues that the circuit court erred by requiring that she post a superse-deas bond as a condition to staying the garnishment on de novo appeal in that court.

We note that it appears that a portion of Crews’s arguments on appeal pertain to orders entered by the district court. Crews’s appeal to the circuit court was a de novo appeal. See Ala.Code 1975, § 12-12-71 (“Except as provided in Section 12-12-72[, Ala.Code 1975,] and in subsection (e) of Section 12-15-120, [Ala.Code 1975,] all appeals from final judgments of the district court shall be to the circuit court for trial de novo.”).

“ ‘ “Alabama cases have consistently held that a trial de novo means an entirely new trial, ‘as if no trial had ever been had, and just as if it had originated in the circuit court.’ Cloverleaf Land Co. v. State, 276 Ala. 443, 163 So.2d 602 (1964).”’ State v. Reynolds, 887 So.2d 848, 853 (AIa.2004) (quoting Ex parte

Palughi, 494 So.2d 404, 408 (Ala.1986)). ‘A trial de novo ... means “trying anew the matters involved in the original hearing as if they had not been heard before and as if no decision had been previously entered.” ’ Neal v. First Alabama Bank of Huntsville, N.A., 440 So.2d 1111, 1112 (Ala.Civ.App.1983) (quoting Rudolph v. State, 286 Ala. 189, 190, 238 So.2d 542, 543 (1970))(emphasis omitted).

“In Cloverleaf Land Co. v. State, 276 Ala. 443, 445-46, 163 So.2d 602, 605 (1964), our supreme court stated:

“‘[W]e held in Thompson v. City of Birmingham, 217 Ala. 491, 492, 117 So. 406, 407 [ (1928) ], “A trial de novo means a new trial ‘as if no trial had ever been had, and just as if it had originated in the circuit court,’ ” citing Louisville & N.R.R. Co. v. Lancaster, 121 Ala. 471, 473, 25 So. 733, 735 [ (1899) ], wherein this court said:
“ ‘ . The appeal [to be tried de novo], when taken, operates to annul and vacate the entire judgment of the justice of the peace, and not a part only of the judgment. The judgment of the justice cannot upon the trial in the circuit court be looked to as a matter of evidence or of estoppel.” ’ ”

Petersen v. Woodland Homes of Huntsville, Inc., 959 So.2d 135, 139 (Ala.Civ.App.2006).

Thus, to the extent that Crews complains about the actions taken by the district court, we cannot reach those issues. The district court’s judgment has been supplanted by the judgment rendered by the circuit court, and we may review only that judgment on appeal.

Crews complains that the circuit court erred by failing to dismiss the garnishment proceeding and by requiring her to post a supersedeas bond to stay execution of the district court’s writ of garnishment. Although we agree that the circuit court erred by requiring the posting of a super-sedeas bond in an appeal from the district court, because the applicable rule, Rule 62(dc)(5), Ala. R. Civ. P., provides that “the provision for a supersedeas bond in Rule 62(d) is deleted and Rule 62(d) is modified so as to require only a bond for costs or an affidavit of substantial hardship, approved by the court, in lieu of said bond,” we cannot afford Crews any relief from the circuit court’s failure to stay the garnishment at this point. Thus, the issue whether the circuit court improperly failed to stay the garnishment without the posting of a supersedeas bond pursuant to Rule 8, Ala. R.App. P., is moot. Kirby v. City of Anniston, 720 So.2d 887, 889 (Ala. 1998) (“It is not the province of [an appellate court] to resolve an issue unless a proper resolution would afford a party some relief.”).

Crews argues that the garnishment proceeding was due to be dismissed by the circuit court because Jackson failed to contest Crews’s most recent declaration and claim of exemptions, which Crews filed on October 22, 2015, in response to the second process of garnishment, filed after the district court had “reissued” the writ of garnishment. According to Ala.Code 1975, § 6-10-23, “[a]fter the filing of such declaration, the claim of exemption therein asserted shall be taken and considered as prima facie correct, and the filing thereof shall operate as notice of its contents.” In addition, Ala. Code 1975, § 6-10-24, provides:

“After such declaration of claim has been filed for record, the property therein embraced shall not be subject to levy unless there is endorsed on the process the fact that there has been a waiver of exemption as to the kind of property on which the levy is sought to be made or the claim is contested.”

Our supreme court discussed the application of § 6-10-24 in Ex parte Avery, 514 So.2d 1380, 1381 (Ala.1987), and concluded that

¡‘property cannot be subject to levy unless the. creditor ... filed a contest of the'claimed exemptions. This Court has ‘held that a contest is the exclusive-method of - preserving a levy after a claim of exemption -is filed, Kennedy v. Smith, 99 Ala. 83, 11 So. 665 (1892); and that a claim of exemption, unless properly contested, must be upheld and the levy or other process released. Totten & Bros. v. Sale & Co., 72 Ala. 488 (1883); Poole v. Griffith, 216 Ala. 120, 112 So. 447 (1927).”

Créws specifically relies on Rule 64B, Which provides, in pertinent part, that

“[i]f the plaintiff fails to make timely contest after notice of the defendant’s claim of exemption, after fifteen (15) calendar days from the filing of such claim, . the process of garnishment and any writ of garnishment issued therein shall be dismissed or, where appropriate, modified to the extent necessary to give effect to the claimed exemptions.”

Thus, Crews contends, Jackson’s failure to timely file a contest to the most recent ■declaration and claim of .exemptions required the circuit court to either dismiss the garnishment proceeding or to modify the garnishment so as to give effect to the claimed exemptions.

In order for Crews’s argument to be correct, the use of the word “shall” in the quoted sentence of Rule 64B must operate to make the provision mandatory. As .our-supreme court explained in Oliver v. Shealey, 67 So.3d 73, 76 (Ala.2011), “[t]he word ‘shall’ can be permissive in a situation where it Would frustrate legislative intent to hold otherwise, but if no such circumstance exists, it is mandatory.” See also Ex parte Prudential Ins. Co. of America, 721 So.2d 1135, 1138 (Ala.1998) (“The word ‘shall’ is clear and unambiguous and is imperative and mandatory.”). As we have explained, however, “[o]ur supreme court has consistently held that- the word ‘shall’ is mandatory when used in a rule promulgated by that court.” Martin v. Martin, 637 So.2d 901, 902 (Ala.Civ.App.1994). In addition, the term “shall” is the equivalent of the term “must” and is typically “ ‘ “inconsistent with a concept of discretion.” ’ ” Oliver, 67 So.3d at 76 (quoting Ex parte Bad Toys Holdings, Inc., 958 So.2d 852, 856 (Ala.2006), quoting in turn Black’s Law Dictionary 1375 (6th ed.1991)),

Nothing in Rule 64B indicates that the intent of the rule would be frustrated by construing the term “shall” as mandatory in this instance. To construe Rule 64B so as to allow a court discretion to determine whether to dismiss a garnishment proceeding or to modify a writ of garnishment when the judgment creditor has failed to contest a declaration and claim of exemptions would do violence to the language of § 6-10-24, which provides that property claimed as exempt is not subject to levy unless there exists “a waiver of exemption as to the kind of property on which the levy is sought to be made or the claim is contested.” Furthermore, we held in Young v. Strong, 694 So.2d 27, 28 (Ala.Civ.App.1997), that the failure to properly contest a declaration and claim of exemptions required that the claim of exemptions “be considered prima facie correct and ... upheld.” Thus, Crews is correct that Rule 64B permits a court handling a garnishment proceeding no discretion and instead requires that court to dismiss the garnishment proceeding or to modify the writ of garnishment in order to give effect to the claimed exemptions filed by the debtor when no timely contest to the claimed exemptions was made.

Jackson’s failure to timely file a contest to Crews’s declaration and claim of exemptions requires dismissal of the garnishment proceeding under Rule 64B. The judgment of the circuit court refusing to quash the garnishment is therefore reversed; the cause is remanded for the entry of a judgment consistent with this opinion. See Young, 694 So.2d at 29.

REVERSED AND REMANDED.

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

      . We note that Crews was permitted to claim all of her wages, which totaled less than $900 a pay period, as exempt. See Pruett v. Worldwide Asset Purchasing, LLC, 140 So.3d 481, 483 (Ala.Civ.App.2013) (explaining that a debtor could claim all of her wages, which amounted to $600 biweekly, as. exempt provided that her total claim of exemptions did not exceed the $1,000 maximum exemption provided in Ala, Const. 1901 (Off.Recomp.), Art. X, § 204).