author: THOMPSON, Presiding Judge.

text:
    Chivers Richard WOODRUFF, Jr. v. Julia Mariani WOODRUFF. Julia Mariani Woodruff v. Chivers Richard Woodruff, Jr.
    2070602.
    Court of Civil Appeals of Aabama.
    May 8, 2009.

      Stephen R. Arnold of White Arnold & Dowd, P.C., Birmingham, for appellant/cross-appellee Chivers Richard Wood-ruff, Jr.
    Sara J. Senesac, Birmingham, for appel-lee/cross-appellant Julia Mariani Woodruff.
   THOMPSON, Presiding Judge.

This appeal arises from postdivorce proceedings in the Jefferson Circuit Court. Chivers Richard Woodruff, Jr. (“the husband”), appeals from the order of the trial court as to the parties’ respective petitions for a rule nisi; Julia Mariani Woodruff (“the wife”) cross-appeals. On January 14, 2008, the trial court held an ore tenus hearing on the parties’ respective petitions and amended petitions. After the hearing, the court entered an order requiring the husband to pay the wife $27,539.55 “for her share of the net proceeds from the sale of the [parties’] house, the [husband] being solely responsible for the indebtedness on the house” pursuant to the terms of the original divorce judgment. The trial court also ordered the wife to pay the husband $10,000 for property that the husband was to have received pursuant to the original divorce judgment.

The evidence adduced at the hearing of this matter tended to show the following. The parties were divorced on April 10, 2006. Before the divorce judgment was entered, the parties had drafted an agreement (“the agreement”) indicating, among other things, the manner in which their assets, including both real property and personal property, were to be divided. Many of the provisions of the agreement included in the record had handwritten notations beside them, and portions of some of the provisions were deleted. In entering the final judgment of divorce, the trial court noted that the judgment was “based on the pleadings, the oral testimony of the [husband] and [wife] and the [agreement] filed.” The trial court included the provisions of the agreement in the final judgment, but the language of the agreement was not always included verbatim. Neither party appealed from the final judgment of divorce.

On September 15, 2006, the husband filed a petition for a rule nisi alleging that the wife had failed to comply with a number of the provisions of the divorce judgment. On November 17, 2006, the wife filed a counter-petition for a rule nisi claiming, among other things, that the husband had not cooperated with her in the sale of a rental house the parties owned.

One of the terms in the original divorce judgment provided as follows:

“4. The parties jointly own real estate located [on] Willoughby Road, Birmingham, Alabama. The realty shall be placed on the market and sold, with the net proceeds divided with Fifty Percent (50%) to the [wife] and Fifty Percent (50%) to the [husband]. Pending such sale, the [husband] shall be responsible for and pay the mortgage payments, taxes, and insurance due on said realty, and shall indemnify and hold harmless the [wife] therefrom.”

When the parties purchased the Wil-loughby Road house, they took title as joint owners with the right of survivorship. Both signed the mortgage on the house, but only the husband signed the promissory note. During the marriage, the parties rented the Willoughby Road house, and the rental profits were used for the benefit of the marriage.

The Willoughby Road house was placed on the market pursuant to the divorce judgment. The husband continued to make the mortgage payments on the house. In late 2006, while the petitions in the underlying proceedings were pending before the trial court, the wife and a potential buyer had discussions about the house. An informal offer was made for the purchase of the house. The wife told the husband about the offer, and he replied by e-mail that the offer sounded reasonable. As the wife was negotiating with the potential buyer, she also indicated to the husband that she was interested in purchasing the husband’s share of the equity in the Willoughby Road house. The husband said he would consider any written offer, but he did not hear back from the wife.

The husband asked the wife about the status of the sale of the Willoughby Road house, including whether a closing date had been set, but he heard nothing further from the wife. On December 4, 2006, the wife entered into a contract for the sale of the house for $265,000. She represented to the purchaser that she was the sole owner of the house, and at the January 17, 2007, closing on the house, she alone signed the warranty deed conveying the house to the purchaser. After the mortgage and closing costs were paid, the wife received $101,135.19. She had also previously received $1,500 in earnest money from the purchaser. The husband said that he had no knowledge of the sale, that he was not present at the closing, and that he did not receive any portion of the net proceeds of the sale.

On October 24, 2007, ten months after the sale of the Willoughby Road house, the husband amended his petition, seeking what he claimed was his portion of the net proceeds from the sale. On December 24, 2007, the wife amended her counter-petition, claiming for the first time that the husband had failed to satisfy the mortgage on the Willoughby Road house and that she had suffered an economic loss as a result.

As to the items of personal property and money the husband claimed he had not received, the husband testified that he had not received all of the coins in a coin collection that he had been awarded in the original divorce judgment. He also testified that the wife had not given him other items that were specifically awarded to him, including bottles of wine, photographic equipment, tools, and dishes and serving pieces that had belonged to his parents. The wife testified that she did not have several of the items the husband claimed. For example, she said that she had delivered all of the coins that were in the collection and that there was no inventory of the coins to show that any were missing. She also testified that she was under no obligation to “deliver” items to the husband and that she had allowed him access to the house to retrieve them, but, she stated, he had been “too tired” or “too upset” to look for some of them and had never returned to the house to retrieve the property at issue.

There was also evidence indicating that the wife had fraudulently endorsed two checks to withdraw money from an investment account that had been awarded to the husband and that she had charged personal purchases to accounts awarded to the husband after the divorce.

On appeal, the husband contends that the trial court improperly construed the term “net proceeds” as the parties had contemplated that term in the agreement and as it was used in the divorce judgment regarding the sale of the Willoughby Road house. Specifically, the husband asserts that the trial court improperly determined that the divorce judgment required the husband to pay off the mortgage in its entirety, from the husband’s own assets, before the parties equally divided the proceeds from the sale of the Willoughby Road house.

Conversely, at the hearing on the petitions and on appeal, the wife contends that because she did not join the husband in signing the promissory note for the debt on the house on Willoughby Road, he was solely responsible for paying that debt. Because the husband did not pay off the mortgage in its entirety before the sale of the house, the wife claimed she suffered an economic loss because the proceeds from the sale of the Willoughby Road house were reduced by the amount required to pay off the mortgage.

As previously noted, the Willoughby Road house sold for $265,000. After the mortgage indebtedness and closing costs were paid, the wife received $101,135.19 at the closing plus $1,500 in earnest money that she had received earlier. We note that, in the wife’s brief to this court, she refers to the $101,135.19 she received at the closing as the “net proceeds.” The wife calculated that, after closing costs were paid, the “net sales price” of the Willoughby Road house, which she defined as the gross sales price minus closing costs only, was $260,349.49. The wife claimed that, pursuant to the divorce judgment, she was entitled to half that amount, $130,174.74. Because she only received a total of $102,635.19, which included the purchaser’s earnest money, at closing, the wife claimed that the husband still owed her an additional $27,539.55 to make up that difference. The trial court ordered the husband to pay the difference.

As to the house on Willoughby Road, the divorce judgment stated:

“4. The parties jointly own real estate located [on] Willoughby Road, Birmingham, Alabama. The realty shall be placed on the market and sold, with the net proceeds divided with Fifty Percent (50%) to the [wife] and Fifty Percent (50%) to the [husband]. Pending such sale, the [husband] shall be responsible for and pay the mortgage payments, taxes, and insurance due on said realty, and shall indemnify and hold harmless the [wife] therefrom.”

(Emphasis added.)

“ ‘A divorce judgment should be interpreted or construed as other written instruments are interpreted or construed. Sartin v. Sartin, 678 So.2d 1181 (Ala.Civ.App.1996). “The words of the agreement are to be given their ordinary meaning, and the intentions of the parties are to be derived from them.” Id. at 1183. Whether an agreement is ambiguous is a question of law for the trial court. Wimpee v. Wimpee, 641 So.2d 287 (Ala.Civ.App.1994). An agreement that by its terms is plain and free from ambiguity must be enforced as written. Jones v. Jones, 722 So.2d 768 (Ala.Civ.App.1998). An ambiguity exists if the agreement is susceptible to more than one meaning. Vainrib v. Downey, 565 So.2d 647 (Ala.Civ.App.1990). However, if only one reasonable meaning clearly emerges, then the agreement is unambiguous. Id.’
“R.G. v. G.G., 771 So.2d 490, 494 (Ala.Civ.App.2000).”

Belcher v. Belcher, 18 So.3d 946, 948 (Ala.Civ.App.2009). In this case, the divorce judgment did not define the term “net proceeds.” This court has defined “net sale proceeds” as the “gross proceeds less closing expenses and mortgage payoffs.” Brown v. Brown, 960 So.2d 712, 715 n. 3 (Ala.Civ.App.2006) (emphasis added). The plain language of the provision at issue did not require the husband to pay off the entire mortgage; it required only that he make the mortgage payments pending the sale of the house. There is no assertion that the husband did not make the payments as ordered. We conclude that the language of provision four of the divorce judgment is plain and unambiguous on its face, and, thus, it must be given its ordinary meaning. Because the divorce judgment did not require the husband to pay the mortgage indebtedness in its entirety before the sale of the Willoughby Road house, the trial court improperly excluded the amount of the mortgage payoff when calculating the “net proceeds” from the sale of the Willoughby Road house. The $101,135.19 that the wife received at the closing constituted the net proceeds derived from the sale of the house, and that is the amount that must be divided equally between the husband and the wife.

In reaching this conclusion, we recognize that the divorce judgment required each party to pay the debts incurred in his or her respective names. However, the wife’s assertion that the Willoughby Road house was a debt incurred only in the husband’s name because only he signed the promissory note is not well taken. The wife readily acknowledges that she and the husband jointly owned the Wil-loughby Road house — -they took title in both their names, with the right of surviv-orship. In making her assertion, the wife ignores the fact that both she and the husband signed the mortgage for the Wil-loughby Road house. The mortgage defines the “borrower” as both “Chivers Woodruff and wife, Julia M. Woodruff.” A mortgage is a “lien against property that is granted to secure an obligation (such as a debt) and that is extinguished upon payment or performance according to stipulated terms.” Black’s Law Dictionary 1031 (8th ed.2004). Black’s also uses the term “debtor” to define a mortgagor. Black’s Law Dictionary 1012 (6th ed.1990).

Based on the record before us, we conclude that the debt for the purchase of the Willoughby Road house was not incurred solely by the husband but was incurred by both the husband and the wife. Under the facts of this case, the wife’s assertion to the contrary is without merit.

On her cross-appeal, the wife contends that the trial court exceeded its discretion in ordering her to pay the husband $10,000 for personal property that was awarded to him in the original divorce judgment but that he had not received at the time of the hearing on the petitions for a rule nisi. The husband and the wife gave conflicting testimony as to whether the wife had “care and control” of the items at issue and the steps the parties took to locate those items.

“ ‘ “When ore tenus evidence is presented, a presumption of correctness exists as to the trial court’s findings on issues of fact; its judgment based on these findings of fact will not be disturbed unless it is clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. J & M Bail Bonding Co. v. Hayes, 748 So.2d 198 (Ala.1999); Gaston v. Ames, 514 So.2d 877 (Ala.1987). When the trial court in a nonjury case enters a judgment without making specific findings of fact, the appellate court ‘will assume that the trial judge made those findings necessary to support the judgment.’ Transamerica Commercial Fin. Corp. v. AmSouth Bank, 608 So.2d 375, 378 (Ala.1992). Moreover, ‘[u]nder the ore tenus rule, the trial court’s judgment and all implicit findings necessary to support it carry a presumption of correctness.’ Transamerica, 608 So.2d at 378. However, when the trial court improperly applies the law to [the] facts, no presumption of correctness exists as to the trial court’s judgment. Allstate Ins. Co. v. Skelton, 675 So.2d 377 (Ala.1996); Marvin’s, Inc. v. Robertson, 608 So.2d 391 (Ala.1992); Gaston, 514 So.2d at 878; Smith v. Style Advertising, Inc., 470 So.2d 1194 (Ala.1985); League v. McDonald, 355 So.2d 695 (Ala.1978). ‘Questions of law are not subject to the ore tenus standard of review.’ Reed v. Board of Trustees for Alabama State Univ., 778 So.2d 791, 793 n. 2 (Ala.2000). A trial court’s conclusions on legal issues carry no presumption of correctness on appeal. Ex parte Cash, 624 So.2d 576, 577 (Ala.1993). This court reviews the application of law to facts de novo. Allstate, 675 So.2d at 379 (‘[W]here the facts before the trial court are essentially undisputed and the controversy involves questions of law for the court to consider, the [trial] court’s judgment carries no presumption of correctness.’).” ’
“[Farmers Ins. Co. v. Price-Williams Assocs., Inc.,] 873 So.2d [252] at 254-55 [ (Ala.Civ.App.2003) ] (quoting City of Prattville v. Post, 831 So.2d 622, 627-28 (Ala.Civ.App.2002)).”

Kellis v. Estate of Schnatz, 983 So.2d 408, 412 (Ala.Civ.App.2007). In ore tenus proceedings, the trial court has the advantage of seeing and hearing the witnesses and assessing their demeanor and is in the best position to decide among conflicting testimony which testimony is to be believed. Woods v. Woods, 653 So.2d 312, 314 (Ala.Civ.App.1994). In this case, the trial court apparently rejected the wife’s assertions that she did not have care and control over the items and instead credited the testimony of the husband. Our deferential standard of review compels us to affirm the trial court’s judgment based on that conclusion because it is not “ “ ‘clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence.” ” ’ Kellis, 983 So.2d at 412. We cannot reweigh the evidence and substitute our judgment for that of the trial court. Ex parte R.E.C., 899 So.2d 272, 279 (Ala.2004).

The wife also contends that the trial court erred in not ordering the husband to execute the deed conveying the Willoughby Road house to the purchasers. The record indicates that the wife raised this issue for the first time in her Rule 59, Ala. R. Civ. P., motion to alter, amend, or vacate the order entered on the parties’ petitions for a rule nisi.

“It is well settled that ‘a trial court has the discretion to consider a new legal argument in a post-judgment motion, but is not required to do so,’ and that ‘[w]e will reverse only if the trial court abuses that discretion.’ Green Tree Acceptance, Inc. v. Blalock, 525 So.2d 1366, 1369-70 (Ala.1988). See also Diamond v. Aronov, 621 So.2d 263, 266-67 (Ala.1993); Blackmon v. King Metals Co., 553 So.2d 105, 106 (Ala.1989); D.J. Sherwood Transp., Inc. v. Road Shows, Inc., 656 So.2d 884, 887 (Ala.Civ.App.1995).”

Steele v. Rosenfeld, LLC, 936 So.2d 488, 494 (Ala.2005). The wife has failed to demonstrate that the trial court erred when it exercised its discretion not to consider this belatedly raised contention. This court is hopeful, however, that, with the disposition of this matter, the parties can work together to take the steps necessary to ensure that the Willoughby Road house is properly conveyed to the purchaser, thus avoiding even more litigation.

For the reasons set forth above, that portion of the judgment ordering the husband to pay the wife $27,539.55 for her share of the net proceeds of the sale of the Willoughby Road house is reversed, and the cause remanded for entry of a judgment consistent with this opinion. The remainder of the trial court’s judgment is affirmed.

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

APPEAL — REVERSED AND REMANDED.

CROSS-APPEAL — AFFIRMED.

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

      . Arguably, the $1,500 in earnest money the wife received also should be considered part of the "net proceeds”; however, the parties did not raise the issue of the earnest money on appeal.


source: Caselaw Access Project

author: BRYAN, Judge.

license: Public Domain

text:
    D.P. v. MADISON COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2080243.
    Court of Civil Appeals of Alabama.
    May 8, 2009.
    Brian D. Clark of Clark, Smith & Mes-servy, P.C., Huntsville, for appellant.
    Sharon E. Ficquette, gen. counsel, and Elizabeth L. Hendrix, staff atty., Department of Human Resources, for appellee.
   BRYAN, Judge.

D.P. (“the father”) appeals from judgments of the Madison Juvenile Court (“the juvenile court”) terminating his parental rights to P.P., a girl born in March 2008, and L.P., a boy born in May 2004 (collectively referred to hereinafter as “the children”).

The record reveals the following pertinent facts. The Madison County Department of Human Resources (“DHR”) first became involved with the children in May 2007, when DHR received a report asserting that the children had inadequate supervision and inadequate food and that the father and L.L. (“the mother”) were using drugs in the presence of the children. After an investigation, DHR took custody of the children; on July 11, 2007, based on a stipulation of the parties, the juvenile court found the children to be dependent and authorized their placement in foster care. On April 22, 2008, DHR petitioned the juvenile court to terminate the parental rights of the father and the mother to the children. In the petitions, DHR stated that the juvenile court had previously adjudicated the children to be dependent, that the condition of the parents was such that they were unable or unwilling to properly care for the children, that that condition was unlikely to change in the foreseeable future, and that DHR had been unable to locate a suitable relative to assume custody of the children.

On October 6, 2008, the juvenile court held an ore tenus proceeding regarding DHR’s petitions to terminate the father’s parental rights. The father was not present because he was incarcerated at the time of that proceeding. Lloyd Holloway, the DHR case worker assigned to the children, was the only witness to testify at the parental-rights-termination hearing.

Testimony relevant to this appeal revealed the following. Holloway stated that DHR had been unable to offer any services to the father because, he said, in June 2007, shortly after DHR had assumed temporary custody of the children, the father became incarcerated; Holloway testified that the father remained incarcerated at the time of the hearing. The permanency plan for the children was adoption by the current foster parent. Holloway stated that he has not been in contact with the father since his incarceration, but he was aware that the father had been writing the children letters.

Following Holloway’s testimony regarding DHR’s investigation of viable alternatives to termination of the father’s parental rights, DHR rested its case. The guardian ad litem for the children did not object to DHR’s petitions to terminate the father’s parental rights.

At the close of the evidence, the juvenile court orally granted DHR’s petitions to terminate the father’s parental rights. On October 20, 2008, the father moved the juvenile court to reopen the proceeding, citing his current incarceration and his belief that he would be “released in the near future” and alleging that he had made “significant progress in rehabilitating himself.” DHR opposed the father’s motion to reopen the proceeding, asserting that the father, through his own choices, had been incarcerated at the time of the hearing and had presented no evidence indicating that he would be immediately released from incarceration. The juvenile court denied the father’s motion.

On November 20, 2008, the juvenile court issued written judgments terminating the parental rights of the father to the children. Those judgments, in pertinent part, state:

“The [children], who previously had been adjudicated by the Court to be dependent, remain[ ] dependent....
“No parent or other relative has sought to exercise furnish [sic] material support for the child[ren]. During the time the child[ren] ha[ve] been in the care of [DHR] or a person designated by [DHR], the father has been incarcerated.
“[DHR] has considered less drastic alternatives to filing a petition to terminate parental rights. Neither [DHR] nor this Court believes that there are any alternatives less drastic than termination of parental rights available to serve the best interests of the ehild[ren]. Placement alternatives which were considered and determined not to be in the child[ren]’s best interests include placement with suitable relatives. Despite a diligent search,' [DHR] has been unable to locate a suitable relative to assume custody of the ehild[ren].
“The [father] of the children] [is] unable or unwilling to discharge [his] responsibilities to the child[ren]. The conduct and condition of the [father] is such that [sic] as to render [him] unable or unlikely to change in the foreseeable future.
“The best interests of the children] require that the parental rights of the [father] be terminated and the children] be placed in the permanent legal custody of [DHR] for the purposes of adoptive planning.”

On December 1, 2008, the father filed a “Motion to Reconsider,” alleging that the children are being well provided for by the foster parent and that it would be in the best interest of the children to remain in foster care until the father was released from incarceration “in the near future.” The juvenile court denied the father’s motion, and the father timely appealed.

On appeal, the father alleges that DHR failed to prove by clear and convincing evidence that he was unable or unwilling to care for the children. Our resolution as to that issue is dispositive of this appeal, thus we do not address the father’s remaining issue regarding whether DHR exhausted all viable alternatives before terminating his parental rights.

“This court’s standard of appellate review of judgments terminating parental rights is well settled. A juvenile court’s factual findings, based on ore tenus evidence, in a judgment terminating parental rights are presumed to be correct and will not be disturbed unless they are plainly and palpably wrong.” J.C. v. State Dep’t of Human Res., 986 So.2d 1172, 1183 (Ala.Civ.App.2007).

Section 26-18-7, Ala.Code 1975, states, in pertinent part:

“(a) If the court finds from clear and convincing evidence, competent, material, and relevant in nature, that the parents of a child are unable or unwilling to discharge their responsibilities to and for the child, or that the conduct or condition of the parents is such as to render them unable to properly care for the child and that such conduct or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parents. In determining whether or not the parents are unable or unwilling to discharge their responsibilities to and for the child, the court shall consider, and in cases of voluntary relinquishment of parental rights may consider, but not be limited to, the following:
“(1) That the parents have abandoned the child, provided that in such cases, proof shall not be required of reasonable efforts to prevent removal or reunite the child with the parents.
“(2) Emotional illness, mental illness or mental deficiency of the parent, or excessive use of alcohol or controlled substances, of such duration or nature as to render the parent unable to care for needs of the child.
“(3) That the parent has tortured, abused, cruelly beaten, or otherwise maltreated the child ....
“(4) Conviction of and imprisonment for a felony.
“(5) Unexplained serious physical injury to the child under such circumstances as would indicate that such injuries resulted from the intentional conduct or willful neglect of the parent.
“(6) That reasonable efforts by the Department of Human Resources or licensed public or private child care agencies leading toward the rehabilitation of the parents have failed.
“(7) That the parent has been convicted by a court of competent jurisdiction of any of the following:
“a. Murder or voluntary manslaughter of another child of that parent.
“b. Aiding, abetting, attempting, conspiring, or soliciting to commit murder or voluntary manslaughter of another child of that parent.
“c. A felony assault or abuse which results in serious bodily injury to the surviving child or another child of that parent....
“(8) That parental rights to a sibling of the child have been involuntarily terminated.”

(Emphasis added.)

This court has stated that clear and convincing evidence is “‘[ejvidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion.’ ” L.M. v. D.D.F., 840 So.2d 171, 179 (Ala.Civ.App.2002)(citing § 6 — 11—20(b)(4), Ala.Code 1975).

The father argues that DHR did not present clear and convincing evidence demonstrating that he was unable or unwilling to care for his children because, he states, DHR relied on his incarceration to support that assertion, but failed to enter evidence on the record showing that he is incarcerated as a result of a felony conviction. In response, DHR states that Holloway’s testimony revealed that the father had been incarcerated from June 2007 through the date of the termination hearing, approximately 16 months. DHR argues that that testimony is sufficient evidence to demonstrate that the father has been convicted of a felony because a felony conviction requires that a convicted felon serve at least one year and one day in a correctional facility. See § 13A-5-6(a), Ala.Code 1975.

After careful review, we find that there is nothing in the record to confirm that the father has been convicted of and imprisoned for a felony. We are not convinced that the father is incarcerated for a felony conviction simply based on the fact that he has been incarcerated for more than one year and one day. There is no evidence indicating that the father has been convicted of and imprisoned for a felony, nor is there sufficient evidence to show that the father has engaged in any behavior found in § 26 — 18—7(a)(1)—(8) that would support a finding of his inability or unwillingness to discharge his responsibility as a parent to the children. It is clear from the testimony of the only witness called by DHR that DHR was relying on the father’s incarceration to serve as the ground for terminating his parental rights. We cannot assume that the father has been convicted of a felony based on nothing more than Holloway’s testimony that the father has been incarcerated for approximately 16 months.

We conclude that DHR did not clearly and convincingly show that the father was convicted of and imprisoned for a felony to support a finding that he was unable or unwilling to care for the children. We, therefore, reverse the juvenile court’s judgment terminating the father’s parental rights.

REVERSED.

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

THOMAS and MOORE, JJ., concur in the result, without writings.

      . L.L., the mother, also had her parental rights terminated in the same judgments. She is not a party to this appeal.

      . A report from DHR dated July 22, 2008, states that the children were placed with the father from May 25, 2007, through August 6, 2007, when they were placed with their current foster parent. That fact conflicts with the testimony of Lloyd Holloway, a DHR case worker assigned to the children, indicating that the father was incarcerated in June 2007.

      . The juvenile court issued separate judgments regarding P.P. and L.P., but the judgments contained identical language.

      . Although we are not ruling on the issue whether DHR sufficiently overcame its burden regarding viable alternatives, we note that the evidence presented by DHR regarding viable alternatives is sparse.

      . This argument ignores tire possibility that the father is incarcerated and serving time for more than one misdemeanor conviction.

      . We recognize that other factors not mentioned in § 26 — 18—7 (a) (1) — (8) may be considered in parental-rights-termination cases. See In re Colbert, 474 So.2d 1143, 1146 (Ala.Civ.App.1985). However, the record does not indicate that DHR relied on any factors other than the father’s alleged conviction of and incarceration for a felony as a basis for terminating his parental rights.

      . We note that, by reversing the judgment in this case, we are not holding that the children are no longer dependent or that the father is entitled to custody of the children in the event the father is no longer incarcerated.


text:
    Lori HOOD v. Scott HOOD.
    2071070.
    Court of Civil Appeals of Aabama.
    May 15, 2009.

      Richard L. Watters, Mobile, for appellant.
    W. Gregory Hughes, Mobile, for appel-lee.
   THOMPSON, Presiding Judge.

Scott Hood (“the father”) and Lori Hood (“the mother”) were divorced by a 2001 judgment of the trial court that incorporated an agreement reached by the parties. The divorce judgment awarded the mother custody of the two minor children born of the parties’ marriage, awarded the father a standard schedule of visitation, ordered the father to pay $419 per month in child support, and required the father to provide health insurance for the benefit of the parties’ children and to reimburse the mother for any noncovered medical expenses. In addition, the divorce judgment stated that the parties waived all claims to alimony, but paragraph five of the judgment required the father to pay the mother $296 per month from income from a trust fund established for the benefit of the father; paragraph five of the divorce judgment also specified that the amount to be paid to the mother pursuant to that paragraph would increase if the monthly benefits paid to the father increased.

In April 2007, the father filed a petition for a rule nisi, seeking to have the mother held in contempt for allegedly denying him visitation with the parties’ two children. Also in April 2007, the father filed a complaint seeking to modify custody and to terminate his obligation to pay the mother amounts pursuant to paragraph five of the divorce judgment. The mother responded to the father’s petition for a rule nisi by filing an answer denying the material allegations in that petition. She also counterclaimed, seeking an increase in the father’s child-support obligation and seeking to have the father held in contempt for his failure to pay certain amounts as required by the 2001 divorce judgment.

The trial court conducted an ore tenus hearing. During that hearing, the mother requested that the trial court increase what she characterized as the father’s “alimony” obligation imposed by paragraph five of the 2001 divorce judgment. The father did not object to that request, and, therefore, we conclude that that claim was tried by the implied consent of the parties. See Rule 15(b), Ala. R. Civ. P.

On June 11, 2008, the trial court entered an order in which it denied the mother’s contempt claim and her claim seeking an increase in child support, denied the father’s claim seeking a modification of custody, and granted the father’s claim seeking to modify visitation. The parties each filed a “postjudgment” motion, and the trial court entered an order denying those purported motions. After submission to this court, we entered an order reinvesting the trial court with jurisdiction to enter a final judgment. On April 14, 2009, the trial court entered an order stating that all claims not addressed in the June 11, 2008, order were denied. The April 14, 2009, order, because it resolved the last of the pending issues between the parties, constituted the final judgment in this matter. Stockton v. CKPD Dev. Co., 936 So.2d 1065, 1069-70 (Ala.Civ.App.2005). The mother’s notice of appeal is deemed to have been held in abeyance until the entry of that final judgment, see Rule 4(a)(4), Ala. R.App. P., and the appeal is timely.

The record indicates that, at the time of the parties’ divorce, the father earned approximately $20,000 per year; the father testified that, at that time, he earned $8 per hour working 40-50 hours per week at a marina. The father also received additional income from a trust fund created for his benefit. The father’s testimony indicates that he received $700 per month in income from the trust after the parties’ divorce, although he stated that the amount had increased during the period after the divorce but before the modification proceeding at issue in this appeal.

At the time of the final hearing, the father lived in Wisconsin with his fiancée and their 13-month-old son. The father was employed by the Boys & Girls’ Club, earning $32,000 per year. The father admitted that his income had increased dramatically since the date of the divorce. The father admitted that he had received $12,000 in income from the trust fund in 2006, but he stated that he could not recall his 2007 income from the trust. According to the father, the trust fund had paid him $700 per month in “rent” since the time of the divorce until shortly before the final hearing in this matter. The father stated that, at the time of the final hearing, he received $200 per month in “rent” from the trust. On his Rule 32, Ala. R. Jud. Admin., child-support forms, the father listed his income as $2,666.67 in monthly income from his salary and $387 in “non-employment income,” for a total claimed monthly income of $3,053.67

In the week before the final hearing in this matter, the father purchased a home in Wisconsin. He stated that he had used $85,000 from the trust fund as a down payment on the new home. It appears that the payment from the corpus of the trust fund accounts for the decrease in the monthly “rent” payment the father receives from the trust fund.

The father testified that he had voluntarily increased his child-support payments so that, at the time of the hearing in this matter, he was paying the mother a total of $550 per month in child support rather than the $419 required by the 2001 divorce judgment. The father admitted that he does not personally pay his child-support obligation and that there is no child-support-withholding order in place. The mother presented evidence indicating that the father’s child-support obligation, as well as the $296 payment required by paragraph five of the divorce judgment, is paid from the trust fund each month by the trust-fund administrator.

The mother testified that she has a two-year degree in paralegal studies but that she works as a waitress during the lunch shift; the mother has not worked as a paralegal for approximately 10 years. The mother testified that her schedule as a waitress allows her to take the children to school each morning and to pick them up after school. The mother testified that if she worked as a paralegal she would have to pay for after-school care for the children and that her current job allowed her to work fewer hours while having approximately the same income she would have if she worked as a paralegal and paid for after-school care. The mother first testified that she earned approximately $2,000 per month in her current job, but she later amended that testimony to claim monthly earnings of $1,500 per month. The income-tax returns the mother submitted into evidence indicate that she claimed earned income of $7,665 in 2005 and $6,976 in 2006.

The mother asserted that the father was in contempt for failing to provide health-insurance coverage for the parties’ children. The father testified that the health-insurance coverage available through his employer in Wisconsin did not provide benefits in Alabama; he stated that he had made no other attempts to provide health insurance for the children. The father acknowledged that a health-insurance policy for the children was available through the private school the children attended, but he stated that he had not investigated that policy as a possible source of coverage for the children. At the time of the final hearing, the children received health benefits under Medicaid. The father acknowledged that he was in violation of the requirement set forth in the divorce judgment that he provide health-insurance coverage for the parties’ children.

The mother also testified that the father had failed to reimburse her for all uninsured medical costs as required by the divorce judgment. The mother claimed approximately $8,800 in unreimbursed medical expenses. The father acknowledged that he had received the mother’s claim seeking reimbursement of approximately $8,800 in counseling charges for one of the parties’ children. The father testified that he had not paid those expenses because, he asserted, they were not medical bills and had not been demonstrated to be medically necessary. The father did pay for braces for one of the children, and, at the final hearing in this matter, he expressed a willingness to pay for braces for the other child.

The parties’ children attend a private school paid for by members of the father’s family. The father’s grandmother had paid the tuition for the children until her death. Thereafter, the father’s father (hereinafter “the grandfather”) had paid the children’s tuition for several years. The grandfather testified that, for a number of reasons, he would no longer pay the private-school tuition after the 2008-2009 school year. At the time of the final 'hearing in this matter, the mother was attempting to obtain financial aid in order to enable the children to continue attending the private school if the trial court denied the father’s custody-modification claim.

With regard to the payment required under paragraph five of the divorce judgment, the father acknowledged that although the amount of income he received from the trust fund had increased after the parties’ divorce, he had not increased the payment to the mother as required by that paragraph. We note that paragraph four of the divorce judgment specifies that each party waived any claim to alimony. However, during the hearing in this matter, both parties characterized the $296 payment under paragraph five as “alimony,” and the mother has reported that payment as income on her income-tax returns.

On appeal, the mother argues that the trial court erred in denying her claim seeking a modification of child support. In general, a trial court may modify a parent’s child-support obligation upon a showing of a substantial and continuing change in circumstances. Berryhill v. Reeves, 705 So.2d 505, 508 (Ala.Civ.App.1997). “Factors indicating a change of circumstances include a material change in the needs, conditions, and circumstances of the child.” State ex rel. Shellhouse v. Bentley, 666 So.2d 517, 518 (Ala.Civ.App.1995). In addition, there is a presumption in favor of a child-support modification when the application of the Rule 32 child-support guidelines would result in a change in the support payment of more than 10%. Rule 32(A)(3)(a), Ala. R. Jud. Admin.; Ex parte Moore, 805 So.2d 715, 719 (Ala.2001); Reeves v. Reeves, 894 So.2d 712 (Ala.Civ.App.2004).

The mother argues, and the father conceded before the trial court, that the father’s earned income has increased dramatically since the entry of the 2001 divorce judgment. See Rule 32(A)(3)(a). The mother contends that her gross income is $1,500 per month and that the father’s gross income for purposes of calculating child support is $3,804 per month. The mother calculates the father’s gross income by adding to his $3,053.67 claimed total monthly income certain amounts paid on his behalf by the trust fund. Rule 32(B)(2)(a) defines “gross income” for the purposes of calculating child support as:

“income from any source, and includes, but is not limited to, salaries, wages, commissions, bonuses, dividends, severance pay, pensions, interest, trusts, annuities, capital gains, Social Security benefits, workers’ compensation benefits, unemployment insurance benefits, disability insurance benefits, gifts, prizes, and preexisting periodic alimony.”

(Emphasis added.) Thus, the mother is correct that amounts paid on behalf of the father by the trust fund are income attributable to the father for the purposes of determining his child-support obligation.

In denying the mother’s claim for a modification of child support, the trial court did not incorporate into its judgment the Rule 32 child-support forms. See Rule 32(E), Ala. R. Jud. Admin. (The child support forms “shall be filed in each action ... and shall be of record and shall be deemed to be incorporated by reference in the court’s child-support order.”). Thus, this court is unable to discern the trial court’s findings with regard to the amount of gross income attributable to each party for purposes of calculating child support, and we cannot determine how the trial court reached its determination that no modification of child support was warranted.

Further, although the trial court could deviate from the application of the child-support guidelines, it made no findings regarding whether it had intended to do so, and it set forth no findings of fact justifying such a deviation. See Rule 32(A)(a), Ala. R. Jud. Admin, (setting forth reasons the trial court may deviate from the child-support guidelines); State Dep’t of Human Res. v. J.B., 628 So.2d 889, 891 (Ala.Civ.App.1993) (“[I]n order for a court to deviate from the guidelines, there must be written findings of fact based upon evidence presented to the court to support such a deviation.”); and Gautney v. Raymond, 709 So.2d 1279, 1281 (Ala.Civ.App.1998) (“The trial court may deviate from the guidelines if it makes a written finding on the record indicating that the application of the guidelines would be unjust or inappropriate ... or where the court determines ... that application of the guidelines would be manifestly unjust or inequitable.”). We are unable to determine how the trial court reached its determination of the child-support issue, whether it intended to deviate from the child-support guidelines, and, if so, the reason for that deviation. Accordingly, we reverse that part of the trial court’s judgment pertaining to child support, and we remand the cause for the trial court to calculate the father’s child-support obligation pursuant to the Rule 32 child-support guidelines. We note that we do not necessarily agree with the mother’s calculation of the father’s gross monthly income, however; the amount of the father’s gross income under Rule 32 is a matter to be determined by the trier of fact. Further, the trial court may consider the father’s argument that the mother is voluntarily underemployed, as well as the other arguments asserted by the parties, in reaching its child-support determination.

The mother also argues that the trial court erred in refusing to find the father in contempt for failing to comply with the terms of paragraph five of the divorce judgment. Specifically, the mother contends that the father was in contempt for his failure to increase the pay-merit due her under paragraph five as the income he received from the trust fund increased. The mother cites T.L.D. v. C.G., 849 So.2d 200, 205 (Ala.Civ.App.2002), in which this court stated:

“Whether a party is in contempt of court is a determination committed to the discretion of the trial court. See Coleman v. Coleman, 628 So.2d 698 (Ala.Civ.App.1993). To hold a party in contempt under either Rule 70A(a)(2)(C)(ii) or (D), Ala. R. Civ. P., the trial court must find that the party willfully failed or refused to comply with a court order. See Carr v. Broyles, 652 So.2d 299 (Ala.Civ.App.1994). Inability to pay is a defense to a contempt action in a child-support-arrearage case. Id.”

In this case, the father openly acknowledged that he had not complied with that part of paragraph five that required him to increase the payment to the mother in proportion to the increase in the amount of funds he received from the trust fund. The father admitted that the funds he received from the trust fund had increased over the years since the divorce and that he had not increased the proportionate payment to the mother as required by paragraph five of the divorce judgment. The father does not contend that he was unable to pay the additional amount. Rather, he contends that the amounts paid by his family or the trust fund on his behalf exceed the amount he was required to have paid under paragraph five.

However, although it is clear that the father did not comply with the provisions of paragraph five of the divorce judgment, the record does not contain any evidence presented to the trial court regarding when the amounts paid to the father by the trust fund increased or by how much those payments had increased. Thus, there was no way for the trial court to determine, based on the evidence presented to it, when, and by how much, the payments to the mother should have been increased pursuant to the requirements of paragraph five. Given the lack of evidence in the record pertaining to the specific facts of this issue, we cannot say that the trial court exceeded its discretion in failing to find the father in contempt for his failure to comply with the terms of paragraph five of the divorce judgment.

We note that, in asserting her argument pertaining to contempt with regard to paragraph five, the mother cursorily states that the trial court should have increased the payment required under paragraph five of the divorce judgment. The mother’s “argument” with regard to a modification of paragraph five is not properly supported by any citations to authority demonstrating that the payment imposed by paragraph five is an obligation subject to modification or that the circumstances of this case warrant such a modification. Accordingly, we decline to address the mother’s “argument” that paragraph five should have been modified. See Asam v. Devereaux, 686 So.2d 1222, 1224 (Ala.Civ.App.1996) (An appellate court “will address only those issues properly presented and for which supporting authority has been cited.”).

The mother also contends that the father should be held in contempt for his failure to provide health-insurance coverage for the parties’ children, as was required under the divorce judgment. The father presented evidence indicating that he had attempted to provide health-insurance coverage through his employer but that no health-insurance benefits were available to the children from that policy because there are no providers in Alabama that accept that insurance. He also admitted that health-insurance coverage was available through the children’s school but that he had not investigated the possibility of obtaining that coverage.

The divorce judgment stated that the father would maintain health and medical insurance for the benefit of the children until the children reach the age of 21 years. The judgment did not tie procurement of insurance to the father’s ability to obtain that insurance through his employer. The fact that the father’s employer in Wisconsin did not offer insurance that would provide coverage to his children in Alabama did not excuse the father from his obligation to maintain health-insurance coverage for the children. There was no evidence as to the cost of the health insurance provided by the children’s school; thus, there was no evidence indicating that the father was unable to afford that insurance. Also, there was no evidence indicating that the father even attempted to find other affordable insurance for the children.

The father failed to obey the judgment requiring him to maintain health insurance for the children. Because he failed to investigate alternatives to employer-provided coverage, the father could not offer any evidence indicating that he had the inability to pay for the children’s health insurance. Accordingly, the trial court’s finding that the father was not in contempt for failing to provide the health-insurance coverage that was required by the divorce judgment is not supported by the evidence and is plainly and palpably wrong. Stack v. Stack, 646 So.2d 51, 56 (Ala.Civ.App.1994) (“[Wjhether a party is in contempt of court is a determination committed to the sound discretion of the trial court, and, absent an abuse of that discretion or unless the judgment of the trial court is unsupported by the evidence so as to be plainly and palpably wrong, this court will affirm.”). Thus, we must conclude that the trial court exceeded its discretion in not finding the father in contempt for his failure to provide the required insurance coverage. That portion of the judgment finding that the father was not in contempt for failing to procure insurance for the children is reversed, and on remand the trial court is to enter an order consistent with this opinion.

The mother also contends that the trial court erred in failing to require the father to reimburse her for what she claims is $3,800 in medical expenses. The record demonstrates that the amounts for which the mother seeks reimbursement are for counseling services for one of the parties’ children. Before the trial court, the father disputed that the counseling services were necessary and that they constituted medical expenses subject to reimbursement under the divorce judgment. The mother did not address that argument before the trial court, nor has she addressed that argument before this court. It is not the function of an appellate court to create arguments or to perform research for an appellant, Spradlin v. Spradlin, 601 So.2d 76, 79 (Ala.1992); to do so would run the risk of reversing the trial court’s judgment based on an argument or theory not presented to the trial court. Accordingly, given the arguments of the parties with regard to this issue, we cannot hold the trial court in error.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

PITTMAN, BRYAN, and THOMAS, JJ., concur.

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

      . The June 7, 2001, order divorcing the parties reserved the issue of child support until the parties submitted child-support forms required under Rule 32, Ala. R. Jud. Admin. The father’s testimony indicates that the trial court later determined the father’s child-support obligation to be $419 per month, but the record does not contain the order establishing that obligation. We note that the order establishing the father’s initial child-support obligation resolved the last of the pending issues between the parties with regard to their divorce, and, therefore, that order constituted the final divorce judgment. Stockton v. CKPD Dev. Co., 936 So.2d 1065, 1069-70 (Ala.Civ.App.2005). That order, however, is not contained in the record on appeal, and, therefore, we do not know the exact date of the final divorce judgment. Accordingly, for the purposes of this opinion, we refer to the divorce judgment as having been entered in 2001.

      . Specifically, paragraph five of the divorce judgment states:
      “The parties agree that the [father] shall pay to the [mother] the sum of $296 per month from the income of the trust which is identified as 'The Helen Trane Hood Trust for the Benefit of Benjamin Scott Hood,’ with said monthly payment to increase by the same percentage as the increase in the monthly benefits increase which are paid to the [father] from said Trust.”

      . A postjudgment motion filed pursuant to Rule 59, Ala. R. Civ. P., may only be taken in reference to a final judgment. Malone v. Gainey, 726 So.2d 725, 725 n. 2 (Ala.Civ.App.1999).

      . By order dated November 19, 2008, the Alabama Supreme Court amended Rule 32, Ala. R. Jud. Admin., including the child-support guidelines, effective January 1, 2009. By order dated February 25, 2009, the Alabama Supreme Court amended Rule 32(A)(4) and Rule 32(B)(7), Ala. R. Jud. Admin., effective March 1, 2009. Those amendments are not applicable in this case.

      . In both 2005 and 2006, the mother reported $3,552 in alimony income, which represents 12 monthly payments of $296.

      . We reject the mother’s argument that in denying her contempt claim the trial court "effectively eliminated paragraph five” from the divorce judgment. Nothing in the trial court's modification judgment has altered the father's obligation with regard to paragraph five.


text:
    Roberto PISCHEK et al. v. BALDWIN YOUTH SERVICES, INC., and the Board of Adjustment of the Town of Silverhill.
    2071033.
    Court of Civil Appeals of Alabama.
    May 15, 2009.
    David Michael Huggins of Turner, On-derdonk, Kimbrough, Howell, Huggins & Bradley, P.A., Mobile, for appellants.
    Marion E. Wynne and Robert W. Waller, Jr,, of Wilkins, Bankester, Biles & Wynne, P.A., Fairhope, for appellees.
   BRYAN, Judge.

Roberto Pischek and 37 other residents (“the residents”) of the Town of Silverhill (“Silverhill”) who live in an area of Silver-hill zoned for single-family residences appeal from a summary judgment entered against them by the Baldwin Circuit Court in their appeal from a decision of the Board of Adjustment (“the Board”) of Sil-verhill granting Baldwin Youth Services, Inc. (“BYS”), a special exception allowing it to build a group home for girls in the area of Silverhill where the residents live. We affirm.

BYS is a nonprofit corporation that, among other things, operates homes for children up to the age of 17 who are in need of supervision. After receiving assurances from the mayor and two members of the city council of Silverhill that it would not have any problem securing the necessary permits to build a group home for girls on a three-acre tract (“the three-acre tract”) in an area of Silverhill zoned R-l, which restricted its use to single-family residences, BYS purchased the three-acre tract in February 2000 for $42,000.

On June 14, 2002, BYS applied to the Board for a special exception from the Silverhill zoning ordinance that would allow BYS to build a residential home for up to 16 girls determined to be in need of supervision by the Juvenile Court of Baldwin County on the three-acre tract. In accordance with the provisions of the Sil-verhill Zoning Ordinance (“the zoning ordinance”), the Planning Commission of Sil-verhill reviewed BYS’s application, its site plan, and its architectural drawings and recommended that the Board deny BYS’s application. After giving the notice to interested parties required by the zoning ordinance, the Board held a public hearing on BYS’s application. Thereafter, the Board denied BYS’s application. BYS did not appeal from that decision of the Board.

On July 17, 2003, BYS applied a second time for a special exception that would allow it to build the group home on the three-acre tract. Although the Board held a public hearing on BYS’s second application, it declined to consider BYS’s second application on the ground that the zoning ordinance made no provision for such a second application. BYS appealed from that decision to the Baldwin Circuit Court (“the circuit court”). The circuit court held that, because the zoning ordinance did not prohibit a second application for a special exception, BYS had a right to make such an application and remanded the matter to the Board with instructions for the Board to afford BYS a full and fair hearing regarding its second application. On remand, the Board held another public hearing regarding BYS’s second application and denied it.

Following the denial of its second application, BYS filed a complaint with the United States Department of Housing and Urban Development (“HUD”) alleging that the Board had discriminated against BYS on the basis of a lack of familial status of the residents who would be living in the group home. The Board and BYS elected to attempt to resolve the complaint through mediation pursuant to federal law. The mediation resulted in the Board and BYS reaching a confidential settlement agreement (“the settlement agreement”). In the settlement agreement, the Board and BYS agreed that, in exchange for BYS’s dismissing its complaint with HUD, the Board would grant BYS a special exception to build the group home on the three-acre tract. The Board instructed BYS to file another application for the special exception, which the Board would set for a public hearing and grant without BYS’s having to appear at the hearing. Accordingly, BYS filed a third application. The Board set the third application for a public hearing and granted the application without BYS’s appearing at the hearing.

The residents appealed to the circuit court from the Board’s decision to grant BYS the special exception. Thereafter, BYS sought and obtained leave to intervene in the residents’ appeal. The residents moved the circuit court for a summary judgment reversing the Board’s grant of the special exception to BYS, and BYS filed a cross-motion seeking a summary judgment upholding the decision of the Board. The circuit court denied the residents’ summary-judgment motion and entered a summary judgment upholding the decision of the Board to grant BYS the special exception to build the group home on the three-acre tract. Explaining its rationale, the circuit court stated that it had concluded that the settlement agreement was binding on all parties.

The residents timely appealed to the supreme court. Determining that the residents’ appeal was within this court’s appellate jurisdiction, the supreme court transferred the residents’ appeal to this court.

“ ‘We review a summary judgment de novo.’ Potter v. First Real Estate Co., 844 So.2d 540, 545 (Ala.2002) (citation omitted). ‘Summary judgment is appropriate only when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” ’ Ex parte Rizk, 791 So.2d 911, 912 (Ala.2000) (citations omitted).
“ ‘In determining whether the non-movant has created a genuine issue of material fact, we apply the “substantial-evidence rule” — evidence, to create a genuine issue of material fact, must be “substantial.” § 12-21-12(a), Ala.Code 1975. “Substantial evidence” is defined as “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).’
“Callens v. Jefferson County Nursing Home, 769 So.2d 273, 278-79 (Ala.2000) (footnote omitted). In deciding a motion for a summary judgment, or in reviewing a summary judgment, the court must accept the tendencies of the evidence most favorable to the nonmoving party and must resolve all reasonable factual doubts in favor of the nonmoving party. Bruce v. Cole, 854 So.2d 47 (Ala.2003), and Pitney Bowes, Inc. v. Berney Office Solutions, 823 So.2d 659 (Ala.2001). See Ex parte Helms, 873 So.2d 1139 (Ala.2003), and Willis v. Parker, 814 So.2d 857 (Ala.2001).”

Hollis v. City of Brighton, 885 So.2d 135, 140 (Ala.2004).

On appeal, the residents argue that the circuit court erred in entering a summary judgment upholding the Board’s decision based on the settlement agreement because, they say, the Board has authority to grant a special exception only if the zoning ordinance authorizes it to do so and, they assert, the zoning ordinance did not authorize the Board to grant a special exception for a group home for girls in an area zoned R-l. However, the zoning ordinance does indeed authorize the Board to grant a special exception that would allow the building of a group home for children under the age of 17 in an area zoned R-l; the zoning ordinance expressly provides that one of the categories of uses that the Board may allow by special exception in an area zoned R-l is an “[ijnstitution for children.” In pertinent part, the Random House Webster’s Unabridged Dictionary 988 (2d ed. 2001) defines “institution” as “1. an organization, establishment, foundation, society, or the like, devoted to the promotion of a particular cause or program, esp. one of a public, educational, or charitable character: This college is the best institution of its kind. 2. the building devoted to such work.” (Emphasis omitted.) Thus, the term “institution for children” is broad enough to encompass a group home for female children under the age of 17 who are in need of supervision. Therefore, the zoning ordinance authorized the Board to grant a special exception allowing a group home for female children under the age of 17 in an area zoned R-l. Because the ordinance authorized the Board to grant such a special exception, the Board did not exceed its authority in entering into the settlement agreement. Consequently, the circuit court did not err in basing its judgment on the settlement agreement.

The residents’ next argue that the circuit court erred in upholding the Board’s decision to grant BYS a special exception because, the residents say, BYS failed to comply with the procedural requirements of the zoning ordinance in making its third application for a special exception. Specifically, the residents argue that BYS, in making its third application, failed to comply with the requirements of the zoning ordinance that it obtain the Planning Commission’s review of its site plan and architectural drawings before the Board granted it a special exception, that it file a site plan before the Board granted it a special exception, and that it notify interested parties of its third application for a special exception. However, the Board entered into the settlement agreement as a result of a complaint filed by BYS alleging that the Board had discriminated against BYS in denying BYS’s first and second applications. The Board instructed BYS to file a third application as a mere formality. BYS had fulfilled the procedural requirements of the zoning ordinance in making its first and second applications. Therefore, we find no merit in the residents’ argument that BYS had not fulfilled the procedural requirements of the zoning ordinance.

Finally, the residents argue that the Board could not privately agree to grant BYS a special exception that was substantively and procedurally contrary to the requirements of the zoning ordinance. However, as we have explained above, the Board’s granting the special exception was not substantively contrary to the zoning ordinance because the zoning ordinance authorizes the Board to allow “[ijnstitu-tions for children” in areas zoned R-l by means of special exceptions. Moreover, the Board’s granting BYS the special exception was not procedurally contrary to the zoning ordinance because BYS had complied with the procedural requirements of the zoning ordinance in making its first and second applications for a special exception — the third application was a mere formality. Therefore, we find no merit in the residents’ final argument.

Accordingly, we affirm the summary judgment entered by the circuit court upholding the Board’s grant of a special exception to BYS.

AFFIRMED.

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

THOMAS and MOORE, JJ., concur in the result, without writings.

      . The 37 other residents are Cheryl Pischek, Mike F. Bauman, Emily Kostelecky, George Strahan, Shirley Strahan, Bobby Shumack, James C. Morton, Thomas Moss, David Yoas, Doris Yoas, Dwight Pelfrey, Linda Pelfrey, William L. Ackis, Pam Ackis, Vera Beuttner, Joseph Schreck, Cissy Schreck, Wayne White, Cathy White, Jim Hinote, Sherry Hinote, Catherine L. Smith, Charlotte Kostelecky, Marjorie Banks, Debbie McAdams, T.A. Box, Patricia Box, Kathy Jackson, Jerome Dear-born, Barbara Dearborn, Irene Forsman, Carmelita Brant, Fran Stanley, Jodi M. Laird, Brian Johnson, Lauree Johnson, and Angela Baldwin.


author: KELLUM, Judge.

text:
    STATE of Alabama v. Richard Jan SMITH.
    CR-08-0281.
    Court of Criminal Appeals of Alabama.
    May 1, 2009.
    Troy King, atty. gen., and John M. Porter, asst. atty. gen., for appellant.
    Juraldine Battle-Hodge, Montgomery, for appellee.
   KELLUM, Judge.

Richard Jan Smith was indicted by a Montgomery County grand jury for the unlawful possession of a controlled substance, a violation of § 13A-12-212(a)(l), Ala.Code 1975; failing to have his seat belt properly fastened, a 'violation of § 32-5B-4, Ala.Code 1975; driving while his license was suspended or revoked, a violation of § 32-6-19, Ala.Code 1975; and failing to display evidence of insurance, a violation of § 32-7A-16(2), Ala.Code 1975. On November 8, 2008, Smith pleaded guilty to unlawful possession of a controlled substance. During the guilty-plea hearing, counsel for Smith informed the circuit court that the traffic violations for which Smith had been indicted had been “taken care of with the City.” Following the November 3, 2008, hearing, the State learned that counts three and four of the indictment against Smith — driving while his license was revoked and failing to display proof of insurance — were still pending. On November 13, 2008, Smith appeared a second time before the circuit court to plead guilty to the remaining counts of the indictment. At that hearing, the circuit court dismissed the remaining counts of the indictment.

On November 17, 2008, the State filed a motion to reconsider. In its motion, the State contended that Rule 2.2(a), Ala. R.Crim. P., required that Smith’s traffic offenses be adjudicated in the circuit court because those offenses arose out of the same incident as his felony possession charge. On November 20, 2008, the circuit court granted the State’s motion to reconsider and immediately called the case for trial. The transcript of the Novembér 20, 2008, proceedings, in its entirety, states:

“THE COURT: We are about to start the trial of Richard Smith. Call your first witness.
“Do you have any witnesses here?
“[PROSECUTOR]: I wasn’t aware that it was set for trial.
“THE COURT: Case dismissed.”

(R. 2.) The circuit court, on November 20, 2008, made the following entry on the case-action-summary sheet: “Motion to Reconsider granted. Case called for trial, State had no witnesses. Disposed as to pending charges.” Pursuant to Rule 15.7, Ala. R.Crim. P., the State appeals the circuit court’s ruling.

The State contends on appeal that the circuit court’s dismissal of the charges against Smith after it had called the case for trial violated the State’s right to procedural due process because, it argues, the State had no prior notice that a trial had been scheduled on November 20, 2008.

“Procedural due process, as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, § 6, of the Alabama Constitution of 1901, broadly speaking, contemplates the rudimentary requirements of fair play, which include a fair and open hearing before a legally constituted court or other authority, with notice and the opportunity to present evidence and argument, representation by counsel, if desired, and information as to the claims of the opposing party, with reasonable opportunity to controvert them. See Pike v. Southern Bell Telephone & Telegraph Co., 263 Ala. 59, 81 So.2d 254 (1955); Vernon v. State, 245 Ala. 633, 18 So.2d 388 (1944). It is generally understood that an opportunity for a hearing before a competent and impartial tribunal upon proper notice is one of the essential elements of due process.”

Ex parte Weeks, 611 So.2d 259, 261 (Ala.1992).

In State v. Morrell, 8 So.3d 353 (Ala.Crim.App.2008), the trial court, after conducting a status conference, granted Mor-rell’s motion to suppress and dismissed the charges against Morrell based on the State’s failure to produce any evidence as to why the motion to suppress should not be granted. The State appealed, arguing that the trial court erred in granting Mor-rell’s motion to suppress because the court did not give the State notice that the motion to suppress would be considered at the status conference. 8 So.3d at 354. The State contended that, as a result of the lack of notice, it was not prepared to go forward with a hearing on the motion to suppress and was effectively denied an opportunity to present evidence in opposition to the motion. 8 So.3d at 355. This court, relying on Ex parte Weeks, supra, agreed with the State and reversed the trial court’s order granting Morrell’s motion to suppress and dismissing the charges against Morrell. We held:

“ ‘[JJustice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true.’ Snyder v. Massachusetts, 291 U.S. 97, 122, 54 S.Ct. 330, 78 L.Ed. 674 (1934), overruled in part on other grounds, Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). The balance of justice was not kept true in this case because the State was denied proper notice of the hearing on the motion to suppress. The trial court erred when it granted Morrell’s motion to suppress and dismissed the case against him based on the State’s failure to present evidence at a hearing on a motion to suppress when the State had not been notified that the motion would be the subject of the hearing.”

Morrell, 8 So.3d at 356.

Here, just as in Morrell, the record does not indicate that the State received notice that the circuit court intended to conduct a trial on November 20, 2008, at which it would consider evidence pertaining to the remaining criminal charges pending against Smith. Indeed, the transcript of the November 20, 2008, proceedings before the circuit court indicate that the prosecutor was unaware that it was set for trial. The circuit court granted the motion to reconsider and on the same day called the matter for trial with no apparent notice to the State, as established by the case-action-summary sheet.

The circuit court erred when it proceeded to trial on the last two counts of the indictment against Smith without proper notice of the trial to the State. The State’s failure to present evidence, through the testimony of witnesses or otherwise, at the November 20, 2008, trial was through no fault of its own. Accordingly, the circuit court’s order dismissing the remaining charges against Smith is reversed, and this cause is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

WELCH and WINDOM, JJ., concur.

WISE, P.J., recuses herself.


text:
    James Alter BIGHAM v. STATE of Alabama.
    CR-07-1521.
    Court of Criminal Appeals of Alabama.
    May 1, 2009.

      Shannon A. Rash, Dothan, for appellant.
    Troy King, atty. gen., and Cecil G. Bren-dle, Jr., asst. atty. gen., for appellee.
   KELLUM, Judge.

The appellant, James Alter Bigham, was convicted of domestic violence in the first degree, a violation of § 13A-6-130, Ala. Code 1975. The circuit court sentenced Bigham to 25 years’ imprisonment. In addition, it ordered Bigham to pay a $2,000 fine and $750 to the crime victims compensation fund.

The evidence established that on September 29, 2005, Bigham and Pamela Walker had been in a dating relationship for five months and, at that time, were living together in Walker’s house. Walker testified that the pair had been experiencing problems in their relationship when Bigham wrote her a letter seeking to end the relationship. Walker also wanted to end the relationship. Walker testified that she subsequently gathered Bigham’s clothes and put them inside by the front door for Bigham to pick up. Walker then left her house and did not return until 11:00 p.m. that same evening in order to avoid a confrontation with Bigham.

Walker testified that after she put her children to bed and while she was ironing clothes, Bigham entered her house and asked her why his clothes were by the door. According to Walker, Bigham questioned why she did not want to be with him and then proceeded to hit her; she hit him back. Walker and Bigham fought for awhile, and eventually Bigham left the room to go to the bathroom. Walker testified that when Bigham returned he complained that she had “marked” his face and told her that he did not “like for nobody to put marks on him.” Walker testified that there was a scratch on Bigham’s face. Walker testified that Bigham then pushed her on the couch, pinned her down so that her arms were secured under his legs, and “put the iron” to her chest. Walker testified that as Bigham pressed the hot iron to her flesh her skin came off. Walker testified that she begged Bigham to stop, but he repeatedly pressed the hot iron against her skin. Pictures depicting burn wounds on Walker’s chest were admitted into evidence at trial. Walker testified that she drove herself to the hospital for medical treatment. Walker remained at the hospital for three hours and was released.

Bigham testified that Walker scratched his “whole face up.” According to Bigham, when he returned from looking at his face in the bathroom, Walker threatened to burn him with the iron. Bigham testified that he yanked the iron out of her hand and accidentally “touched” the iron to Walker’s chest. Bigham denied pinning Walker down. Bigham denied that he repeatedly pressed the hot iron to Walker’s chest.

On appeal, Bigham contends that a fatal variance existed between the allegations in the indictment and the evidence presented at trial because, he said, the evidence presented at trial did not establish that he recklessly engaged in conduct that created a grave risk of death to another person as was charged in the indictment. The State contends that the issue is not preserved for review on appeal. However, our review of the record indicates that defense counsel presented this issue to the circuit court during the course of the trial and again in a timely filed motion for new trial. Therefore, we will consider this issue.

A copy of the indictment in the record on appeal provides, in its entirety, as follows:

“The Grand Jury of said county charge that, before the finding of this indictment, JAMES ALTER BIGHAM whose name is otherwise unknown to the Grand Jury, did commit the crime of Assault 1st Degree (Section 13A-6-20 Code of Alabama) under circumstances manifesting extreme indifference to the value of human life, he recklessly engaged in conduct which creates a grave risk of death to another person, to-wit: [] WALKER, and thereby causes serious physical injury to another person, to wit: [ ] WALKER, with the victim being a current or former spouse, parent, child, a person with whom he had a dating relationship, in violation of [§ J13A-6-130 of the Code of Alabama, against the peace and dignity of the State of Alabama.”

Section 13A-6-130, Ala.Code 1975, defines the criminal offense of domestic violence in the first degree as follows:

“A person commits the crime of domestic violence in the first degree if the person commits the crime of assault in the first degree pursuant to § 13A-6-20, and the victim is ... a person who has or had a dating or engagement relationship with the defendant.”

Section 13A-6-20, Ala.Code 1975, defines assault in the first degree, in pertinent part, as follows:

“(a) A person commits the crime of assault in the first degree if:
“(1) With intent to cause serious physical injury to another person, he causes serious physical injury to any person by means of a deadly weapon or a dangerous instrument; or
“(2) With intent to disfigure another person seriously and permanently, or to destroy or amputate or disable permanently a member or organ of his body, he causes such an injury to any person; or
“(3) Under circumstances manifesting extreme indifference to the value of human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes serious physical injury .... ”

Section 13A-1-2(14), Ala.Code 1975, defines “serious physical injury” as a “[p]hysical injury which creates a substantial risk of death or which causes serious and protracted disfigurement, [or] protracted impairment of health .... ”

A fatal variance between allegations in an indictment and proof of those allegations presented at trial exists when the State fails to adduce any proof of a material allegation of the indictment or where the only proof adduced is contrary to a material allegation in the indictment. Johnson v. State, 584 So.2d 881, 884 (Ala.Crim.App.1991). “Alabama law requires a material variance between the indictment and the proof adduced at trial before a conviction will be overturned. Ex parte Collins, 385 So.2d 1005 (Ala.1980).” Brown v. State, 588 So.2d 551, 558 (Ala.Crim.App.1991).

The indictment in the instant case charged that Bigham committed assault in the first degree by recklessly engaging in conduct that created a grave risk of death to another person. The particular charge in the indictment falls under subsection (a)(3) of the definition of assault in the first degree found in § 13A-6-20. The indictment tracks subsection § 13A-6-20(a)(3), which provides, in pertinent part, that a person commits assault in the first degree if “he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes serious physical injury.”

The charge in the indictment required the State to present sufficient evidence that Bigham created a grave risk of death to Walker, thereby causing her serious physical injury. The evidence presented at trial established that Bigham repeatedly pressed a hot iron to Walker’s chest. As a result of Bigham’s actions, Walker sustained burns to her chest that required medical treatment and resulted in the disfigurement of her chest. Walker sought medical treatment at a local hospital and was released from treatment after three hours. Thus, the State presented sufficient evidence that Walker sustained a serious physical injury as that term is defined in § 13A-1-2(14), Ala.Code 1975. However, the State did not present sufficient evidence that Bigham’s actions, albeit horrific, created a grave risk of death to Walker.

We note that Rule 13.5, Ala. R.Crim. P., allows for the amendment of an indictment if the defendant consents, with two exceptions — the State may not change the charged offense and the State may not charge a new offense not contemplated by the original indictment. In addition to a formal amendment, an indictment can be informally amended by the circuit court when charging the jury. A circuit court may effectively amend an indictment by instructing the jury on charges other than those stated in the indictment. Wright v. State, 902 So.2d 720 (Ala.Crim.App.2004); Ash v. State, 843 So.2d 213 (Ala.2002), overruled on other grounds by Ex parte Seymour, 946 So.2d 536 (Ala.2006). Thus, in the instant case, the circuit court could have amended the indictment by charging the jury under subsections (a)(1) or (a)(2) of § 13A-6-20, Ala. Code 1975.

However, the circuit court did not do that here. The jury instructions given by the circuit court in the instant case followed the charges in the indictment. The circuit court charged the jury on the elements of assault in the first degree as defined by § 13A-6-20(a)(3). The court gave the following instruction:

“A person commits the crime of assault in the first degree if he causes serious physical injury to another person while recklessly engaging in conduct which creates a grave risk of death to another person ....
“To convict, the State must prove three elements.
“Assault in the first degree. Number one, that the defendant caused serious physical injury to any person; namely, in this case, Ms. Walker, the victim.
“Number two, that the defendant was recklessly engaging in conduct which created a grave risk of death.
“And number three, the defendant was acting under circumstances manifesting extreme indifference to human life.”

(R. 58-59.) Because the circuit court instructed the jury solely based on the charge set forth in the indictment, it did not effectively amend the indictment.

Because a fatal variance existed between the allegations in the indictment and the evidence presented at trial, we must reverse Bigham’s conviction and sentence. We note, however, the State may reindict Bigham under another subsection of § 13A-6-20, Ala.Code 1975, without violating the principles of double jeopardy. See generally Ex parte Wood, 564 So.2d 860 (Ala.1990); Allen v. State, 472 So.2d 1122 (Ala.Crim.App.1985).

REVERSED AND REMANDED.

WISE, P.J., and WELCH and WINDOM, JJ., concur.


author: PER CURIAM.

text:
    In re AMENDMENTS TO RULES OF THE SUPREME COURT RELATING TO ADMISSIONS TO THE BAR.
    No. SC09-825.
    Supreme Court of Florida.
    Dec. 10, 2009.
    Michele A. Gavagni, Executive Director, and Thomas A. Pobjecky, General Counsel, Florida Board of Bar Examiners, Tallahassee, Florida, for Petitioner.
   PER CURIAM.

This matter is before the Court for consideration of proposed amendments to the Rules of the Supreme Court Relating to Admissions to the Bar (rules). We have jurisdiction, see art. V, § 15, Fla. Const., and adopt the proposed amendments.

On March 19, 2009, this Court requested the Florida Board of Bar Examiners (Board) to prepare and file a proposed rule that would limit the confidential conditional admission feature to persons who are permanent Florida residents, who will be engaged in the practice of law primarily in Florida, and who can and will be monitored in Florida. Pursuant to the Court’s request, the Board petitions the Court to amend rules 3-22.5, 3-23.6, and 5-15, as opposed to proposing a new rule. The proposed amendments were published for comment in The Florida Bar News on June 1, 2009. No comments were received.

Rule 5-15, Bar Jurisdiction after Admission, as amended, will require an applicant who is conditionally admitted to membership in The Florida Bar to live and work in Florida throughout the probationary period of admission as well as to comply with all other terms of the conditional admission. Rule 3-22.5, Board Action Following an Investigative Hearing, and rule 3-23.6, Board Action Following Formal Hearing, as amended, will refer the reader to rule 5-15 in the event the Board offers to enter into a consent agreement following an investigative hearing or recommends conditional admission following a formal hearing.

Accordingly, we amend the Rules of the Supreme Court Relating to Admissions to the Bar as reflected in the appendix to this opinion. The new language is indicated by underscoring; deletions are indicated by struck-through type. These amendments shall take effect immediately upon the release of this opinion and will apply prospectively only.

It is so ordered.

QUINCE, C.J., and PARIENTE, LEWIS, CANADY, POLSTON, LABARGA, and PERRY, JJ., concur.

APPENDIX

3-22.5 Board Action Following an Investigative Hearing. After an investigative hearing, the board may make any of the following determinations:

(a) [NO CHANGE]

(b) The board will offer to the applicant or registrant a Consent Agreement pertaining to drug, alcohol, or psychological problems and subject to the provisions of rule 5-15. In a Consent Agreement, the board is authorized to recommend to the court the admission of the applicant who has agreed to abide by specified terms and conditions on admission to The Florida Bar.

(c)-(d) [NO CHANGE]

3-23.6 Board Action Following Formal Hearing. Following the conclusion of a formal hearing, the board will promptly notify the applicant or registrant of its decision. The board may make any of the following recommendations:

(a) [NO CHANGE]

(b) The applicant be conditionally admitted to The Florida Bar in exceptional cases involving drug, alcohol, or psychological problems on the terms and conditions specified by the board and subject to the provisions of rule 5-15.

(c)-(d) [NO CHANGE]

5-15 Bar Jurisdiction after Admission. If an applicant is granted admission by the court under a Consent Agreement, then the terms and conditions of his or her admission will be administered by The Florida Bar. The board must provide The Florida Bar access to all information gathered by the board on a conditionally-admitted applicant, except information received by the board under a specific agreement of confidentiality or otherwise restricted by law. Conditional admission is limited to persons who will live in Florida, who will be engaged in the practice of law primarily in Florida, and who will be monitored in Florida during the entire period of conditional admission. If the applicant fails to abide by the terms and conditions of admission,_including_fiie_Jrec[uirement_ofJiv: ing in Florida, The Florida Bar is authorized to institute proceedings consistent with the Rules Regulating The Florida Bar as to revocation of the license issued to the applicant under the Consent Agreement. The board must be notified of any disciplinary proceedings and have access to all information relating to the administration of a conditional admission, except information received by The Florida Bar under a specific agreement of confidentiality or otherwise restricted by law.

      . A conditional admission is a special admission status sometimes offered to applicants who have a history of drug or alcohol abuse or psychological problems that requires them to comply with specified terms and conditions upon admission. Fla. Bar Admiss. R. 3-22.5, 3-23.6, 5-15. An order granting a conditional admission is usually confidential.