author: PITTMAN, Judge.

text:
    M.P.G. v. JEFFERSON COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2150219.
    Court of Civil Appeals of Alabama.
    July 15, 2016.

      James M. Perry, Birmingham, for appellant.
    Sharon E. Ficquette, chief legal counsel, and Karen P. Phillips, asst. atty. gen., Department of Human Resources, for ap-pellee.
   PITTMAN, Judge.

M.P.G. (“the mother”) appeals from a judgment of the Jefferson Juvenile Court (“the juvenile court”) “closing,” i.e., effectively dismissing, a dependency action concerning T.G.G. (“the child”), the sole child born of the marriage of the mother and W.G. (“the father”). We reverse and remand.

Procedural History

On February 9, 2015, the Jefferson County Department of Human Resources (“DHR”) filed a dependency petition concerning the child in the juvenile court. The petition alleged that DHR had taken the child, who was then five years old, into protective custody after she had been found wandering, without supervision, in the apartment complex where she lived with the mother and the mother had been found intoxicated from alcohol in the apartment. The petition was accompanied by a custody affidavit in which a DHR caseworker testified that the child had lived in an apartment located on Oaks Drive in Birmingham (“the Oaks Drive apartment”) from sometime in 2013 until July 2014, that the child had lived in the mother’s apartment on Hampton Park Drive in Hoover (“the Hampton Park Drive apartment”) from July 2014 until she had been taken into protective custody by DHR, and that the father lived in the Oaks Drive apartment.

Also on February 9, 2015, the juvenile court’s senior trial referee (“the referee”) held a shelter-care hearing concerning the child. A DHR caseworker, DHR’s counsel, the father, the father’s appointed counsel, and the guardian ad litem appointed to protect the interests of the child appeared at the shelter-care hearing; however, the mother failed to appear. Following that hearing, the referee rendered an order (which was confirmed on February 10, 2015, by a judge of the juvenile court) that (1) found that allowing the child to be in the custody of the mother would be contrary to the child’s best interest; (2) placed the child in the custody of the father, subject to DHR’s supervision; and awarded the mother supervised visitation. See § 12-16-102(25), Ala.Qode 1975 (defining “shelter care” as “[t]he temporary care of children in group homes, foster care, relative placement, or other nonpenal facilities” (emphasis added)). The order also set the action for a pretrial hearing on April 10, 2015, before the referee.

Thereafter, the mother filed a motion asserting that the juvenile court lacked subject-matter jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (“the UCCJEA”), § 30-3B-101 et seq., Ala.Code 1975, because, the mother said, a Florida court had entered a temporary custody order regarding the child in 2012 in a previous divorce action involving the father and the mother, which, apparently, did not result in the entry of a divorce judgment. She later filed a supplement to that motion in which she asserted that she had not been afforded adequate notice of the shelter-care hearing. However, subsequent to filing her motion challenging the juvenile court’s jurisdiction under the UCCJEA, the mother filed an answer to the dependency petition in which she stated that she, the father, and the child had lived together in the Oaks Drive apartment from July 2013 until July 2014 and that, thereafter, only she and the child had lived together in the Hampton Park Drive apartment since July 2014.

The referee held the previously scheduled pretrial hearing on April 10, 2015. Representatives of DHR, DHR’s counsel, the mother, the mother’s counsel, the father, the father’s counsel, and the guardian ad litem appeared at the hearing. Following the pretrial hearing, the referee rendered an order (which was confirmed by a judge of the juvenile court on April 13, 2015) that maintained the award of pen-dente lite custody to the father and denied the mother’s then pending motions.

Thereafter, the mother petitioned this court for a writ of mandamus seeking review of the order entered following the shelter-care hearing and the order entered after the pretrial hearing. This court summarily denied that petition. Ex parte M.P.G. (No. 2140558, June 11, 2015), 212 So.3d 234 (Ala.Civ.App.2015) (table).

Meanwhile, the mother filed a motion in the juvenile court requesting a rehearing before a judge of the juvenile court concerning the issues heard at the pretrial hearing. See § 12-15-106(f), Ala.Code 1975 (providing that a juvenile-court judge shall rehear a matter heard by a referee if a party files a written request for rehearing within 14 days). The juvenile court assigned a special juvenile-court judge (“the special judge”) to hold the rehearing, and it was scheduled for June 12, 2015. At the June 12 rehearing, the mother stipulated that she needed services to rehabilitate herself. Following that hearing, the special judge entered an order on June 23, in which he found the child to be dependent based on the mother’s stipulation that she needed services to rehabilitate herself, maintained the father’s pendente lite custody of the child, ordered the mother to undergo random testing for alcohol, ordered the mother to continue undergoing intensive outpatient treatment for aleoholism, ordered the mother to continue attending meetings of Alcoholics Anonymous, awarded the mother unsupervised visitation with the child, and set a permanency hearing for September 11, 2015. On September 4, 2015, the mother filed a motion asking the juvenile court to hold an evidentiary hearing. The juvenile court set an evidentiary hearing for September 11, 2015. The mother subsequently filed a motion seeking a continuance of the September 11 evidentiary hearing; the juvenile court granted that motion and set the action for a trial of all issues on November 20,2015.

On October 9, 2015, the mother filed a motion asking the juvenile court to transfer the action to the Jefferson Circuit Court (“the circuit court”) for consolidation with a divorce action the mother had filed in that court and stating that, if the juvenile court transferred the action to the circuit court, the mother would withdraw her motion for an evidentiary hearing. The special judge held a hearing regarding that motion on October 23, 2015. Thereafter, the special judge entered an order stating that the action was still set for trial on November 20.

On November 13, 2015, DHR filed a motion asking the juvenile court to close the case regarding the child on the ground that, because the child had been placed in the custody of the father, the child was no longer dependent. When the action was called for trial on November 20, 2015, the juvenile court heard oral argument regarding DHR’s motion to close the case before the parties introduced any evidence, DHR’s counsel argued that, because the child had been placed with the father, the child was no longer dependent and, therefore, the juvenile court should close the case without a dispositional trial. The mother objected to DHR’s motion and argued that she was entitled to a dispositional trial at which she could introduce evidence indicating that custody of the child should be returned to her. The special judge orally granted DHR’s motion before any evidence had been introduced, and the proceeding was adjourned without any evidence being introduced. Thereafter, the special judge entered a written order granting DHR’s motion.

The mother filed a Rule 59(e), Ala. R. Civ. P., motion in which she again asserted that she was entitled to a dispositional trial so that she could introduce evidence indicating that custody of the child should be returned to her. That motion was denied by operation of law; the mother then timely appealed to this court. The hearings before the juvenile court were recorded, the recordings were transcribed, and the special judge has certified that the record is adequate for appellate review; therefore, this court has jurisdiction pursuant to Rule 28(A)(c)(i), Ala. R. Juv. P.

Standard of Review

Because the sole issue raised by the mother is an issue of law, our review is de novo. See, e.g., M.G.D. v. L.B., 164 So.3d 606, 610 (Ala.Civ.App.2014).

Analysis

Citing T.W. v. Madison County Department of Human Resources, 946 So.2d 469 (Ala.Civ.App.2006), the mother argues that the juvenile court erred in granting DHR’s motion to close the case without holding a dispositional trial because, she says, she was entitled to introduce evidence indicating that custody of the child should be returned to her. We agree.

In T.W., the Madison County Department of Human Resources had filed a dependency petition concerning F.H., alleging that F.H. was dependent because she and one of her half siblings, whose custody was not at issue in T.W., had been found to have unexplained injuries and previous injuries that had healed. 946 So.2d at 470. The petition further alleged that F.H. had told a social worker that B.F., the boyfriend of T.W., F.H.’s mother, had caused the injuries; that T.W. had been unable or unwilling to offer a plausible explanation for F.H.’s injuries; and that T.W. was unable or unwilling to protect F.H. from further physical abuse. Id. The Madison Juvenile Court held a shelter-care hearing and placed F.H. in the custody of K.H., F.H.’s father. 946 So.2d at 470-72. Thereafter, the Madison Juvenile Court entered an order setting a hearing regarding “‘temporary legal custody.’” 946 So.2d at 472. The mother then filed a motion for an evidentiary hearing regarding custody of F.H. Id. In response to that motion, the Madison Juvenile Court set the action for an evidentiary hearing, id.; however, a week before the scheduled evidentiary hearing, the Madison County Department of Human Resources filed a motion to dismiss the dependency action involving F.H., 946 So.2d at 473. In support of its motion, the Madison County Department of Human Resources alleged that F.H. was doing well in K.H.’s care and that it no longer considered F.H. to be dependent. Id. The following day the Madison Juvenile Court entered a judgment granting the Madison County Department of Human Resources’ motion to dismiss. Id. T.W. filed a postjudgment motion asking the Madison Juvenile Court to vacate its judgment granting the motion to dismiss and to set the action for an evidentiary hearing'so that she would have an opportunity to introduce evidence indicating that she was the fit and proper person to have custody of F.H. Id. That motion was denied; T.W. then appealed to this court. Id.

This court concluded that the Madison Juvenile Court had erred in dismissing the dependency action without affording T.W. an opportunity to introduce evidence indicating that F.H. should be returned to T.W.’s custody, stating:

“[T]he [Madison Juvenile Court’s] dismissal of this action effectuated a transfer of permanent custody of the child to [K.H.] without holding an evidentiary hearing to consider the best interests of the child. See D.K.G. v. J.H., 627 So.2d 937 (Ala.Civ.App.1993) (the appropriate standard to be applied in the dispositional phase of a dependency proceeding is the ‘best-interests-of-the-child standard’). In addition, this court recently noted that the final dispositional order in a dependency action ‘“coincide[s] with the end of the child’s dependency. such an order, “‘results in a custody award wherein the parent or custodian is able and willing to have the care, custody, and control of the child, free from any intervention or supervision by the state under the dependency statutes.” ’ In re B.B., 944 So.2d 960, 962 (Ala.Civ.App.2006) (quoting S.P. v. E.T., 957 So.2d 1127, 1131 (Ala.Civ.App.2005)).
“Based on the facts of this case, the [Madison Juvenile Court] should have held a full evidentiary dispositional hearing to determine whether the child should have been returned to [T.W.’s] physical custody. Accordingly, the [Madison Juvenile Court’s] judgment dismissing the dependency action is reversed, and the cause is remanded for the [Madison Juvenile Court] to hold an evidentiary hearing so as to afford [T.W.] an opportunity to present evidence regarding whether [F.H.] should be returned to her.”

946 So.2d at 473-74.

Under the holding in T.W., the juvenile court in the present case erred in “closing,” i.e., dismissing, the case without holding an evidentiary hearing that would afford the mother an opportunity to introduce evidence indicating that the child should be returned to her custody. DHR argues that the juvenile court properly elosed the case because, DHR says, the mother had stipulated at the June 12, 2015, hearing that the child was dependent as to her. However, we fail to see how her stipulation that the child was dependent as to her on June 12, 2015, would preclude the mother from contending in November 2015 that she had rehabilitated herself and that the child should be returned to her custody.

DHR also argues that any error committed by the juvenile court in closing the case without affording the mother an opportunity to introduce evidence indicating that the child should be returned to her is moot because, DHR says, the mother had invoked the custody jurisdiction of the circuit court by filing a divorce action in that court. However, § 12-15-114(a), Ala.Code 1975, grants a juvenile court “exclusive original jurisdiction of juvenile proceedings in which a child is alleged ... to be dependent....” (Emphasis added.) Furthermore, § 12-15-117(a), Ala.Code 1975, provides that, “[o]nce a child has been adjudicated dependent ..., jurisdiction of the juvenile court shall terminate when the child becomes 21 years of age unless, prior thereto, the judge of the juvenile court terminates its jurisdiction by explicitly stating in a written order that it is terminating jurisdiction over the case involving the child.” (Emphasis added.) Having found that the child was dependent, the juvenile court’s exclusive original jurisdiction over the issue of the child’s custody did not terminate when the juvenile court entered its judgment granting DHR’s motion to close the case because the child had not reached the age of 21 and because that judgment did not explicitly state that the juvenile court was terminating its jurisdiction—it merely stated that “DHR’s Motion to Close Case is granted.” Therefore, the circuit court could not exercise jurisdiction over the issue of the child’s custody despite the juvenile court’s closing or dismissing its case regarding the child. See, e.g., V.L. v. T.T.L., 141 So.3d 88, 92 (Ala.Civ.App.2013) (holding that the Lawrence Circuit Court lacked subject-matter jurisdiction over a parent’s petition seeking modification of the Lawrence Juvenile Court’s award of custody pursuant to its dependency jurisdiction because the children at issue had not reached the age of 21 and the Lawrence Juvenile Court had not terminated its jurisdiction). Accordingly, based on the holding in T.W., we reverse the judgment of the juvenile court and remand the cause for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . Thus, Alabama was the child’s home state when DHR filed its dependency petition. See § 30-3B-102(7), Ala.Code 1975 (defining "home state,” for purposes of the UCCJEA, in pertinent part, as “[t]he state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding”). Consequently, when DHR filed the dependency petition, a court of this state would have had jurisdiction to make an initial custody determination pursuant to § 30-3B-201(a)(1), Ala.Code 1975 (providing that a court of this state has jurisdiction to make an initial custody determination if this state was the home state of the child on the date the proceeding was commenced). Furthermore, because a court of this state would have had jurisdiction to make an initial custody determination under § 30-3B-201(1) and because neither the child nor her parents lived in Florida when DHR filed the dependency petition, the juvenile court had jurisdiction to modify the Florida court’s temporary custody determination. See § 30-3B-203(2), Ala.Code 1975 (providing, in pertinent part, that a court of this state may modify a custody determination made by a court of another state if a court of this state would have jurisdiction to malee an initial custody determination pursuant to § 30-3B-201(a)(1) or (2) and a court of this state determines that neither the child nor his or her parents presently reside in the other state).

      . The fact that the father was a fit parent who was willing and able to care for the child did not, as a matter of law, deprive the juvenile court of dependency jurisdiction. See, e.g., T.K. v. M.G., 82 So.3d 1, 4 (Ala.Civ.App.2011) ("[W]e cannot say that, as a matter of law, a child cannot be deemed dependent when a fit parent is willing and able to care for th[at] child.”).

      . Likewise, the ground upon which DHR based its written motion to close the case, i.e., that the child was no longer dependent because she had been placed in the custody of the father, did not, as a matter of law, justify the juvenile court’s closing or dismissing the case. See supra note 2,


source: Caselaw Access Project

author: THOMPSON, Presiding Judge.

license: Public Domain

text:
    Amanda TUCKER v. Dezzaccues NIXON.
    2150224.
    Court of Civil Appeals of Alabama.
    July 15, 2016.

      Terinna S. Moon of Moon & Melvin, LLC, Prattville, for appellant.
   THOMPSON, Presiding Judge.

On July 23, 2013, Dezzaccues Nixon (“the father”) filed a verified complaint in the Autauga Circuit Court (“the trial court”) in which he sought an award of custody of the two minor children born of his relationship with Amanda Tucker (“the mother”). The mother and the father were never married. The father also moved for an award of temporary custody of the children. It does not appear that the trial court specifically awarded either party pendente lite custody, but it entered an order specifying that neither party was allowed to remove the children from the State of Alabama pending further order of the trial court.

The mother filed an answer and a counterclaim’ in which she sought an award of custody of the children. In her counterclaim, the mother alleged, among other things, that she had not participated in any capacity in any litigation concerning custody of the children and that she had no information regarding any other pending custody action pertaining to the children. In his verified answer to the mother’s counterclaim, the father admitted the allegations contained in the paragraph of the counterclaim pertaining to the lack of knowledge of any other custody actions pertaining to the children. On September 12, 2013, in response to a motion filed by the father in which he alleged that the mother was denying him visitation, the trial court entered an order stating that “the parties shall maintain the custody and visitation arrangement that existed prior to the filing” of the father’s verified complaint initiating the action.

On March 27, 2015, the trial court entered an order scheduling a final hearing for June 18, 2015, and it later entered an order on June 15, 2015, granting a joint motion to reschedule and ordering that the final hearing be set for August 6, 2015. On June 23, 2015, the mother’s attorney moved to withdraw from the case, stating that recent communications with the mother indicated that the mother no longer wanted the attorney’s services. The trial court entered an order on June 30, 2015, granting the motion to withdraw and' ordering the mother to immediately seek representation because, the trial court explained, it would not delay the disposition of the action based on her failure to secure an attorney.

Only the father appeared for the scheduled final hearing on August 6, 2015, hearing. On that date, the trial court entered an order stating that it had received testimony from the father and ordering that a proposed final judgment be filed with the trial court. On August 14, 2015, the trial court entered a default judgment in which it awarded the father custody of the minor children and ordered the mother to pay monthly child support.

On August 22, 2015, the mother filed a motion seeking to set aside the August 14, 2015, judgment pursuant to Rule 55(c), Ala. R. Civ. P. In her August 22, 2015, motion, in addition to arguing that the trial court should set aside the default judgment based on the merits of her Rule 55(c) motion, the mother also argued that the trial court’s August 14, 2015, judgment was void for want of subject-matter jurisdiction.

“Insofar as [the mother’s August 22, 2015,] motion argued that the default judgment was void, we will construe it as a motion under Rule 60(b)(4), Ala. R. Civ. P.; insofar as it sought to have the default judgment set aside on other grounds, we will construe it as a motion under Rule 55(c).”

Hughes v. Cox, 601 So.2d 465, 467 n. 3 (Ala.1992). As is explained later in this opinion, this court is unable to review the mother’s argument, asserted in her brief on appeal, that the August 14, 2015, judgment is void.

The trial court entered an order stating that the father was allowed to respond to the mother’s August 22, 2015, motion, but the father did not file a response. It does not appear that the trial court held a hearing on the mother’s August 22, 2015, motion. That part of the mother’s August 22, 2015, motion made pursuant to Rule 55(c) was denied by operation of law pursuant to Rule 59.1, Ala. R. Civ. P., on November 20, 2015. That same day, the mother filed a timely notice of appeal to this court. See Williamson v. Fourth Ave. Supermarket, Inc., 12 So.3d 1200, 1204 (Ala.2009) (“[T]he time for filing a notice of appeal begins to run on the 90th day following the filing of a postjudgment motion, absent a ruling on the motion by the trial court or a valid extension of the 90-day period.”).

The mother argues on appeal that the trial court erred in denying, by operation of law, her motion to set aside the August 14, 2015, default judgment that awarded the father custody of the children. With regard to a Rule 55(c) motion to set aside a default judgment, this court has stated:

“ ‘A trial court has broad discretion in deciding whether to grant or deny a motion to set aside a default judgment. Kirtland v. Fort Morgan Auth. Sewer Serv., Inc., 524 So.2d 600 (Ala.1988). In reviewing an appeal from a trial court’s order refusing to set aside a default judgment, this Court must determine whether in refusing to set aside the default judgment the trial court exceeded its discretion. 524 So.2d at 604. That discretion, although broad, requires the trial court to balance two competing policy interests associated with default judgments: the need to promote judicial economy and a litigant’s right to defend an action on the merits. 524 So.2d at 604. These interests must be balanced under the two-step process established in Kirtland.
“ ‘We begin the balancing process with the presumption that cases should be decided on the merits whenever it is practicable to do so. 524 So.2d at 604. The trial court must then apply a three-factor analysis first established in Ex parte Illinois Central Gulf R.R., 514 So.2d 1283 (Ala. 1987), in deciding whether to deny a motion to set aside a default judgment. Kirtland, 524 So.2d at 605. The broad discretionary authority given to the trial court in making that decision should not be exercised without considering the following factors: “1) whether the defendant has a meritorious defense; 2) whether the plaintiff will be unfairly prejudiced if the default judgment is set aside; and 3) whether the default judgment was a result of the defendant’s own culpable conduct.” 524 So.2d at 605.’
“Zeller v. Bailey, 950 So.2d 1149, 1152-53 (Ala.2006).
“As we stated in Richardson v. Integrity Bible Church, Inc., 897 So.2d 345 (Ala.Civ.App.2004):
“ ‘Because of the importance of the interest of preserving a party’s right to a trial on the merits, this court has held that where a trial court does not demonstrate that it has considered the mandatory Kirtland factors in denying a motion to set aside a default judgment, such as where a Rule 55(c)[, Ala. R. Civ. P.,] motion is denied by operation of law, the denial of the motion to set aside the default judgment will be reversed and the cause remanded for the trial court to address the Kirtland factors.’
897 So.2d at 349. However, in order to trigger the mandatory requirement that the trial court consider the Kirtland factors, the party filing a motion to set aside a default judgment must allege and provide arguments and evidence regarding all three of the Kirtland factors. See Carroll v. Williams, 6 So.3d 463, 468 (Ala.2008) (‘Because Carroll has failed to satisfy his initial burden under the Kirtland analysis [of providing allegations and evidence relating to all three Kirt-land factors], we will not hold the trial court in error for allowing Carroll’s motion to set aside the default judgment to be denied by operation of law without having applied the Kirtland analysis.’). See also Maiden v. Federal Nat’l Mortg. Ass’n, 69 So.3d 860, 867 n. 3 (Ala.Civ.App.2011) (noting that we will not reverse the denial by operation of law of a motion to set aside a default judgment when the movant fails to argue the existence of the Kirtland factors in his or her motion).”

Brantley v. Glover, 84 So.3d 77, 80-81 (Ala.Civ.App.2011) (emphasis added; footnote omitted)

In this case, the trial court allowed the mother’s Rule 55(c) motion to be denied by operation of law, and, therefore, there is no indication that the trial court properly considered the Kirtland factors. Gilbert v. Gilbert, 207 So.3d 741, 742 (Ala.Civ.App. 2016); D.B. v. D.G., 141 So.3d 1066, 1072 (Ala.Civ.App.2013). However, as is noted, above, in Brantley v. Glover, supra, before the trial court is required to consider the Kirtland factors, the party seeking to set aside the default judgment pursuant to Rule 55(c) must assert arguments and present evidence regarding each of those factors. 84 So.2d at 81.

In her August 22, 2015, motion, the mother set forth arguments pertaining to each of the Kirtland factors. However, the mother submitted no evidence in support of her Rule 55(c) motion, and that motion was neither sworn nor verified. In the August 22, 2015, motion, the mother’s attorney made some factual allegations in support of the arguments asserted in that motion. However, “[t]he unsworn statements, factual assertions, and arguments of counsel are not evidence.” Ex parte Russell, 911 So.2d 719, 725 (Ala.Civ.App.2005); see also Town of Westover v. Bynum, 68 So.3d 840, 843 (Ala.Civ.App.2011) (“The statement in Bynum and the Country Store’s trial brief is an unsworn statement made by counsel, which is not considered evidence.”); and LVNV Funding, LLC v. Boyles, 70 So.3d 1221, 1232 n. 2 (Ala.Civ.App.2009) (“[A]n unsworn statement made by one of the parties’ attorneys is not evidence.”).

In Gilbert v. Gilbert, supra, this court reversed a denial by operation of law of a Rule 55(c) motion, concluding that because the motion had been denied by operation of law, rather than ruled on by the trial court, it would be “premature” to rule on the merits of the denial of the motion. 207 So.3d at 742. Therefore, this court remanded the cause for the trial court to consider the merits of the Rule 55(c) motion filed in that case. In that case, however, unlike in this case, the party moving to set aside the default judgment had submitted evidence in support of the Rule 55(c) motion. Gilbert v. Gilbert, 207 So.3d at 742-43.

Similarly, in D.B. v. D.G., supra, this court reversed the denial by operation of law of a mother’s Rule 55(c) motion. In that case, this court held that there was no indication that the trial court had properly considered the Kirtland factors. This court noted that, in that case, “the mother’s verified motion triggered the court’s obligation to conduct a Kirtland analysis by alleging, under oath and with supporting facts and arguments,” facts pertaining to the Kirtland factors. 141 So.3d at 1072.

The mother in this case failed to present any evidence in support of any of her allegations pertaining to the Kirtland factors, and her August 22, 2015, motion was not verified. Therefore, unlike the movants in Gilbert v. Gilbert, supra, and D.B. v. D.G., supra, the mother in this case failed to meet her initial burden under Kirtland of presenting arguments and evidence pertaining to all three Kirtland factors; accordingly, the mother did not trigger the trial court’s obligation to conduct a Kirtland analysis. Brantley v. Glover, 84 So.3d at 81. We cannot conclude that the mother has demonstrated that the trial court erred in failing to grant that part of her August 22, 2015, motion in which she sought to set aside the default judgment pursuant to Rule 55(c).

As mentioned earlier in this opinion, in her August 22, 2015, motion, the mother also sought to have the August 14, 2015, default judgment declared void based on her argument that the trial court lacked subject-matter jurisdiction; such a request for relief is available under Rule 60(b)(4), Ala. R. Civ. P. However, a motion made pursuant to Rule 60(b) is not subject to Rule 59.1, .and, therefore, it is not subject to being denied by operation of law pursuant to that rule. Ex parte R.S.C., 853 So.2d 228, 233 (Ala.Civ.App.2002) (“It is well settled that the 90-day period for pending postjudgment motions applies only to motions filed under Rules 50, 52, 55, and 59, and that it does not apply to Rule 60(b) motions to set aside a judgment.”). Accordingly, that part of the mother’s August 22, 2015, motion that sought relief pursuant to Rule 60(b)(4) remains pending before the trial court, and the mother’s appeal pertaining to that request for relief is premature. Ex parte R.S.C., 853 So.2d at 234. We must dismiss that part of the mother’s appeal pertaining to her arguments that the trial court lacked subject-matter jurisdiction over the parties’ claims. State v. Brantley Land, L.L.C., 976 So.2d 996, 1000-01 (Ala.2007).

AFFIRMED IN PART; APPEAL DISMISSED IN PART.

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

      . We note that, in her August 22, 2015, motion, the mother also cited Rule 59, Ala. R. Civ. P., as an alternate basis for relief, asking the trial court to "vacate” the August 14, 2015, judgment. To the extent that the mother purported to seek relief under Rule 59, we interpret the motion as one filed under Rule 55(c), because the substance of that request for relief is the type available under Rule 55(c). R.J.G. v. S.S.W., 42 So.3d 747, 753 (Ala.Civ.App.2009).

      . Rule 59.1 provides, in pertinent part:
      ,, , No P°stjudgment motion filed pursuant t0 RuleH [] ... 55 ... shall remain pending in *e trial court for more than ninety (90) days.... A failure by the trial court to render an order disposing of any pending post-judgment motion within the time permitted hereunder, or any extension thereof, shall constitute a denial of such motion as of the date of the expiration of the period.”

      . In that part of her August 22, 2015, motion seeking to have the default judgment determined to be void, the mother alleged that, “on or about September 20, 2012, the Autauga County Child Support Court entered an order wherein [the father] was ordered to pay monthly child support to [the mother].” The mother argued that, because a child-support order contains an implicit paternity and child-custody determination, the trial court lacked subject-matter jurisdiction to enter any order modifying that purported child-support order. See A.S. v. C.M., 71 So.3d 662, 664 (Ala.Civ.App.2011) ("[A]n order requiring a man to pay child support is an implicit judicial determination of paternity.”); and Ex parte Washington, 176 So.3d 852, 853 (Ala. Civ.App.2015) ("[A]n award of support to one parent constitutes an implicit award of custody to that parent.”). The mother did not support those allegations with any evidence pertaining to the purported September 20, 2012, judgment, and she did not attempt to identify the purported earlier action by case number.


author: MOORE, Judge. THOMPSON, Presiding Judge,

text:
    Kara E. CUMMINGS v. Glenn Randall CUMMINGS.
    2150063.
    Court of Civil Appeals of Alabama.
    July 22, 2016.
    Andrew M. Jones, Mobile, for appellant.
    Thomas H. Nolan, Jr., Mobile, for appel-lee.
   MOORE, Judge.

Kara E. Cummings (“the mother”) appeals from a judgment of the Mobile Circuit Court (“the trial court”) to the extent that it declined to retroactively modify the child-support obligation of Glenn Randall Cummings (“the father”) so as to be effective from the date she filed her complaint seeking to modify child support. We affirm the trial court’s judgment.

Procedural History

The parties were divorced by a judgment of the trial court entered on April 20, 2001; that judgment, among other things, awarded the mother sole custody of the parties’ child and ordered the father to pay $598 per month in child support. On July 12, 2013, the mother filed a complaint to, among other things, modify the child-support obligation of the father (“the child-support action”). On August 16, 2013, the father filed an answer and counterclaimed for a change in the custody of the child (“the custody action”). The clerk assigned separate civil-action numbers to the child-support action and the custody action. The record contains no order consolidating the cases.

The trial court originally scheduled the trial for January 27, 2014; however, the trial court continued the case on the motion of the father on four different occasions and on the motion of the mother on another occasion. In the meantime, the trial court did not grant the mother’s requests for an “instanter” order increasing the father’s child-support obligation.

After a trial on September 2, 2015, the trial court entered identical judgments on September 3, 2015, in the child-support action and the custody action, increasing the father’s monthly child-support obligation to $780, effective September 1, 2015, denying the father’s counterclaim for a modification of custody, and denying all other requests for relief. On October 15, 2015, the mother filed her notice of appeal from the judgment entered in the child-support action.

Discussion

On appeal, the mother argues that the trial court erred in not making the child-support modification retroactive to the date she filed her complaint. The father argues that the mother did not preserve this issue for appeal. When a court tries a case without a jury and enters a judgment without findings of fact, a party who claims that the judgment is not supported by sufficient evidence must file a postjudgment motion in order to preserve that issue for appeal. New Props., LLC v. Stewart, 905 So.3d 797, 801-02 (Ala.2004). During the trial in this case, the mother asserted that any modification of the father’s child-support obligation should be applied retroactively. In its judgment, the trial court specifically determined that the child-support modification would operate from September 1, 2015, forward. That determination constitutes a sufficient finding that the increase in the father’s child-support obligation would not be payable retroactively from the date the mother filed her complaint. Hollen v. Conley, 840 So.2d 921, 924 n. 4 (Ala.Civ.App.2002) (“[T]he trial court’s award of $23,521.32, including interest, is a factual finding that the calculation of the [child-support] ar-rearage and interest is correct. Accordingly, the mother was not required to raise the issue in a postjudgment motion to preserve the issue for our review.”).

“In cases seeking modification of child support, it is within the discretion of the trial court to make any modification retroactive to the date of the filing of the petition for the modification. State ex rel. Nathan v. Nathan, 680 So.2d 339 (Ala.Civ.App.1996); Rogers v. Sims, 671 So.2d 714 (Ala.Civ.App.1995); State ex rel. Dunnavant v. Dunnavant, 668 So.2d 851 (Ala.Civ.App.1995).”

Brown v. Brown, 719 So.2d 228, 232 (Ala. Civ.App.1998). Our cases have generally recognized a “ ‘sound policy favoring retro-activity in most cases, because the party entitled to support should not be penalized for having to resort to time-consuming court proceedings.’” Bayliss v. Bayliss, 575 So.2d 1117, 1121-22 (Ala.Civ.App.1990) (quoting Sutliff v. Sutliff, 339 Pa.Super. 523, 556, 489 A.2d 764, 781 (1985)); see also Brown v. Brown, 719 So.2d at 232; Thompson v. Thompson, 689 So.2d 885, 889 (Ala.Civ.App.1997).

In the present case, however, the mother failed to present sufficient evidence from which the trial court could determine the amount of retroactive child support due. She introduced evidence indicating that the father’s monthly income at the time of the trial was $8,583 and that, in June 2014, the father’s income was $8,333.33; however, she failed to present evidence of the father’s income at the time of the filing of the complaint. Furthermore, the mother testified that, at the time she filed the complaint, she was working 20 to 25 hours a week earning $27.52 per hour, but, at the time of the trial, she was employed full tune earning $7,100 per month. She, however, failed to present evidence indicating the date on which she obtained full-time employment.

The mother had the burden of proof at trial, see Romano v. Romano, 703 So.2d 374 (Ala.Civ.App.1997), and has the burden of proving error on the record in this appeal, see Dais v. State, 420 So.2d 278 (Ala.Civ.App.1982). Although the mother requested that any increase in the father’s child-support obligation be awarded retroactively, she failed to present sufficient evidence regarding the parties’ incomes to allow the trial court to calculate the proper amount of retroactive child support due from the date she filed her complaint, and she did not offer into evidence any calculations herself. Therefore, we cannot conclude that the trial court exceeded its discretion in declining to award the increase in the father’s child-support obligation retroactive to the date of the filing of the mother’s complaint. See Brown, 719 So.2d at 232. Therefore, the judgment of the trial court in the child-support action is affirmed.

AFFIRMED.

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

THOMPSON, P.J., concurs in the result in part and dissents in part, with writing.

THOMPSON, Presiding Judge,

concurring in the result in part and dissenting in part.

I dissent from that part of the main opinion that affirms the trial court’s increase in child support retroactive to September 1, 2015. I concur in the result as to the remainder of the opinion.


text:
    Walter Maron COLGAN v. Carole Ann COLGAN.
    2150192.
    Court of Civil Appeals of Alabama.
    July 22, 2016.

      Randall W. Nichols and Shay Click Reynolds of Massey, Stotser & Nichols, PC, Birmingham, for appellant.
    Bethany Ellison Malone, Tuscumbia, for appellee.
   PITTMAN, Judge.

Walter Marón Colgan (“the husband”) appeals from a judgment of divorce entered by the Lauderdale Circuit Court that, in addition to containing other financial and property rulings, directed him to pay periodic alimony of $425 per month to Carole Ann Colgan (“the wife”) and, as a component of its division of marital property, awarded the wife one-half of the husband’s retirement benefits. We reverse and remand.

In February 2013, the wife filed a complaint seeking a judgment of legal separation, averring that the parties had married in 1984. After unsuccessfully seeking dismissal of the action on personal-jurisdiction grounds, the husband filed an answer admitting that the parties had been married since 1984, but he asserted a counterclaim seeking a judgment of divorce based upon incompatibility of temperament.

After the case was set for an August 2014 trial, counsel for the husband filed a motion in limine seeking to prohibit “the admission of evidence regarding the retirement accounts and retirement income” of the husband. That motion asserted that the husband had retired from Philadelphia Electric Company (“PECo”) in 1990, just over six years after the parties’ marriage in 1984, and that the husband’s pension from PECo was, therefore, not part of the marital estate under the provisions of Ala. Code 1975, § 30-2-51(b), which states that a trial court dividing property incident to a divorce “may include in the estate of either spouse the present value of any ... current retirement benefits” under certain conditions, including the condition that “[t]he parties have been married for a period of 10 years during which the retirement was being accumulated.” The trial court set the motion for a hearing on the same date as the date of trial, but then continued the trial, and, subsequently, the attorney that had filed the motion in limine withdrew from representing the husband. After another attorney had appeared on behalf of the husband, the trial court held an ore tenus proceeding on the merits of the parties’ claims; there is no indication that the trial court granted or denied the motion in limine, and the husband testified at trial that he had worked for six years after the parties had married before retiring from PECo. The trial court ultimately entered a judgment divorcing the parties, confirming the parties’ previous personal-property division, dividing real property jointly owned by the parties in Rogersville, directing each party to pay debts incurred in his or her sole name and to be equally responsible for their joint debts, awarding motor vehicles to each party, ordering the husband to pay periodic alimony of $425 per month, and awarding the wife one-half of the husband’s PECo retirement account.

The husband, through new counsel, filed a motion pursuant to Rule 59(e), Ala. R. Civ. P., seeking to delete from the judgment the award of retirement benefits and an order “eliminating or reducing” the periodic-alimony award. As to retirement benefits, the husband quoted the entirety of § 30-2-51(b) and asserted that the wife had been married to the husband for only six years during the accumulation of the PECo retirement account, that the wife was not legally entitled to retirement benefits that had accrued before the parties married, and that the wife had failed to establish the present value of any benefits to which she had claimed entitlement. As to alimony, the husband asserted that, the evidence at trial had demonstrated that “all of [the wife’s] living expenses and business expenses were met in full by her current business income” so as to warrant the elimination or reduction of the periodic alimony awarded. Although the trial court scheduled a hearing on the postjudgment motion, the motion was not expressly ruled upon, and it was denied by operation of law pursuant to Rule 59.1, Ala. R. Civ. P., 90 days after it was filed. The husband timely appealed.

The husband, in his appellate brief, asserts, among other things, that the trial court’s award to the wife of any portion of his PECo retirement benefits was contrary to § 30-2-51(b). The wife’s appellate brief does not address the correctness of the trial court’s award of retirement benefits except to assert that the husband waived any objection to the introduction of financial information by his conduct at trial. However, caselaw does not support the proposition that an objection to an award of retirement benefits as being contrary to law as set forth in § 30-2-51(b) may not be asserted after trial, at the post-judgment stage. See, e.g., Mitchell v. Mitchell, 69 So.3d 904, 906 (Ala.Civ.App. 2011) (noting, in the context of an opinion reversing a judgment awarding retirement benefits in contravention of § 30-2-51(b), that the appealing husband’s postjudgment motion had “challenged ... the award of 50% of his retirement benefits to the wife”). In this case, the husband’s various attorneys placed the trial court on notice that an award of retirement benefits must necessarily conform to § 30-2-51 (b) and that such an award in this particular case might not be permissible under that statute; thus, we conclude that the issue was preserved.

Moreover, we are compelled to agree with the substance of the husband’s contention regarding the award of retirement benefits.

“Although, by statute, a trial court may include in the estate of either spouse ‘the present value of any future or current retirement benefits[ ] that a spouse may have a vested interest in ... on the date the action for divorce is filed,’ that court may do so only when certain conditions are met, one of which is that ‘[t]he parties have been married for a period of 10 years during which the retirement was being accumulated.’ Ala.Code 1975, § 30-2-51(b).”

Alexander v. Alexander, 985 So.2d 490, 493 (Ala.Civ.App.2007) (emphasis added). Here, the only evidence presented to the trial court regarding the “accumulation” of the husband’s PECo retirement benefits was that he and the wife had been married for only 6 of the 28 total years during which he had accrued retirement benefits via his employment with PECo and that he had thereafter retired and started drawing retirement benefits. A plain reading of subsection (b)(1) of § 30-2-51 yields the conclusion that a trial court does not have the discretion to divide one party’s retirement benefits incident to a divorce judgment unless the parties to the action have been married for a 10-year period during which retirement benefits were accumulated. As a result, the trial court erred as a matter of law in awarding the wife any portion of the husband’s PECo retirement benefits.

Based upon the text of § 30-2-51(b)(1), the trial court’s property division is due to be reversed insofar as it included an award of a portion of the husband’s PECo retirement benefits to the wife. However, as Alexander also notes, our reversal as to that issue also warrants reversal as to the related issue of the trial court’s award of alimony in this case, and our statements in Alexander apply with equal force in this case:

“ ‘The division of property and the award of alimony are interrelated, and appellate courts review the entire judgment in determining whether the trial court abused its discretion as to either issue. - “A court has no fixed standard to follow in awarding alimony or in dividing marital property[; r]ather the award or division need only be equitable and be supported by the particular facts of the case.” Because we review the award of alimony and the division of marital property together to determine whether the trial court abused its discretion, and because we are reversing the trial court’s judgment insofar as it awards the wife a portion of the funds in the husband’s [retirement account], we must also reverse the trial court’s judgment as to the property division and alimony award in its entirety. Upon remand, the trial court may adjust those awards so as to create an equitable property division between the parties.’ ”

Alexander, 985 So.2d at 493 (quoting Sumerlin v. Sumerlin, 964 So.2d 47, 50 (Ala.Civ.App.2007) (internal citations omitted)).

REVERSED AND REMANDED.

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

      . We thus do not reach the husband’s alternative argument that the award of 50% of the husband’s retirement benefits would also necessarily have been violative of § 30-2-51(b)(2) by virtue of the potential inclusion in that award of benefits accumulated by the husband before the parties’ marriage.


text:
    Brenda Joyce SMITH v. BRETT/ROBINSON CONSTRUCTION COMPANY, INC.
    2150245.
    Court of Civil Appeals of Alabama.
    July 22, 2016.

      Eaton G. Barnard of Citrin Law Firm, P.C., Mobile, for appellant.
    William E. Pipkin, Jr., of Austin, Lewis, Pipkin & Maddox, PC, Mobile, for appel-lee.
   PITTMAN, Judge.

Brenda Joyce Smith appeals from a judgment of the Baldwin Circuit Court (“the trial court”) ruling that Brett/Robinson Construction Company, Inc. (“the employer”), is not required, pursuant to the Alabama Workers’ Compensation Act, Ala. Code 1975, § 25-5-1 et seq., to pay for additional diagnostic and treatment procedures relating to injuries Smith claims she suffered as a result of an on-the-job accident. We affirm the trial court’s judgment.

Smith, who is a construction superintendent, injui'ed her left knee when she tripped over a pallet of tile and fell at her place of employment. In her brief to this court, Smith suggests that the fall resulted in a tom meniscus that has not been repaired. The trial court determined, however, that Smith’s current problems are caused by arthritis and are unrelated to the accident. .Smith responds by asserting that, if her problems are caused by arthritis, that arthritis was caused or accelerated by the accident.

The workplace accident occurred in May 2013. Smith testified that she has been in pain since that time. Approximately six weeks after the accident, Dr. Greg Terral, Smith’s initial authorized treating physician, performed arthroscopic surgery on Smith’s knee. Notes from that surgery identify Smith’s presurgery diagnosis as “[l]eft knee osteoarthritis, suspected men-iscal pathology,” and identify her postoperative diagnosis as “[l]eft knee, diffuse grade III chondromalacia of the medial and patellofemoral compartment with unstable chondral tissue.” Dr. Terral’s notes state further that “[findings ... [were] that of intact meniscal tissue.”

Smith testified that, after surgery, her pain worsened and that she requested a new authorized treating physician. Smith chose Dr. Joseph McGowin from a panel of four physicians. See § 25-5-77(a), Ala. Code 1975. Smith first saw Dr. McGowin on October 21, 2013. Dr. McGowin’s notes from that visit indicate that magnetic resonance imaging (“MRI”) performed in connection with Dr. Terral’s treatment of Smith showed “a lateral compartment bone bruise, some degenerative changes and possible meniscal tear.” Those notes go on to state, however, that Smith had undergone arthroscopic surgery “with no evident meniscal tears but did have medial and lateral compartment arthritis,”

After examining Smith, Dr. McGowin noted: “I think that [Smith] had a contusion and sprain of the knee initially with a bone bruise that resolved on subsequent MRI.” He noted further that Smith’s “main symptoms now seem to be from the arthritis which preexisted her fall” and that there wex-e “[n]o evident meniscal tears or anterior cruciate ligament tear[s].” Dr. McGowin recommended physical therapy.

Smith saw Dr. McGowin again on November 14, 2013. Dr. McGowin’s notes from that visit state that he had “reviewed again the MRI and the surgical pictures” and that “I don’t know that there is a lot to do here.” Dr. McGowin also ordered a bone scan, the results of which were “suggestive of osteoarthritis.”

Smith saw Dr. McGowin again on November 26, 2013. Dr. McGowin’s notes from that visit reiterate that the results of the bone scan were “suggestive of arthritis consistent with what was seen on photos from surgery.” Dr. McGowin also stated that, “[g]iven the time frame [of] approximately 6 weeks from [Smith’s] on the job injury to surgery[,] I do not believe arthritis noted [during] surgery was caused by the on the job injury.” As Smith points out, however, Dr. McGowin did state further that “[c]ertainly her symptoms may have been the result of injury and aggravation of arthritis.”

On January 16, 2014, Dr. McGowin determined that Smith was at maximum medical improvement, assigned her a 5% permanent partial impairment of the left leg, and released her to return to work. Smith’s coworkers and supervisors testified that Smith had never complained of knee pain before the accident and that, after she returned to work in January 2014, they witnessed her consistently demonstrating pain or limping.

Smith continued to suffer from pain and, on November 12, 2014, saw Dr. McGowin again. Dr. McGowin noted at that time that “[u]nfortunately I think this is still mostly going to be arthritic in nature” but that Smith had stated “she feels like some shifting.” Dr. McGowin indicated in his notes that an MRI would be ordered. In her brief to this court, Smith points to a portion of the appellate record containing what appears to be a report from an MRI performed on November 13, 2014. Smith asserts that that report shows that there was a “‘tear’ of her ‘medial meniscus.’” The copy of the report in the record is not entirely legible, but it appears to state as follows:

“IMPRESSION: Mild anterior cruciate and limited posterior cruciate chronic sprain injuries with the bulk of the anterior and cruciate ligaments intact; mild to moderate retropatellar chondromala-cia chronic; small to moderate joint effusion; limited chronic intrasubstance tear posterior horn medial meniscus.”

A record created by Dr. McGowin on November 26, 2014, indicates that an MRI report showed “a little intrasubstance degeneration of the medial meniscus, the chondral changes and a little edema in the cruciate ligaments but nothing that shows any reason to consider that surgery would help.” Dr. McGowin’s record states that Smith was upset to learn of Dr. McGowin’s opinion and that Dr. McGowin informed her that there was “no cure for arthritis.”

One of Smith’s coworkers testified during the trial that, on one occasion after Smith had returned to work, the coworker had heard Smith “holler” in the employee break room and that Smith had stated at that time that her knee had “popped” and that it hurt. Smith saw Dr. McGowin on February 19, 2015. Dr. McGowin’s notes indicate that Smith had informed him that, a week earlier, she had “turned, heard and felt a pop,” and that “[t]he knee has had increased pain since” that incident. Dr. McGowin noted that, in his opinion, Smith had had “a flare up” of arthritis “and possibly IT band tendinitis.” Smith testified during the trial that she had not had any additional accidents or suffered any new injuries since the workplace accident, and she denied telling Dr. McGowin that she had had a new accident or injury.

Smith saw Dr. McGowin again on March 9, 2015. Dr. McGowin’s notes state that an “MRI report is read as a meniscal capsular medial meniscal tear with tricom-partmental arthritis.” Dr. McGowin, however, stated that his own “review [of the MRI] shows some intrasubstance degeneration peripherally at the medial meniscus with no evident extension to the joint surface” and that he “really do[es] not think that this is a tear and the report is very similar to the report that [Smith] had in the past, even pre surgery.” As noted, other medical records indicate that Dr. Terral did not find a meniscus tear when he performed arthroscopic surgery on Smith. Dr. McGowin went on to state: “I think [Smith’s] main symptoms are IT band tendinitis and arthritis” and that “there is limited benefit to considering surgery.”

On April 23, 2015, Smith saw Dr. McGowin again. Dr. McGowin noted on that date that “MRIs have shown intrasub-stance degeneration or possibly complex tear of the medial meniscus” but that “[tjhere was no tear noted at arthroscopy done by Dr. Terral previously.” Dr. McGowin concluded:

“At this point there are really only 2 options. One is to consider arthroscopic examination to be certain that there is no unstable meniscal tear. [Smith] understands that this will not affect the arthritis that we know that she has and is only of limited likelihood to result in some symptom improvement for the arthritis and this would only be short term. At this point I would recommend that she see Dr. [James] Cockrell for his evaluation and consideration of arthros-copy. If surgery is not contemplated then she is probably at [maximum medical improvement].”

Smith points to a portion of the record containing a letter from a representative of the employer’s workers’ compensation insurer to Dr. McGowin, which is dated April 29, 2015. That letter states that, on February 12, 2015, Smith “had a new occurrence when she ‘turned in her kitchen and felt a pop in her knee’ causing increased knee pain since that time.” The correspondence goes on to state that an MRI performed on March 3, 2015, “indicated a medial meniscal tear” and concludes by requesting Dr. McGowin’s opinion as to whether Smith’s “current complaints are related to her original knee injury ,., or [whether] this meniscal tear is a new injury.” Dr. McGowin responded to the correspondence, stating:

“With respect [to] Ms. Smith’s current possibility of meniscal tear, it is more likely to be a recent injury given the change in MRI from November 2014 to March 2015. Given her continued symptoms throughout the period which I have seen her, it is difficult to be certain from a postoperative MRI but my opinion would be that her current aggravation of her symptoms and probability of medial meniscal tear is unrelated to original on-the-job injury given the change in MRI appearance of the medial meniscus and her increased symptoms after her February 2015 injury.”

On November 12, 2015, Smith saw Dr. Cockrell. Dr. Cockrell’s notes from that visit state:

“[Smith] wants to go ahead with diagnostic arthroscopy and meniscectomy if indicated. I have told her that her MRI shows some degenerative changes in the meniscus and there is a possibility that there could be a tear there but there is also a possibility that this could all just be coming from arthritis in which case I probably will not be able to help her much. She states that she understands that and wishes to go ahead with the procedure.”

The employer’s workers’ compensation insurer refused to pay for Smith’s surgery.

After the trial, the trial court entered a judgment ruling that the employer was not responsible for paying for the proposed additional surgery and that the employer had “properly paid for all reasonable and necessary medical treatment related to [Smith’s] May 10, 2013[,] injury.” In support of its ruling, the trial court found that Dr. Terral had performed surgery “to repair [Smith’s] torn meniscus and chondro-plasty to address the arthritis in [Smith’s] left knee,” that Dr. McGowin had “diagnosed a contusion and sprain from the initial accident and found no indication of a torn meniscus or a torn [anterior cruciate ligament],” and that Dr. McGowin had determined that Smith’s “current symptoms are from arthritis in the knee [and] are unrelated to the on the job accident.” The trial court also noted that Dr. Cockrell had informed Smith that an MRI showed degenerative changes in the meniscus in Smith’s knee, that Dr. Cockrell believed “that there was a possibility that there could be a tear” but that Dr. Cockrell also indicated that “it could just be arthritis, in which ease surgery would not be much help.” The trial court found that Dr. Cockrell did “not express any opinion on medical causation.”

The trial court found that “[t]he medical evidence ... states that [Smith’s] left knee pain and problems are due to arthritis and not the accident in question,” that Smith’s “current ... complaints and problems are not a result of her original accident and injury,” that “[t]here is no medical evidence that [Smith] needs surgery,” and that the surgery Dr. Cockrell agreed to perform “is not reasonable or necessary as a result of the original accident.” The trial court concluded that the employer “has provided all reasonable and necessary medical treatment” for the injuries arising out of the workplace accident and that “if [Smith] insists upon surgery, she shall do so at her own expense.” Smith timely appealed.

“Pursuant to [§ 25-5-77(a), Ala.Code 1975], employers are ‘financially responsible, subject to certain cost limitations, for the medical and surgical treatment obtained by an employee due to injuries received in an accident arising out of and in the course of the employee’s employment.’ Ex parte Publix Super Markets, Inc., 963 So.2d 654, 658 (Ala.Civ. App.2007). Section 25-5-77 does not make employers responsible for treatment ‘for conditions unrelated to an accident arising out of and in the course of the employee’s employment.’ Id.”

Ex parte Ward Int'l, 189 So.3d 90, 92 (Ala.Civ.App.2015).

“Section 25-5-81(e), Ala.Code 1975, provides the standard of review in workers’ compensation cases:
“‘(1) In reviewing the standard of proof set forth herein and other legal issues, review by the Court of Civil Appeals shall be without a presumption of correctness.
“ ‘(2) In reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence.’
“Substantial evidence is ‘ “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” ’ Ex parte Trinity Indus., Inc., 680 So.2d 262, 268 (Ala.1996) (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989))."

White Tiger Graphics, Inc. v. Clemons, 88 So.3d 908, 910 (Ala.Civ.App.2012). We also note that the trial court, which heard the testimony ore tenus, is charged with judging the credibility of the witnesses and weighing the evidence presented. City of Thomasville v. Tate, 175 So.3d 663, 667 (Ala.Civ.App.2015).

As noted, Smith suggests that her current problems are the result of a torn meniscus caused by the workplace accident. She asserts that the testimony at trial demonstrates that she did not suffer from knee problems before the accident and that she has been in pain ever since. She points to Equity Group-Alabama Division v. Harris, 55 So.3d 299 (Ala.Civ. App.2010), for the proposition that “‘[a] trial court may infer medical causation from circumstantial evidence indicating that, before the accident, the worker was working normally with no disabling symptoms but that, immediately afterwards, those symptoms appeared and have persisted ever since.’ ” 55 So.3d at 311 (quoting Waters Bros. Contractors, Inc. v. Wimberley, 20 So.3d 125, 134 (Ala.Civ.App.2009)).

The trial court in the present case was authorized to consider evidence indicating that Smith had not suffered from knee pain until after the workplace accident; that does not mean that the trial court was required to ignore medical evidence indicating that the current condition of Smith’s knee is due to arthritis. Although we acknowledge that the medical evidence suggests a possibility of a torn meniscus, we cannot conclude that substantial evidence does not support the trial court’s conclusion. See Hammons v. Roses Stores, Inc., 547 So.2d 883, 885 (Ala.Civ. App.1989) (stating that “evidence presented by a workmen’s compensation claimant must be more than evidence of mere possibilities”). See also Landers v. Lowe’s Home Ctrs., Inc., 14 So.3d 144, 151 (Ala. Civ.App.2007) (“[The] statutorily mandated scope of review does not permit this court to reverse the trial court’s judgment based on a particular factual finding on the ground that substantial evidence supports a contrary factual finding; rather, it permits this court to reverse the trial court’s judgment only if its factual finding is not supported by substantial evidence.”).

Smith also argues that, assuming her current pain is caused by arthritis, “if employment aggravates, accelerates or combines with ... arthritis, to produce a disability, the pre-existing condition does not disqualify [Smith] from receiving worker’s compensation benefits.” She contends that, if she was able to perform her job duties before the accident, then “she did not have arthritis before the fall as far as the law is concerned.”

As Smith points out, “ ‘[i]t is well settled that no preexisting condition is deemed to exist for the purposes of a workers’ compensation award if the employee was able to perform the duties of his job before suffering the injury made the basis of the claim.’” Reeves Rubber, Inc. v. Wallace, 912 So.2d 274, 279 (Ala. Civ.App.2005) (quoting BE & K Constr. Co. v. Reeves, 898 So.2d 738, 746-47 (Ala.Civ.App.2004)). That does not mean, however, that Smith was not required to prove that it was the workplace accident that actually caused her arthritis to manifest or to become aggravated. Smith relies on testimony indicating that she was not in pain before the accident and one note in Dr. McGowin’s medical records stating that Smith’s “symptoms may have been the result of injury and aggravation of arthritis.” (Emphasis added.) As noted, evidence of a mere possibility is not sufficient to demonstrate medical causation. Hammons, 547 So.2d at 885. Moreover, other evidence shows that Dr. McGowin was of the opinion that Smith’s current problems are the result of preexisting arthritis that was not caused by the workplace accident. Based on all the evidence, we cannot conclude that the trial court erred.

The trial court’s judgment is supported by substantial evidence. Accordingly, that judgment is due to be affirmed.

AFFIRMED.

THOMPSON, P.J., and THOMAS, MOORE, and DONALDSON, JJ„ concur.

      . The trial court also determined that Smith “has a fifty percent ... impairment to the use of her lower extremity” and is entitled to compensation therefor. That finding is not at issue on appeal.

      . Smith places emphasis on the correspondence from the employer’s workers’ compensation insurer to Dr. McGowin. She asserts that there was no evidence of a "new” accident or injury. She suggests that Dr. McGowin's opinion was based on what Smith describes as a "fabricated story,” although Dr. McGowin’s notes do reflect that Smith relayed to him that she had "turned, heard and felt a pop,” and that her knee pain had increased. Although Dr. McGowin opined in response to the referenced letter that, assuming there indeed was a meniscus tear, it likely was not due to the initial workplace accident, he did not state definitely that there was a meniscus tear. Rather, it is clear from his notes that he believed there was no tear and that Smith’s problems are the result of arthritis. The trial court agreed with that opinion and did not find that Smith had a meniscus tear that resulted from a new accident.


author: THOMPSON, Presiding Judge. THOMAS, Judge,

text:
    MOBILE COUNTY DEPARTMENT OF HUMAN RESOURCES v. T.W. and L.M.
    2150069.
    Court of Civil Appeals of Alabama.
    July 22, 2016.

      Sharon E. Ficquette, chief legal counsel, and Karen P. Phillips, asst. atty. gen., Department of Human Resources, for appellant.
    Frances R. Niccolai, Mobile, for appellee T.W.
   On Rehearing Ex Mero Motu

THOMPSON, Presiding Judge.

This court hereby places this case on rehearing ex mero motu. This court’s opinion of June 17, 2016, was previously withdrawn by order.

The Mobile County Department of Human Resources (“DHR”) appeals from three separate orders of the Mobile Juvenile Court (“the juvenile court”), entered on September 15, 2015, denying its petitions seeking to terminate the parental rights of T.W. (“the mother”) and L.M. (“the father”) to their three children.

In response to DHR’s arguments on appeal, the mother argues that the juvenile court’s September 15, 2015, orders were not sufficiently final to support the appeal. Each of the September 15, 2015, orders states, in pertinent part:

“3. The child is a dependent child as that term is defined in the Code of Alabama and is in the legal custody of [DHR,] which agency is charged with providing services for dependent children.
“4. The mother and the father were both duly served with notice of the petition on December 19, 2014.
“5. The testimony presented to the Court as summarized, in part by the attached report which was admitted into evidence, establishes that the father has abandoned the child and the child’s siblings as that term is defined in the Code of Alabama.
“6. Said evidence also establishes that the mother has made little progress towards completing the plan of reunification, and that [DHR] made all reasonable efforts to promote reunification by offering numerous services to the mother over a period of several years, although the mother continues to make efforts.
“7. The Court finds that at the present time the mother is unable to discharge her responsibilities to and for the child, as she, at the time of the hearing, was still in drug treatment having had a positive drug screen as late as April, 2015.
“8. However, the Court further finds that the child has no adoptive resource available at this time. Consequently, the Court concludes that the Court cannot make a finding that it is in the best interest of the child to terminate the parental rights of the parents to allow a plan of adoption to be finalized because at the present time there is no available resource and given the age of the child and the nature of the relationship between the siblings, the Court cannot find that [DHR] will be able, in the foreseeable future, to finalize [its] plan of adoption.
“9. The Court concludes therefore that [DHR] should continue to attempt reunification efforts with the mother, while at the same time [DHR] can seek an adoptive resource.
“10. However, it is due to the policies of [DHR] of not seeking adoptive resources prior to the granting of a termination of parental rights petition that prevents a true effort to achieve concurrent plans. Thus, the Court cannot find from clear and convincing evidence that adoption is an achievable plan.
“It is therefore ORDERED, ADJUDGED, and DECREED by the Court that the petition to terminate parental rights is hereby DENIED. The Court does ORDER [DHR] to exercise additional efforts to reunify the child with the mother and does set the matter for a permanency hearing on 12/18/2015 at 8:30 a.m.
“It is further ORDERED that [DHR] shall be prepared on that date, as shall the mother, to present evidence of the progress being made towards reunification. It is further ORDERED that the petition to terminate parental rights is not dismissed, but merely denied at this time. Should [DHR] present evidence that the mother has made little or no progress towards reunification, and that there is no reasonable expectation that progress can be made, and present to the Court evidence that [DHR] can reasonably expect to successfully place the child for adoption, the Court will reconsider the granting of the petition.
“The Court does reserve jurisdiction to enter such further and future orders as may be necessary for the best interests of the child.”

(Capitalization in original.)

This court may consider an appeal only from a juvenile court’s final judgment. Rule 4(a)(1)(E), Ala. R. App P.

“Subject to certain exceptions not relevant in this case, an appeal lies only from a final judgment. § 12-22-2, Ala. Code 1975; Bean v. Craig, 557 So.2d 1249, 1253 (Ala.1990). “[A] final judgment is a terminative decision by a court of competent jurisdiction which demonstrates there has been complete adjudication of all matters in controversy between the litigants within the cognizance of that court.” ’ Dabbs v. Four Tees, Inc., 984 So.2d 454, 456 (Ala.Civ.App.2007) (quoting Jewell v. Jackson & Whitsitt Cotton Co., 331 So.2d 623, 625 (Ala. 1976)). ‘ “[T]he test of a judgment’s finality is whether it sufficiently ascertains and declares the rights of the parties.”’ Coosa Valley Health Care v. Johnson, 961 So.2d 903, 905 (Ala.Civ. App.2007) (quoting Ex parte DCH Reg’l Med. Ctr., 571 So.2d 1162, 1164 (Ala.Civ.App.1990)).”

Ex parte K.S., 71 So.3d 712, 714 (Ala.Civ.App.2011).

In this case, the September 15, 2015, orders denied DHR’s petitions to terminate the parents’ parental rights at that time, i.e., at the time the juvenile court entered its orders. However, those orders specify that the juvenile court is not dismissing the termination-of-parental-rights petitions or entering a permanent ruling on those petitions. Instead, the juvenile court ordered that DHR and the mother present additional evidence regarding the merits of DHR’s termination petitions. Thus, the September 15, 2015, orders did not ascertain or declare the rights of the parties to the termination actions; rather, those orders anticipate a future ruling on the merits of DHR’s termination petitions.

“Generally, ‘only a final judgment will support an appeal. § 12-22-2, Ala. Code 1975. An order that does not dispose of all claims or determine the rights and liabilities of all the parties to an action is generally not final.’ Stone v. Haley, 812 So.2d 1245, 1246 (Ala.Civ.App.2001).” T.H. v. Jefferson Cty. Dep’t of Human Res., 100 So.3d 583, 585 (Ala.Civ.App. 2012). The September 15, 2015, orders do not dispose of DHR’s claims seeking the termination of the parents’ parental rights. Accordingly, we conclude that those orders are not final and that this appeal is due to be dismissed. T.H., supra.

APPEAL DISMISSED.

DONALDSON, J., concurs.

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

THOMAS, J., dissents, with writing, which PITTMAN, J., joins.

THOMAS, Judge,

dissenting.

I cannot conclude that the judgments in the present case are nonfinal judgments. The Mobile Juvenile Court, based on the evidence presented at the trial on the termination-of-parental-right petitions, determined that the petitions were due to be denied. Then, in its judgments, the juvenile court purported to maintain jurisdiction over the petitions so that, at some future date, the Mobile County Department of Human Resources (“DHR”) could present evidence indicating whether T.W. (“the mother”) was making any progress toward reunification based on rehabilitation efforts undertaken by DHR after the conclusion of the trial and after the entry of the judgments denying DHR’s petitions. Thus, the juvenile court denied the petitions based on the evidence presented at the trial regarding the current conditions of the mother and L.M. (“the father”) and purported to maintain jurisdiction over the petitions pending presentation of new evidence regarding the mother’s progress toward reunification.

This case is not like T.H. v. Jefferson County Department of Human Resources, 100 So.3d 583, 585 (Ala.Civ.App.2012), which involved a juvenile court’s failure to address a claim for child support, or Ex parte K.S., 71 So.3d 712, 714 (Ala.Civ.App.2011), which involved an order issued by a juvenile court after a review hearing in which the juvenile court directed a parent to enter a residential woman’s shelter and complete its programs. Instead, in this case, the juvenile court heard the evidence regarding both parents and their ability or willingness to perform their parental duties, and it determined that, based on that evidence, and at the time of the entry of the judgments, the termination of the parents’ parental rights was not warranted. Thus, it decided the controversy before it.

A juvenile court cannot properly allow a party to later reopen a case to present evidence that was not merely undiscovered at the time of the original trial but did not actually exist at the time of the original trial. To do so in this case would, in effect, grant to DHR a new trial based on new evidence that had, at the time of the entry of the judgments, not come into being. We do not permit a trial court to grant a new trial under Rule 59 or Rule 60(b)(2), Ala. R. Civ. P., when a party seeks to present new evidence, because, as our supreme court has explained, allowing a new trial based on “evidence which has come into existence after the trial is over ... would allow all trials perpetual life.” Moody v. State ex rel. Payne, 344 So.2d 160, 163 (Ala.1977). Newly discovered evidence may form the basis of a motion seeking to reopen the evidence or a motion for a new trial; however, new evidence cannot. Marsh v. Smith, 67 So.3d 100, 107-08 (Ala.Civ.App.2011). Thus, I conclude that the judgments denying DHR’s petitions were final judgments and that the juvenile court’s attempt to retain jurisdiction over the petitions for the later presentation of whatever new evidence might come into being was a nullity. I would therefore consider the merits of DHR’s appeal.

PITTMAN, J., concurs.

      . We also note that, although it found in its September 15, 2015, orders that the father had abandoned the children, the juvenile court did not make any further mention of the father, other than in its general denial, at that time, of the termination-of-parental-rights petitions. See P.D.S. v. Marshall Cty. Dep’t of Human Res., 32 So.3d 1288, 1290-91 (Ala. Civ.App.2009) (holding that a juvenile court’s failure to rule on that part of a petition that sought the termination of the father’s parental rights rendered its order terminating the mother’s parental rights nonfinal).