author: THOMAS, Judge. THOMPSON, Presiding Judge,

text:
    Molly V. TANNER v. Ronald W. TANNER, Jr.
    2150519
    Court of Civil Appeals of Alabama.
    October 7, 2016

      Jessica Pilgrim, Mobile, for appellant.
    Submitted on appellant’s brief only.
   THOMAS, Judge.

Molly Y. Turner (“the mother”) and Ronald W. Turner, Jr. (“the father”), were married in 1999. There are five children (“the children”) of the marriage. The parties were divorced by a judgment entered by the Mobile Circuit Court on October 21, 2015. The circuit court awarded custody of the children to the mother by incorporation of the parties’ agreement into the divorce judgment. At issue in this appeal is the award of child support, The divorce judgment reads, in pertinent part:

“With respect to child support, the [father] shall pay the [mother] $1,770.00 per month as child support, in compliance with the [Rule 32, Ala. R. Jud. Admin., child-support] guidelines based upon the income which the [father] admitted to making. The Account’s Clerk shall so note. Although the court is of the opinion that the [father] is able to make more money, insufficient evidence was presented regarding the amount to impute. In the future, so long as the children are minors, the [father] shall show the [mother] a copy of his tax returns each year (within one week of filing) so that she may determine if she could ask for-additional child support.”

On November 20, 2015, the mother filed a timely postjudgment motion in which she asserted, among other things, that the father’s testimony that he was not willing to work as much as he had in the past was sufficient to allow the circuit court to impute income to the father. After a post-judgment hearing, the circuit court entered an amended judgment on February 10, 2016, in which it modified the father’s child-support obligation to $2,000 per month because the father was no longer providing the children’s health-insurance coverage after they had been enrolled in the “ALL Kids” health-care program. The circuit court modified the child-support award, purportedly, “in compliance with the [child-support] guidelines.”

On March 22, 2016, the mother filed a timely notice of appeal seeking our review of whether the circuit court had abused its' discretion by declining to impute additional income to the father based upon his earning potential and by concluding that an award of $2,000 per month in child support is sufficient 'to meet the needs of the children. However, we cannot address the mother’s arguments because we cannot determine how the circuit court concluded that the father should pay $2,000 per month for the support of five children “in compliance with” Rule 32, Ala. R. Jud. Admin.

“Compliance with Rule 32(E) is mandatory, even though the trial court may find that the application of the guidelines would be unjust or inequitable. When the court determines that application of the guidelines would be manifestly unjust or inequitable, and then deviates from the guidelines in setting a support obligation, the court must make the findings required by Rule 32(A)(ii), Ala. R. Jud. Admin.”

Thomas v. Norman, 766 So.2d 857, 859 (Ala. Civ. App. 2000) (citation omitted).

The child-support guidelines do not provide for an award of $2,000 per month for the support of five children. Pursuant to the Appendix to Rule 32, a trial court may award $1,995 in monthly child support if the parents of five children earn a combined monthly adjusted gross income of $8,600 and may award $2,001 in monthly child support if the parents of five children earn a combined monthly adjusted gross income of $8,650. In this case, the circuit-court judge orally indicated that she had considered $83,000 to be the parties’ combined gross annual income, which amounts to a combined monthly adjusted gross income of $6,917. Pursuant to the Appendix to Rule 32, a trial court may award $1,770 per month for the support of five children based on a combined monthly adjusted gross income of $6,917.

Because the circuit court modified the divorce judgment, purportedly “in compliance with Rule 32,” but did not order the father to pay $1,770 per month in child support, we have considered whether the circuit court could have determined that the evidence presented demonstrated that the application of the child-support guidelines would be manifestly unjust or inequitable; however, Rule 32(A)(ii) provides that, if the circuit court had made such a determination, it was required to include a written statement to that effect. A trial court may deviate from the child-support guidelines in determining a child-support amount; however, “any deviation is improper if it is not justified in writing.” Thomas, 766 So.2d at 859. If a trial court fails to apply the child-support guidelines or to present findings of fact based upon evidence before the court indicating why the child-support guidelines were not followed, this court will reverse. See Simmons v. Ellis, 628 So.2d 804, 804 (Ala. Civ. App. 1993).

We have also considered the effect of the circuit court’s conclusion that the father was voluntarily underemployed.

“ ‘The trial court is afforded the discretion to impute income to a parent for the purpose of determining child support, and the determination that a parent is voluntarily unemployed or underemployed “is to be made from the facts presented according to the judicial discretion of the trial court.” Winfrey v. Winfrey, 602 So.2d 904, 905 (Ala. Civ. App. 1992). See also Rule 32(B)(5), Ala. R. Jud. Admin.’
“Clements v. Clements, 990 So.2d 383, 394 (Ala. Civ. App. 2007).”

Whaley v. Whaley, 218 So. 3d 360, 364 (Ala. Civ. App. 2016). In this case, the finding in the divorce judgment that the father was “able to make more money” indicates that the circuit court considered the father to be voluntarily underemployed; however, the circuit court further explained that it had determined that insufficient evidence was presented regarding the amount of income to be imputed to the father.

“In determining the amount of income to be imputed to a parent who is unemployed or underemployed, the court should determine the employment potential and probable earning level of that parent, based on that parent’s recent work history, education, and occupational qualifications, and on the prevailing job opportunities and earning levels in the community.”

Rule 32(B)(5).

We conclude that the circuit court did not impute income to the father, but it deviated from child-support guidelines without setting out, in writing, the reason for doing so. Therefore, the portion of the circuit court’s judgment regarding the father’s child-support obligation is reversed and the cause is remanded for the circuit court to apply the child-support guidelines, unless it determines that the application of the child-support guidelines is manifestly unjust or inequitable, in which case it may deviate from the child-support guidelines in setting a support obligation, provided that it makes the findings required by Rule 32(A)(ii), State ex rel. Dep’t of Human Res. v. Hogg, 689 So.2d 131, 133 (Ala. Civ. App. 1996); Thomas, 766 So.2d at 859.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

Thompson, P.J., dissents, with writing.

THOMPSON, Presiding Judge,

dissenting.

“If the court finds that either parent is voluntarily unemployed or underemployed, it shall estimate the income that parent would otherwise have and shall impute to that parent that income .... ” Rule 32(B)(5), Ala. R. Jud. Admin. “This court, noting that the language of Rule 32 is mandatory, has held that where a trial court finds a parent to be voluntarily unemployed or underemployed, it is required to impute income to that parent.” Van Houten v. Van Houten, 895 So.2d 982, 986 (Ala. Civ. App. 2004). I believe that the evidence supports the trial court’s determination that Ronald W. Tanner, Jr. (“the father”), is voluntarily underemployed, and I conclude that that same evidence is sufficient to allow the trial court to estimate an appropriate amount of income to be imputed to the father. See Rule 32(B)(5). Accordingly, I dissent.

      . That amount is based on the father’s income; the evidence presented indicated that the mother had no income.


source: Caselaw Access Project

author: THOMAS, Judge. MOORE, Judge,

license: Public Domain

text:
    L.R.B. v. TALLADEGA COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2150042.
    Court of Civil Appeals of Alabama.
    July 8, 2016.

      Rachel H. Pinson, Sylacauga, for appellant.
    Sharon E. Ficquette, chief legal counsel, and Karen P. Phillips, asst. atty. gen., Department of Human Resources, for ap-pellee.
    Susan M. Haynes of Gaines, Gaines & Rasco, P.C., Talladega, guardian ad litem.
   On Application for Rehearing

THOMAS, Judge.

The opinion of April 29, 2016, is withdrawn, and the following is substituted therefor.

In 2014, the Talladega Juvenile Court (“the juvenile court”) terminated the parental rights of R.C. (“the mother”) and M.H. (“the presumed father”), a married couple, to A.C.B. (“the child”). Subsequently, L.R.B. (“the alleged biological father”) filed two separate complaints seeking to establish his paternity of the child and seeking to be awarded custody, of the child; those actions were assigned case numbers JU-12-82.04 and JU-12-82.05, respectively.

In September 2015, the juvenile court held one hearing on both complaints at which the alleged biological father presented evidence aimed at establishing his standing to seek a determination of the child’s paternity. Under the Alabama Uniform Parentage Act, codified at Ala. Code 1975, § 26-17-101 et seq. (“the AUPA”), by virtue of his being married to the mother at the time of the birth of the child, the presumed father was afforded a presumption of paternity. The presumed father’s presumption arose under Ala.Code 1975, § 26-17-204(a)(l), which states that “[a] man is presumed to be the father of a child if ... he and the mother of the child are married to each other and the child is born during the marriage.” Alabama law provides that when a child has a presumed father who persists in his status as the legal father of a child, no one may seek to disprove the presumed father’s paternity. Ala.Code 1975, § 26-17-607; Ex parte Presse, 554 So.2d 406 (Ala.1989), However, a man seeking to establish his paternity of a child with a presumed father must be given the opportunity to present evidence regarding whether the presumed father has given up his presumption by his conduct. See J.OJ. v. R.R., 895 So.2d 336, 340 (Ala.Civ.App.2004) (explaining that a man is foreclosed from attempting to establish his paternity of a child who has a presumed father only' if the presumed father persisted in his presumption and stating that a trial court should “hold an evi-dentiary hearing at which the parties could attempt to establish that the [presumed father] either did or did not persist in his presumption of paternity”).

At the evidentiary hearing, the alleged biological father presented his own testimony and the testimony of the mother, of Susan Haynes, the guardian ad litem for the child, and of Beverly Booker, the clerk of the Talladega District Court. The mother and Haynes testified that the presumed father had persisted in his presumption of paternity up to the time of the disposition of the termination-of-parental-rights action; neither the alleged biological father nor Booker testified regarding the presumed father’s persistence, or lack thereof, in his presumption of paternity. Based on the testimony presented, the juvenile court determined that the alleged biological father had not proven that the presumed father had not persisted in his presumption of paternity. Thus, the juvenile court dismissed the alleged biological father’s complaints. The alleged biological father appeals those judgments. We affirm.

The alleged biological father argues that, because the presumed father’s parental rights to the child were terminated, the child no longer has a presumed father. In support of his right to seek to prove his paternity of the child, the alleged biological father relies on Ala.Code 1975, § 26-17-606(a), which allows a proceeding to establish paternity to be brought “at any time” when the child has “no presumed, acknowledged, or adjudicated father.” He also-argues that Ala.Code 1975, § 26-17-203, which states that, “[u]nless parental rights are terminated, a parent-child relationship established under [the AUPA] applies for all purposes, except as otherwise specifically provided by other law of this state,” supports his argument. Despite the alleged biological father’s contention, however, the child has a presumed father, regardless of the fact that the presumed father’s rights were terminated.

Our. supreme court determined in Ex parte M.D.C., 39 So.3d 1117 (Ala.2009), that the termination of a parent’s parental rights does not extinguish that parent’s duty to pay support for the child until such time as the child is adopted and the adoption judgment extinguishes that duty. That is, although the rights of a parent are extinguished by a judgment terminating parental rights, all the obligations of the parent are not. Thus, although 'the presumed father has no right to rear the child, he continues to have the duty to support her as her presumed father. If Alabama law were to allow the termination of a presumed father’s parental rights to extinguish the presumption in favor of his paternity, our supreme court could not have concluded that the termination of parental rights does not extinguish a parent’s duty to support his or her child.

Furthermore, to entertain the alleged biological father’s logic would have other illogical and dire consequences. If we consider under what other circumstances a child does not have a presumed, acknowledged, or adjudicated father, we are left to question whether, if a child’s presumed father were to die, another man should be permitted to attempt to prove paternity simply because of the presumed father’s death? We think not. In such a scenario, the presumption in favor of the deceased presumed father would continue, unless the presumed father could be shown to have relinquished his presumed fatherhood during his lifetime. See J.O.J., 895 So.2d at 340 (explaining that, in the case of an alleged biological father’s seeking to establish his paternity despite the existence of a deceased presumed father, the deceased presumed father’s estate should be made a party to the proceeding and an evidentiary hearing should be held so that the parties could attempt to establish that the deceased presumed father “either did or did not persist in his presumption of paternity”).

Furthermore, applying § 26-17-606(a) as the alleged biological father suggests could result in preventing the timely adoption of children who have been made wards of the state. Allowing men to seek to establish “at any time” their paternity of children whose presumed fathers’ rights have been terminated would result in a situation where the finality of the termination of parental rights for purposes of adoption would remain doubtful. A district court in Florida had this to say when considering a similar attempt by an alleged biological father to prove paternity of a child after her married parents’ parental rights were terminated: “[I]f a man who impregnates a married woman were permitted to assert a claim to the child after the legal parents’ parental rights were terminated, that claim would be open-ended perhaps leaving children who might otherwise be adopted without families.” Shuler v. Guardian Ad Litem Program, 17 So.3d 333, 336 (Fla.Dist.Ct.App.2009). Certainly, our legislature could not have intended such a result.

The language of § 26-17-203 does not change our conclusion. Although § 26-17-203 indicates that, “[ujnless parental rights are terminated, a parent-child relationship established under [the AUPA] applies for all purposes,” we do not agree with the alleged biological father that that language results in a determination that a termination of parental rights extinguishes a presumption of paternity that arises under the AUPA, The comment to the section supplies the context for the language used in the statute:

“This section may seem to state the obvious, but both the statement and the qualifier are necessary because without this explanation a literal reading of §§ [26-17-]201-203 could lead to erroneous statutory constructions. The basic purpose of the section is to make clear that a mother, as defined in § [26— 17-]201(a), is not a parent once her parental rights have been terminated. Similarly, a man whose paternity has been established by acknowledgment or by court adjudication may subsequently have his parental rights terminated.”

Uniform Comment to § 26-17-203. Nothing in the language of the comment indicates that the termination of parental rights reverses the presumption of paternity under the AUPA. Instead, the comment indicates that the purpose of the section was to make clear that a parent could have his or her rights terminated despite having been declared a parent under the AUPA.

We cannot agree with the alleged biological father that thé termination of the presumed father’s parental rights resulted in the child’s having no presumed father so that the alleged biological father would have standing to seek an adjudication of his own paternity of the child. The child has a presumed father. The alleged biological father presented no evidence indicating that the presumed father did not persist in his presumed-father status up until the time his parental rights were terminated; in fact, all the testimony presented indicated that the presumed father had persisted in his presumed fatherhood during the termination-of-parental-rights proceeding. Thus, under our long-standing precedent, the alleged biological father lacks standing to seek an adjudication of his paternity of the child. See Ex parte Presse, 554 So.2d at 418. The judgment of the juvenile court dismissing the alleged biological father’s complaints is affirmed.

APPLICATION GRANTED; OPINION OF APRIL 29, 2016, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.

PITTMAN, J., concurs.

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

MOORE, J., dissents, with writing, which DONALDSON, J., joins.

MOORE, Judge,

dissenting.

The undisputed facts in the record show that R.C. (“the mother”), while married to M.H. (“the presumed father”), gave birth to A.C.B. (“the child”). See Ala.Code 1975, § 26-17-204(a)(l) (“A man is presumed to be the father of a child if ... he and the mother of the child are married to each other and the child is born during the marriage.”). The Talladega County Department of Human Resources (“DHR”) filed a petition in the Talladega Juvenile Court (“the juvenile court”) to terminate the parental rights of the presumed father and the mother to the child. At a hearing on the petition, the presumed father consented to the entry of a judgment terminating his parental rights. On January 17, 2014, the juvenile court entered a judgment terminating the parental rights of the presumed father and the mother and awarding DHR custody of the child. The presumed father did not timely appeal from that judgment, although he did later file petitions to modify the judgment.

Subsequently, L.R.B. (“the alleged biological father”) filed two separate complaints seeking to establish his paternity of the child and to gain custody of the child. Section 26-17-607(a), Ala.Code 1975, provides that, “[i]f the presumed father persists in his status as the legal father of a child, neither the mother nor any other individual may maintain an action to disprove paternity.” Caselaw holds that a court must afford a party contesting paternity an evidentiary hearing in order to determine whether the presumed father “persists in his status as the legal father of the child.” See J.O.J. v. R.R., 895 So.2d 386, 340 (Ala.Civ.App.2004) (instructing trial court in a case applying the holding in Ex parte Presse, 554 So.2d 406 (Ala.1989), to hold a hearing on remand to determine whether, before his death, mother’s husband “did or did not persist in his presumption of paternity”). The juvenile court conducted an evidentiary hearing. Based on the evidence presented at that hearing, the juvenile court found that the presumed father had persisted in his claim of paternity. Based on that finding, the juvenile court dismissed the complaints filed by the alleged biological father because he lacked standing. The alleged biological father now appeals.

Section 26-17-607(a) does not allow a man to contest the paternity of a presumed father who “persists in his status as the legal father of a child.” “Persist” generally means “to take a stand, stand firm,” “to go on. resolutely or stubbornly in spite of opposition, importunity, or warning,” or “to remain unchanged or fixed in a specified character, condition, or position.” Merriam-Webster’s Collegiate Dictionary 924 (11th ed.2003). A presumed father “persists” in his presumption of paternity when he actively and consistently claims his rights and performs his legal responsibilities as a legal father of a child. By definition, when a presumed father who had previously acted as a father to a child disclaims his rights as a legal father, the presumed father no longer “persists” in his status as the legal father of the child. “Once the presumed father ceases to persist in his parentage, then an action can be brought.” Alabama Comment to § 26-17-607.

Under Alabama law, the termination of parental rights does not sever the legal parent-child relationship, but it does-eliminate all rights a parent has to a child. Ex parte M.D.C., 39 So.3d 1117 (Ala.2009). Those rights include the right to association and visitation, the right to consent to the adoption of the child, the right to determine religious affiliation, the right to determine the residence of the child, and the right to educate and rear the child. Id. at 1121. Section 26-17-203, Ala.Code 1975, provides, in pertinent part, that, “[u]nless parental rights are terminated, a parent-child relationship established under [the Alabama Uniform Parentage Act] applies for all purposes....” In my opinion, the legislature intended that.a presumed father who voluntarily agrees to surrender his parental rights to a child no longer retains the right under the Alabama Uniform Parentage Act, § 26-17-101 et seq., AlaUode 1975, to “persist in his status as the legal father of the child.” § 26-17-607(a). To the contrary, a presumed father who disavows his parental rights in such a fashion necessarily “ceases to persist in his parentage.” Alabama Comment to § 26-17-607.

Section 26-17-607(a) is based on Ex parte Presse, 554 So.2d 406 (Ala.1989).

“[In Ex parte Presse, t]he supreme court held that the 1984 Alabama Uniform Parentage Act, specifically former § 26—17—6(c), Ala,Code 1975, did not grant to anyone standing to contest the paternity of a presumed father who had not disavowed his paternity but who, instead, had remained steadfastly committed to fulfilling his duties as the legal father of the child, 554 So,2d at 412-13.” ' ,

J.O.J. v. R.M., 205 So.3d 726, 734 (Ala.Civ.App.2015). (Moore, J., dissenting). Section 26-17-607 “is designed to maintain the stability of a child’s existing familial relationship with his or her presumed father.” Id. at 734. When a presumed father voluntarily waives his parental rights to his child and consents to the entry of a judgment terminating his parental rights, thereby withdrawing his presence and care from the child, none of the principled justifications underlying the holding in Ex parte Presse remain to prevent another man from maintaining an action to disprove-the paternity of the presumed-father, The paternity action would not threaten any stable custodial situation between the child and the presumed father because that custodial situation no longer exists. On the other hand, by allowing the paternity action, the: law would permit another, willing man to prove his paternity so as to provide a legal father to the child. Section 26-17-607 was not intended by the legislature to apply in the circumstances present in this case.

In this case, the juvenile court concluded that the presumed father persisted in his status as the legal father of the. child. However, the undisputed facts show that the presumed father consented to the termination of his parental rights to the child. At that point, the presumed father ceased to persist in his status as the legal father of the child and, in doing so, voluntarily agreed that he would not interfere in the further custodial disposition of the child. The presumed father did not retain any residual right to claim or to persist in his status as the legal father of the child so as to prevent the alleged biological father from pursuing a paternity action. The alleged biological father conclusively proved that the presumed father was no longer persisting in his status as the legal father of the child so that the- alleged biological father had standing to maintain the paternity and custody actions. The juvenile court erred in dismissing the complaints. Because the main opinion concludes otherwise, I respectfully dissent.

DONALDSON, J., concurs.

      . We note that, although not pertinent to the present case, § 26—17—606(b) limits the time in which to bring an action to establish a child-support obligation to during the minority of the child.


author: BRYAN, Justice. PARKER, Justice

text:
    EX PARTE L.R.B. (In re: L.R.B. v. Talladega County Department of Human Resources)
    1151096
    Supreme Court of Alabama.
    December 16, 2016
    Rachel H. Pinson, Sylacauga, for petitioner L.R.B.
    Sharon E, Fiequette, chief legal counsel, and Karen P. Phillips, asst. atty. gen., Department of Human Resources, for respondent Talladega County Department of Human Resources.
    Susan M. Haynes of Gaines, Gaines & Rasco, P.C., Talladega, guardian ad litem.
   BRYAN, Justice.

WRIT QUASHED. NO OPINION.

Stuart, Murdock, Shaw, Main, and Wise, JJ., concur.

Parker, J., concurs specially.

PARKER, Justice

(concurring specially).

I concur with the 'decision to quash 'the writ under the facts of this case because the petitioner failed to raise below the precise argument he now raises. Nonetheless, I write specially because this case presents an important issue: Whether a presumed father persists in his status as the legal father of a child after he consents to the termination of his parental rights.

The child’s mother was married to M.H. when , the child was bom. However, while M.H. was in prison, the mother had a relationship with L.R.B. Shortly after the child was born, both the mother and M.H. consented to the termination of their parental rights, and the child was placed in the custody of the State Department of Human Resources. Thereafter, L.R.B. filed a “custody-modification petition” asking the court to order genetic testing to establish his paternity as to the child. L.R.B. argued that, upon termination of M.H.’s parental rights, M.H. no longer persisted in his status as the child’s father and that L.R.B. should be allowed to establish his paternity. The juvenile court held an evidentiary hearing and found that M.H. “persisted in his status as the child’s father” despite the fact that he had consented to the termination of his parental rights and, thus, that L.R.B. lacked standing to bring a paternity action. The Court of Civil Appeals affirmed the juvenile court’s judgment.

Under the Alabama Uniform Parentage Act (“the AUPA”),.“[a] man is presumed to be the father of a child if ... he and the mother of the child are married to each other and the child is born during the marriage.” § 26-17-204(a)(l), Ala. Code 1975. This Court has stated that no other man has standing to bring an action seeking to have himself declared the father of a child

“as long as there is a presumed father, pursuant to § 26-17-5(a)(l),[] who has not disclaimed his status as the child’s father; consequently, another man, though he later marries the mother and lives with the mother and child, has no standing to challenge the presumed paternity of that child. Put another way, so long as the presumed father persists in maintaining his paternal status, not even the subsequent marriage of the child’s mother to another man can create standing in the other man to challenge the presumed father’s parental relationship.”

Ex parte Presse, 554 So.2d 406, 418 (Ala. 1989); § 26-17-607(a), Ala. Code 1975 (“If the presumed father persists in his status as the legal father of a child, neither the mother nor any other individual may maintain an action to disprove paternity.”). •

The Alabama Comment to § 26-17-607 indicates that “[sjubsection (a) follows Ex parte Presse, 554 So.2d 406 (Ala. 1989)[,] and its progeny that favor maintaining the integrity of the family unit and the father-child relationship that was developed therein.” This Court similarly recognized in Ex parte Presse, 554 So.2d at 412, that the AUPA “espouses principles that seek to protect the sanctity of family relationships.” Justice Murdock discussed the common-law principles behind the presumption of paternity in his dissent in Ex parte T.J., 89 So.3d 744, 753 (Ala. 2012):

“The long-standing recognition of ‘presumed fathers’ in our law finds its origins in time-honored, common-law principles reflecting traditional values and concerns relating to adultery, the integrity of the family, and protection for both the father and the child in established father-child relationships. Accordingly, our law not only adheres to the general rule that a child with a ‘presumed father’ may not be declared illegitimate by our courts, it protects both children and de facto fathers in preserving established parent-child relationships.”

The United States Supreme Court recognized that one purpose behind the strong presumption of paternity under the common law is “the interest in promoting the ‘peace and tranquillity of States and families,’ ... a goal that is obviously impaired by facilitating suits against husband and wife asserting that their children are illegitimate.” Michael H. v. Gerald D., 491 U.S. 110, 125, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989) (citing J. Schouler, Law of the Domestic Relations § 225, p. 304 (3d ed. 1882), and Boullenois, Traité des Status, bk. 1, p. 62).

In this case, the policy rationales underlying the presumption of paternity are not applicable. The presumed father in this ease consented to the termination of his parental rights, and there is no evidence indicating that he ever maintained any familial relationship with the child. The policy rationale behind preventing alleged biological fathers from asserting paternity as against presumed fathers is to protect the sanctity of family relationships. That goal is not achieved by forbidding an alleged biological father from establishing a relationship with a child whose presumed father has consented to having his rights to parent the child terminated.

Judge Moore, in his dissent below recognized as much:

“When a presumed father voluntarily waives his parental rights to his child and consents to the entry of a judgment terminating his parental rights, thereby withdrawing his presence and care from the child, none of the principled justifications underlying the holding in Ex parte Presse remain to prevent another man from maintaining an action to disprove the paternity of the presumed father. The paternity action would not threaten any stable custodial situation between the child and the presumed father because that custodial situation no longer exists. On the other hand, by allowing the paternity action, the law would permit another, willing man to prove his paternity so as to provide a legal father to the child. Section 26-17-607 was not intended by the legislature to apply in the circumstances present in this case.”

L.R.B. v. Talladega Cty. Dep’t of Human Res., 223 So. 3d 923, 928-29 (Ala. Civ. App. 2016) (Moore, J., dissenting). I agree with Judge Moore’s reasoning and would similarly find the policy rationale behind § 26-17-607 inapplicable under these facts. I would find that a presumed father who consents to the termination of his parental rights is no longer persisting in his status as the legal father of a child.

      , Now codified at § 26-17-204(a)(l).


author: THOMAS, Judge.

text:
    EX PARTE TIDRA CORPORATION. (In re Dwayne Johnson v. Tidra Corporation).
    2150940
    Court of Civil Appeals of Alabama.
    October 7, 2016

      Robert C. Thomas, Jr., of Smith, Tyra, Thomas & Haggard, LLC, Alabaster, for petitioner.
    Dwayne Johnson, pro sé;
   THOMAS, Judge.

On August 25, 2016, Tidra Corporation filed in this court a petition for the writ of mandamus seeking an order compelling the Lee Circuit Court (“the trial court”) to set aside its July 15, 2016, order granting Dwayne Johnson’s motion to compel medical treatment and ordering that Johnson undergo a mental examination pursuant to Rule 35(a), Ala. R. Civ. P. We called for an answer to- the petition, which Johnson has filed. On Tidra’s motion, this court stayed enforcement of the July 15, 2016, order pending the resolution of the petition. Based on our review of the materials provided by the parties in support of and in opposition to the petition and the applicable law, we grant the petition.

The materials properly before this court reveal that Johnson alleges that he was injured in June 2012. According to Johnson, his injury resulted from an accident that occurred while he was driving a forklift at his place of employment. After the accident, he ■ complained of neck pain and was seen Dr. Nick Vlachos. Dr. Vlachos diagnosed Johnson with a cervical strain, prescribed a .narcotic pain reliever and a muscle relaxer, and referred Johnson to physical therapy. Johnson did not comply with the physical therapist’s recommendations, however, and he was discharged from physical therapy and from Dr. Ylac-hos’s care on July 10,2012.

In September 2012, Johnson filed a complaint in the trial court seeking workers’ compensation benefits and medical treatment for his alleged work-related injury. Johnson named ITP Global Services, Inc., and three fictitiously named parties as defendants. Tidra was later substituted as a defendant. A question arose regarding which of several entities employed Johnson in June 2012. In May 2015 the trial court determined that Johnson had been employed by Tidra at the time of the alleged work-related injury.

In February 2016, Johnson, who was then acting pro se, filed a motion seeking a hearing on the question whether Tidra should be required to provide, as medical treatment, eight sessions of physical therapy recommended by Dr. Martin Jones. Johnson attached several medical records, including records from West Georgia Health, West Georgia Worx, Emory Southern Orthopedics, and Dr. Jones, to his motion. Tidra responded to Johnson’s motion on March 11, 2016, objecting to what Tidra characterized as a motion to compel medical treatment. Tidra attached to its response and objection, among other things, a copy of a letter from its workers’ compensation carrier requesting clarification of Dr. Jones’s recommendation, that Johnson undergo physical therapy. Dr. Jones had indicated in response to the letter that- the physical therapy he had recommended was not related to Johnson’s 2012 injury. Johnson filed a second motion, which he specifically characterized as a motion to compel medical treatment, on July 8, 2016. The July 2016 motion included an additional medical record from Southern Rehab and Sports Medicine and set out some of the procedural history of the action.

The trial court held oral argument on Johnson’s motions on July 13, 2016. No oral testimony was taken. During that hearing, at which Johnson appeared pro se, the trial court indicated that the action was set for a trial in the near future and that the issues' whether the injury was compensable and whether any recommended treatment was medically necessary would be decided at the upcoming trial. The trial court stated on the record that it intended to deny Johnson’s motions.

However, on July 15, 2016, the trial court entered an order stating, in pertinent part: “Upon review of [Johnson’s] medical records, the court is of the opinion that said motion to compel physical therapy is granted. Furthermore, pursuant Rule 35 of the Alabama Rules of Civil Procedure [Johnson] is to submit to a mental evaluation.” Tidra filed a motion seeking reconsideration of the trial court’s July 15, 2016, order, which the trial court had not yet ruled upon when Tidra filed this petition for the writ of mandamus.

“A writ of mandamus is an extraordinary remedy, and it will be issued only when there is:
“ ““ “!)■ a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 8) the lack of another adequate remedy; and 4) properly invoked, jurisdiction of the court.” Ex parte United Service Stations, Inc., 628 So.2d 501, 503 (Ala. 1993). A writ of mandamus will issue only in situations where other relief is unavailable or is inadequate, and it cannot be used as a substitute for appeal. Ex parte Drill Parts & Serv. Co., 590 So.2d 252 (Ala. 1991).’ ” ’
“Ex parte Fort James Operating Co., 905 So.2d 836, 842 (Ala. Civ. App. 2004) (quoting Ex parte Wilson, 854 So.2d 1106, 1108-09 (Ala. 2002), quoting in turn Ex parte [Empire] Fire & Marine Ins. Co., 720 So.2d 893, 894 (Ala. 1998)).”

Ex parte Publix Super Markets, Inc., 963 So.2d 654, 657 (Ala. Civ. App. 2007).

Tidra first argues that the trial court erred by ordering Johnson to undergo a mental examination under Rule 35(a), Ala. R. Civ. P., when neither party had requested such relief and the record did not demonstrate good cause for- such an order. Rule 35(a) provides:

“When the- mental or physical condition (including the blood- group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is'pending may order the party to submit to a -physical or mental examination by a suitably licensed or certified examiner or to produce for examination the person in the party’s custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.”

(Emphasis added.)

In order to determine whether Rule 35(a) permitted the trial court’s sua sponte order requiring Johnson to undergo a mental examination, we must examine the language of the rule. We apply the principles applicable to statutory construction in construing our rules of civil procedure. Greener v. Killough, 1 So.3d 93, 102 (Ala. Civ. App. 2008). Thus, when we are examining a rule, “ ‘ “[w]ords in [that rule] must be given their natural, plain, ordinary, and commonly understood meaning.”’” Greener, 1 So.3d at 102 (quoting Blue Cross & Blue Shield of Alabama, Inc. v. Nielsen, 714 So.2d 293, 296 (Ala. 1998), quoting in turn IMED Corp. v. Systems Eng'g Assocs. Corp., 602 So.2d 344, 346 (Ala. 1992)). Furthermore, we presume that the drafters of the rule, like the legislature when drafting a statute, know “how to draft a [rule] to reach [a particular] end.” Ex parte Jackson, 614 So.2d 405, 407 (Ala. 1993); see also Davis Plumbing Co. v. Burns, 967 So.2d 94 (Ala. Civ. App. 2007).

Rule 35(a) states that a trial court may order a mental examination of a party “only on motion.” The word “only” is defined as “solely, exclusively.” Merriam-Webster’s Collegiate Dictionary 867 (11th ed. 2003). Thus, Rule 35(a) itself specifies that a trial court may enter an order requiring a party to undergo a mental examination “[solely or exclusively] on motion” before the court. In contrast, Rules 11.2(a) and 11.2(b), Ala. R. Crim. P., permit a trial court to order a criminal defendant to undergo a mental examination on the court’s own motion in order to evaluate the defendant’s mental condition at the time of trial or at the time of the offense. The drafters of our rules of procedure obviously know how to draft a rule to permit a trial court to act on its own motion. Had the drafters of Rule 35(a) intended that a trial court have the ability to order such relief on its own motion, they could have, as they did in Rules 11.2(a) and 11.2(b), Ala. R. Crim. P., so stated. Thus, we conclude that the fact that Rule 35(a) does not permit a trial court to act on its own motion indicates that the drafters of the rule intended that a court have the power to order a mental examination in a civil action only upon motion of a party.

No motion requesting a mental examination of Johnson was pending in the trial court. Rule 35(a) clearly conditions the trial court’s ability to enter an order requiring a party to undergo a mental examination on a motion seeking such relief. Tidra has demonstrated that the trial court acted outside its authority in entering sua sponte an order requiring Johnson to undergo a mental examination. Accordingly, Tidra is entitled to the relief it seeks regarding that portion of the trial court’s July 15, 2016, order requiring Johnson to undergo a mental examination.

Tidra next challenges the trial court’s July 15, 2016, order insofar as it requires Tidra to provide medical treatment to Johnson because, Tidra contends, the trial court erred by failing to hold a trial on the issue of compensability before requiring that Tidra provide physical therapy to Johnson. Tidra relies on this court’s opinion in Ex parte Publix Super’Markets to support its argument that the trial court erred in ordering that it provide medical treatment to Johnson without first holding an evidentiary hearing on the issue of com-pensability. In Ex parte Publix Super Markets, this court explained that a trial court may not compel an employer to pay for medical treatment for an employee without first holding an evidentiary hearing on the issue of compensability or utilizing either Rule 12(c), Ala. R. Civ. P. (authorizing a judgment on the pleadings), or Rule 56, Ala. R. Civ. P. (authorizing a summary judgment), to determine the issue of com-pensability without a trial. Ex parte Publix Super Markets, 963 So.2d at 659.

We first note that Ala. Code 1975, § 25-5-77(a), provides that a circuit court having jurisdiction over a workers’ compensation claim may decide controversies relating to the necessity of medical treatment arising under the Workers’ Compensation Act, Ala. Code 1975, § 25-5-1 et seq. Furthermore, as we explained in Ex parte Publix Super Markets, 963 So.2d at 659, Ala. Code 1975, § 25-5-88, provides that a circuit court deciding such controversies “ ‘shall hear such witnesses as may be presented by each party, and in a summary manner without a jury .., shall decide the controversy.’ ” Thus, we held in Ex parte Publix Super Markets that the Workers’ Compensation Act requires that a trial court must generally resolve a dispute between an employer and an employee regarding the necessity of medical treatment by holding an evidentiary hearing. Id.

Tidra has supplied this court with the transcript of the July 13, 2016, hearing before the trial court. The transcript, reflects that the trial court held oral argument on Johnson’s motions. No witnesses were sworn in, no testimony was taken, no stipulations were entered on the record, and the matter was not submitted to the trial court for decision solely upon the documentary evidence appended to the parties’ various filings. Thus,, the trial court did not hold an evidentiary hearing on the issue of compensability.

■ However, that is not the end of our inquiry. Ex parte Publix Super Markets does not prohibit a trial court from granting a pretrial motion seeking a judgment on the issue of compensability. However, because the Rules of Civil Procedure apply to workers’ compensation actions to the extent that the- Workers’ Compensation Act does not prescribe another procedure, we explained in Ex parte Publix Super Markets that a motion seeking to compel an employer to provide medical treatment could be granted only to the extent that it is a properly supported motion for a judgment on the pleadings or for a summary judgment. Id.

Johnson’s February 2016 motion lists the medical providers he had seen and the treatments he had been prescribed since his 2012 injury. In his July 2016 motion, Johnson includes further details about the history of the action and explains in more detail certain .statements contained in the medical records. The main basis for Johnson’s motions seeking to compel Tidra to provide medical treatment is that Dr. Jones had stated in his treatment notes that “we will try to get [Johnson] eight sessions of physical therapy and see if it helps.”

Tidra’s submissions in support of its petition for the writ of mandamus indicate that Tidra had challenged in its answer and in other pleadings and motions whether Johnson had suffered a work-related injury, whether any of his current symptoms were related to the 2012 accident, and whether he was entitled to further medical treatment or other benefits. Furthermore, in its response and objection to Johnson’s February 2016 motion, Tidra specifically challenged whether the physical-therapy sessions recommended by Dr. Jones were, in fact, reasonable and necessary for .the treatment of Johnson’s 2012 injury. Tidra explained in its response, and provided documentation indicating, that Dr. Jones had clarified that his recommendation that Johnson undergo physical therapy was not related to Johnson’s 2012 injury. -

Based on the information before this court, it appears that the trial court in the present case, like the trial court in Ex parte Publix Super Markets, did not rely on either Rule 12(c) or Rule 66 to decide that Tidra should be compelled to provide physical therapy for Johnson. As we explained in Ex parte Publix Super Markets, “[a] trial court may enter a judgment on [the pleadings pursuant to Rule 12(e)] when the allegations in the complaint and the averments in the answer show that no genuine issue of material fact exists and that, the movant is entitled to a judgment as a matter of law.” Ex parte Publix Super Markets, 963 So.2d at 659. Similarly, “[a] trial court may enter a [summary] judgment .., when the pleadings and other evidentiary material show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law.” Id. (citing Rule 56(c)(3), Ala. R. Civ. P.). We further note that Rule 12(c) provides that “[i]f, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56.” Clearly, because the parties included materials outside the pleadings as attachments to their respective filings before the trial court, Johnson’s motions could necessarily be treated only as motions seeking a partial summary judgment.

As we noted in Ex Parte Publix Super Markets, a motion for a summary judgment must meet certain procedural requirements. Ex parte Publix Super Markets, 963 So.2d at 660. Among those requirements is that the motion should contain, or be accompanied by, “a narrative summary of what the movant contends to be the undisputed material facts.” Rule 56(c)(1). We are not convinced that either of Johnson’s motions are truly motions for a summary judgment. In our opinion, neither motion contains a narrative summary, because, for example, neither motion discusses the factual underpinnings of the action, explains the mode of injury, or describes the accident giving rise to Johnson’s claims. If Johnson’s motions were not motions for a summary judgment, the trial court could not have properly granted a pretrial judgment in Johnson’s favor.

However, even if we were to generously construe Johnson’s motions as motions for a partial summary judgment on the issue of the reasonable necessity of his request for physical therapy, we conclude that Ti-dra is entitled to the writ of mandamus it seeks. The materials before this court demonstrate that a dispute exists between Tidra and Johnson relating to whether he is currently entitled to physical therapy as a result of his June 2012 injury. Although Johnson provided Dr. Jones’s treatment note indicating that he had recommended physical therapy for Johnson, Tidra presented competing evidence indicating that Dr. Jones had concluded that Johnson’s need for physical therapy had not arisen from the 2012 injury and was instead related to current, unrelated complaints. Thus, Johnson failed to demonstrate a lack of a genuine issue of material fact or that he was entitled to a judgment as a matter of law, see Rule 56(c)(3), and the trial court, if it considered Johnson’s motions to be motions seeking a partial summary judgment, erred in granting those motions.

As we stated in Ex parte Publix Super Markets:

“While the law encourages employers to provide medical benefits voluntarily, see Rule 409, Ala. R. Evid., nothing in the law requires employers to furnish medical benefits to an employee based on the mere allegation that the employee requires medical treatment because of a work-related injury. The employee bears the burden of proving each and every fact prerequisite to a recovery of medical expenses, including the essential threshold fact that he or she sustained a work-related injury that necessitated the medical or surgical treatment obtained. Boyd [v. M. Kimerling & Sons, Inc., 628 So.2d 711 (Ala. Civ. App. 1993) ]. Section 25-5-88, Ala. Code 1975, requires circuit courts to expedite the trial and determination of workers’ compensation cases, but the legislature has not endorsed any procedure that would abrogate the employee’s burden of proof for the sake of expediency.”

963 So.2d at 661.

Tidra has demonstrated that it is entitled to the writ of mandamus it seeks. Neither party filed a motion seeking a mental examination, and the trial court lacked the authority under Rule 35(a) to order a mental examination sua sponte. Furthermore, Johnson’s motions seeking an order compelling Tidra to provide him physical therapy, even if generously construed as motions for a partial summary judgment, should not have been granted. The trial court is instructed to set aside its July 2016 order in its entirety.

PETITION GRANTED; WRIT ISSUED.

Pittman and Moore, JJ., concur.

Thompson, P.J., and Donaldson, J., concur in the result, without writings.

      . Johnson’s answer is supported by various medical records and other materials, some of which do not indicate that they were filed in, or otherwise presented to, the trial court. “It is well settled that, 'in a mandamus proceeding, this Court will not consider evidence not presented to the trial court.’ ” Ex parte Bast Alabama Med. Ctr., 109 So.3d 1114, 1117 (Ala. 2012) (quoting Ex parte Cincinnati Ins. Co., 51 So.3d 298, 310 (Ala. 2010)). Thus, we have not considered those materials that bear no indica that they were before the trial court.

      . Because the trial court’s July 15/ 2016, order was an interlocutory order, Tidra’s motion was not a postjudgment motion. See Ex parte Troutman Sanders, LLP, 866 So.2d 547, 550 (Ala. 2003). It is well settled that a motion seeking reconsideration of an interlocutory order does not toll the time for seeking a writ of mandamus, and Tidra properly sought mandamus relief by timely filing its petition •despite the. pendency of its motion to reconsider the trial court’s July 15, 2016, order. Id.

      . We note that the trial court ordered that Johnson undergo a "mental evaluation”; however, because Rule 35(a) refers to a “mental examination,” we will use that term in the remainder of this opinion.


author: THOMPSON, Presiding Judge.

text:
    Tina WYNN v. Deshante STEGER.
    2150789
    Court of Civil Appeals of Alabama.
    October 28, 2016
    Marcus Helstowski of McDaniel & McDaniel, L.L.C., Huntsville, for appellant.
    Submitted on appellant’s brief only.
   THOMPSON, Presiding Judge.

On December 15, 2015, Deslíante Steger (“the mother”) filed a petition in the Madison Circuit Court (“the trial court”) seeking to modify custody of her two minor children (“the children”). The record indicates that, approximately five years earlier, the mother had agreed to transfer custody of the children to the children’s maternal grandmother, Tina Wynn (“the maternal grandmother”). Testimony in the record indicates that, approximately two years before the current action was tried, the trial court had presided over a modification action and that, as a result of that action, the maternal grandmother had maintained custody of the children. Although neither of the two previous custody judgments are contained in the record on appeal, it is undisputed that the maternal grandmother has had physical custody of the children for approximately five years and that the mother has had visitation with the children. In one of her filings, the mother alleged that the parties had “joint custody.” In a postjudgment motion, the maternal grandmother represented that she has had physical and legal custody of the children. We conclude that the record as a whole demonstrates that, even assuming that the parties shared joint legal custody, the maternal grandmother has had physical custody of the children and the mother has had rights of visitation. See Griffin v. Griffin, 159 So.3d 67, 69-70 (Ala. Civ. App. 2014) (determining that the evidence indicated that the previous custody judgment, which was not contained in the record on appeal, had awarded the mother “primary physical custody” of the parties’ child); and McCormick v. Ethridge, 15 So.3d 524, 526-27 (Ala. Civ. App. 2008) (where the previous custody judgment was not contained in the record on appeal, concluding that the evidence indicated that previous judgment had awarded the father “primary physical custody” of the parties’ child).

The trial court conducted an ore tenus custody hearing on the mother’s modification petition. On June 1, 2016, the trial court entered a judgment granting that petition and awarding custody of the children to the mother. On June 3, 2016, the maternal grandmother, proceeding pro se, filed a postjudgment motion in which she argued, in essence, that the evidence did not support the trial court’s judgment. The trial court denied that motion on June 9, 2016.

Shortly after the June 9, 2016, denial of the maternal grandmother’s June 1, 2016, postjudgment motion, the mother filed a motion asking the trial court to issue an order allowing her to pick up the children; in that motion, the mother alleged that the maternal grandmother had not allowed her to do so. On June 13, 2016, the trial court entered an order requiring the maternal grandmother to coordinate a transfer of custody of the children within seven days of the entry of that order, and it provided that the maternal grandmother would be held in contempt if she failed to comply with that order.

On. June 15, 2016, the maternal grandmother, proceeding with counsel, filed another postjudgment motion in which she argued that the trial court had applied an incorrect custody-modification standard. We note that the maternal grandmother’s June 15, 2016; postjudgment motion was filed within 30 days of the entry of the June 1, 2016, judgment and raised arguments different from those asserted in the maternal grandmother’s initial post-judgment motion. Accordingly, that post-judgment motion did not constitute an impermissible successive postjudgment motion. Instead, because that post-judgment motion contained “grounds different from or additional to the grounds asserted in a previous postjudgment motion,” it was a valid postjudgment motion that would operate to extend the 90-day period in which a trial court may consider a postjudgment motion. Curry v. Curry, 962 So.2d 261, 264 (Ala. Civ. App. 2007) (emphasis omitted). See also Goodyear Tire & Rubber Co. v. Haygood, 93 So.3d 132, 140 (Ala. Civ. App. 2012) (“[A] second postjudgment motion is not to be. precluded from the trial court’s consideration merely because a party already has filed one postjudgment motion. The trial court must look to the substance of the motion to see whether it constitutes an ‘amendment’ to the first postjudgment motion.”); and Roden v. Roden, 937 So.2d 83, 85 (Ala. Civ. App. 2006) (“Rule 59.1 has been held to apply separately to each distinct timely filed postjudgment motion so as to afford the trial court a full 90-day period to rule on each separate motion (see Spina v. Causey, 403 So.2d 199, 201 (Ala. 1981)).”). The trial court denied the maternal grandmother’s" June 15, 2016, postjudgment motion, and the maternal grandmother timely appealed on June 20, 2016.

Also on June 20, 2016, the mother filed another motion seeking to enforce the transfer of custody of the children; in that motion,- she alleged that the maternal grandmother had again refused to transfer custody to her. The trial court entered an order scheduling a hearing and ordering the maternal grandmother to appear with the children to show cause why she should’ not be held in contempt. The maternal grandmother transferred custody of the children to the mother, and the trial court entered an order continuing the contempt hearing. On June 27, 2016, the maternal grandmother filed an emergency motion seeking a new trial, arguing. that, after custody had been transferred to the mother, the mother had been arrested for felony possession of a controlled substance. After conducting a hearing, on August 14, 2016, the trial court entered an order in which it found that the maternal grandmother had willfully refused to comply with its earlier orders, and it ordered the maternal grandmother to pay the mother $300 to reimburse the mother for the costs of traveling to the maternal grandmother’s home twice in unsuccessful attempts to transfer custody of the children. The trial court also entered a separate order that denied the maternal grandmother’s June 27,2016, motion.

On appeal, the maternal grandmother raises two arguments pertaining to the trial court’s August 14, 2016, order. However, the maternal grandmother did not appeal that order, and, therefore, this court has nothing to review. C.D.S. v. K.S.S., 963 So.2d 125, 131 (Ala. Civ. App. 2007) (“[T]he father’s failure to timely file a notice of appeal from the circuit court’s ... judgment finding him in contempt deprives this court of jurisdiction to review that contempt judgment.”). We dismiss that part of the maternal grandmother’s appeal that purports to be taken from the August 14, 2016, order.

The maternal grandmother also argues that, in entering its June 1, 2016, custody judgment, the trial court applied an incorrect custody-modification standard. As the maternal grandmother correctly points out, the record establishes that the mother had agreed to relinquish custody of the children to the maternal grandmother approximately five years before the ore tenus hearing in this action.

“In a custody dispute between a parent and a nonparent, the parent has a prima facie right to. custody over the nonparent. Ex parte Terry, 494 So.2d 628 (Ala. 1986). This, .presumption does not apply, however, in a case in which the parent voluntarily forfeits his or her right to custody to a nonparent ..., ”

Ex parte G.C., 924 So.2d 651, 656 (Ala. 2005). When a parent has relinquished custody of a child to a nonparent, .in order to regain custody, the parent must meet the custody standard set forth in Ex parte McLendon, 455 So.2d 863 (Ala. 1984). Ex parte C.G., 924 So.2d at 659; T.L.L. v. T.F.L., 580 So. 2d 1359, 1361 (Ala. Civ. App. 1991). Our supreme court has held:

“It is not enough that the parent show that she has remarried, reformed her lifestyle, and improved her financial position. Carter v. Harbin, 279 Ala. 237, 184 So.2d 145 (1966); Abel v. Hadder, 404 So.2d 64 (Ala. Civ. App. 1981). The parent seeking the custody change must show not only-that she is fit, but also that the change of custody ’materially promotes’ the child’s best interest and welfare.”

Ex parte McLendon, 455 So.2d at 866. See also K.U. v. J.C., 196 So.3d 265, 271 (Ala. Civ. App. 2015) (holding that when a parent has agreed to transfer custody to a nonparent, “Ex parte McLendon .plainly provides that, even if the petitioning parent proves his or her fitness, the burden still remains on the parent to prove that the change of custody will ‘materially promote’ the welfare of the child”); McGinnis v. McGinnis, 567 So.2d 390, 392 (Ala. Civ. App. 1990) (mother had voluntarily relinquished custody by leaving children in the care of their grandparents for two years, and, therefore, she was required to meet the McLendon standard in order to regain custody).

In its judgment, the trial court did not set forth the standard it applied in reaching its custody decision. However, ■ during the postjudgment hearing, the trial court repeatedly stated that it had determined that the change in custody would serve the children’s best interests. See Ex parte Door Components, LLC, 171 So.3d 18, 21 (Ala. Civ. App. 2014) (using comments made.by the trial court during a hearing to. interpret the judgment). It is clear from the evidence that the mother had relinquished custody of the children to the maternal grandmother. Accordingly, in order to regain custody of the children, she was required to meet the McLendon standard. The. trial court erred in modifying custody based on the “best interests of the child” standard. We. therefore reverse the trial court’s June 1, 2016, judgment and remand the cause for the trial court to reconsider the action and to apply the correct custody-modification standard.

APPEAL DISMISSED IN PART; REVERSED AND REMANDED.

Pittman and Donaldson, JJ., concur.

Thomas and Moore, JJ., concur in the • result, without writings.