author: DONALDSON, Judge.

text:
    EX PARTE Charissa A. SMALLS
    (In re: Wells Fargo Bank, N.A. v. Lloyd Harper, Charissa A. Harper (Smalls), and Jaylan Gopher)
    2160234
    Court of Civil Appeals of Alabama.
    May 5, 2017 Rehearing Denied July 21, 2017
    Charissa A. Smalls, pro se.
    D. Keith Andress and Catherine Crosby Long of Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., Birmingham, for respondent.
   DONALDSON, Judge.

Charissa A. Smalls petitions this court for a writ of mandamus directing the Madison Circuit Court ("the trial court") to grant her motion to dismiss this action and to set aside the order transferring this action from one judge to another judge in the trial court. Mandamus relief is not available to Smalls because she seeks dismissal of the action on a ground not raised in the trial court. Further, the trial court has not ruled on Smalls's motion to dismiss or on her objection to the transfer order. Accordingly, we deny the petition.

In 1998, Smalls and Lloyd Harper, who were married at the time, purchased real property in Madison County ("the property"). The purchase was financed by a promissory note that was secured by a mortgage on the property. In 2006, Smalls and Harper divorced, and, pursuant to an agreement, Harper conveyed all of his interest in the property to Smalls. The property was the subject of another action before the trial court in case number CV-09-1669 ("the foreclosure action"). In that action, Wells Fargo Bank, N.A. ("Wells Fargo"), sought a judicial-foreclosure sale of the property, and Smalls contested Wells Fargo's right to foreclose. Smalls has appealed judgments entered by the trial court in the foreclosure action twice. Smalls v. Wells Fargo Bank, N.A., 180 So.3d 910 (Ala. Civ. App. 2015) (" Smalls I") (reversing in part and remanding the cause); and Smalls v. Wells Fargo, (No. 2150308, August 19, 2016), 231 So.3d 285 (Ala. Civ. App. 2016) ("Smalls II") (table) (affirming without publishing an opinion). On October 17, 2016, Charissa Smalls and Eugene Smalls filed a petition for a writ of certiorari in the Alabama Supreme Court seeking review of our decision in Smalls II. That petition remains pending.

On June 9, 2016, while the foreclosure action remained on appeal, Wells Fargo initiated the present action by filing a complaint in the trial court against Charissa Smalls alleging a claim in the nature of ejectment pursuant to § 6-6-280, Ala. Code 1975. In the complaint, Wells Fargo alleged that it had conducted a foreclosure sale on March 14, 2016, and had purchased the property. On July 1, 2016, Charissa Smalls filed an answer. In an amended answer, Smalls alleged many of the claims she had alleged in the foreclosure action as counterclaims in the present action.

On October 17, 2016, Smalls filed a motion to continue the present action and a motion to stay the issuance of a confirmation order in the foreclosure action on the basis of the pending petition for a writ of certiorari regarding our decision in Smalls II in the foreclosure action. On October 25, 2016, Smalls filed a motion to dismiss Lloyd Harper and Jaylan Gopher as parties, asserting that they lacked an interest in the property. On November 8, 2016, Smalls filed a motion to compel discovery. On November 30, 2016, Smalls filed a "Motion to Dismiss with Prejudice," arguing that Wells Fargo had failed to state a claim upon which relief can be granted, that Wells Fargo was not a real party in interest that has standing to enforce the promissory note or to foreclose on the property, and that the pending petition for a writ of certiorari precludes the present action from being heard on its merits. In support of the motion, Smalls submitted exhibits, including affidavits and copies of the mortgage, the promissory note, and an assignment of the mortgage and promissory note to Wells Fargo.

On December 13, 2016, the trial court entered an order transferring the present case from Judge Chris Comer, who was originally assigned the case, to Judge Dennis O'Dell, who presided over the foreclosure action. On December 19, 2016, Smalls filed an objection to the transfer order reassigning the case. In the objection, Smalls argued, in part, that the trial court lacked jurisdiction to enter the transfer order, asserting that the Alabama Supreme Court had jurisdiction over the present action because of the pending petition for a writ of certiorari in the foreclosure action. The materials before this court do not contain any orders from the trial court ruling on Smalls's motions and objection that were filed in the present action.

On January 10, 2017, Smalls filed a notice of appeal to this court. We transferred the appeal to the supreme court for lack of jurisdiction. The supreme court then transferred the appeal to this court pursuant to § 12-2-7(6), Ala. Code 1975. This court asked the parties to brief whether the appeal was taken from a final judgment. After determining that the appeal was from a nonfinal order, this court entered an order notifying the parties that the notice of appeal would be treated as a petition for a writ of mandamus. See Ex parte K.S., 71 So.3d 712, 715 (Ala. Civ. App. 2011) ("Although we have concluded that the [party's] appeal was from a nonfinal judgment, this court has the discretion to treat an appeal from an interlocutory order as a petition for a writ of mandamus.").

" ' "[M]andamus is a drastic and extraordinary writ that will be issued only when there is: (1) 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; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court." ' "

Ex parte Glassmeyer, 204 So.3d 906, 908 (Ala. Civ. App. 2016) (quoting Ex parte Massengill, 175 So.3d 175, 178 (Ala. Civ. App. 2015), quoting in turn Ex parte Horton, 711 So.2d 979, 983 (Ala. 1998) ).

"A writ of mandamus will not issue to compel the respondent to act when the respondent has not refused to do so." Ex parte CUNA Mut. Ins. Soc'y, 822 So.2d 379, 384 (Ala. 2001).

"Moreover, this court will not issue a writ of mandamus to compel a trial court to perform an act that the trial court was never requested to perform. See Wood v. City of Birmingham, 247 Ala. 15, 19, 22 So.2d 331, 334 (1945) (holding that, when there was no attempt in a motion to set aside that part of a decree that was final, mandamus would not issue to review the action of the lower court in rendering its final decree, since mandamus will not issue to compel the court to do anything that it has not been asked to do). Finally, '[t]his Court cannot put a trial court in error for failing to consider evidence or accept arguments that, according to the record, were not presented to it.' Gotlieb v. Collat, 567 So.2d 1302, 1304 (Ala. 1990)."

Ex parte City of Prattville, 56 So.3d 684, 689-90 (Ala. Civ. App. 2010).

In her petition, Smalls contends that this case should be dismissed with prejudice and that the trial court lacked jurisdiction to enter a transfer order. She argues that Wells Fargo has failed to state a claim, that Wells Fargo was not the real party in interest with standing to conduct a foreclosure of the property, and that the trial court lacks subject-matter jurisdiction in the present action because of the pending petition for a writ of certiorari in the foreclosure action. She also attacks the evidentiary basis of Wells Fargo's ejectment claim, reiterating many of her arguments against Wells Fargo's right to foreclose on the property that she made in Smalls I and Smalls II. Before this court, Wells Fargo agrees that the present action should be dismissed, not based on those arguments advanced by Smalls in the trial court and before this court but, instead, because Wells Fargo asserts it is prosecuting two actions with the same claims and parties in contravention of § 6-5-540, Ala. Code 1975. Neither party has presented that argument to the trial court. Moreover, the trial court has not ruled on Smalls's motion to dismiss or her objection to the transfer order, and there is no indication in the materials before us that the trial court has refused to do so. We therefore deny Smalls's petition seeking an order directing the trial court to grant her motion to dismiss and to set aside the transfer order. See Ex parte City of Prattville, supra ; Ex parte Green, 108 So.3d 1010, 1013 (Ala. 2012) (holding that an argument regarding the propriety of transferring a case could not be presented for the first time in a petition for a writ of mandamus); State v. Reynolds, 887 So.2d 848, 851-52 (Ala. 2004) ("This Court will not ... issue a writ of mandamus commanding a trial judge to rescind an order, based upon a ground asserted in the petition for the writ of mandamus that was not asserted to the trial judge, regardless of the merits of a petitioner's position in the underlying controversy."); Ex parte CUNA Mut. Ins. Soc'y, supra.

For the foregoing reasons, we deny Smalls's petition for a writ of mandamus.

Smalls's request for costs and expenses is denied.

PETITION DENIED.

Thompson, P.J., and Moore, J., concur.

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

Pittman, J., recuses himself.

      Eugene C. Smalls and Charissa Smalls are a married couple. Although they appear to have jointly filed briefs in support of this petition, Eugene has not been added as a party to the action before the trial court. Accordingly, we refer to only Charissa Smalls as the petitioner.

      Lloyd Harper and Jaylan Gopher were also named as defendants. In the materials before this court, Charissa Smalls claims that her son, Gopher, has been house-sitting the property.

      Eugene Smalls filed the answer, as well as motions and other filings in the trial court, jointly with Charissa Smalls. Wells Fargo did not name Eugene Smalls in its complaint, and the record does not indicate that he was added as a party. We therefore refer to only Charissa Smalls as the party filing the answer and the motions and other filings in the trial court.

      This court has taken judicial notice of the records from Smalls I and Smalls II. See City of Mobile v. Mathews, 220 So.3d 1061 (Ala. Civ. App. 2016) ("[A] court may take judicial notice of its own records.").

      Section 6-5-440 provides:
      "No plaintiff is entitled to prosecute two actions in the courts of this state at the same time for the same cause and against the same party. In such a case, the defendant may require the plaintiff to elect which he will prosecute, if commenced simultaneously, and the pendency of the former is a good defense to the latter if commenced at different times."

      Smalls additionally states in her petition that she reserves the right to amend her complaint. To the extent she is requesting appellate relief, we deny the request. See State v. Webber, 892 So.2d 869, 871 (Ala. 2004) ("The filing of a petition for a writ of mandamus against a trial judge does not divest the trial court of jurisdiction, stay the case, or toll the running of any period for obeying an order or perfecting a filing in the case. ... The petition for a writ of mandamus, if meritorious, merely prompts the appellate court to exercise its supervisory power to tell the trial judge, as an official, as distinguished from the trial court itself, to do his or her duty when that duty is so clear that there are no two ways about it. ... Further, a petition for a writ of mandamus is not a substitute for an appeal.").


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    Kenneth Lackey HOPKINS v. Jennifer J. HOPKINS
    2150955
    Court of Civil Appeals of Alabama.
    May 26, 2017 Certiorari Denied July 14, 2017
    Alabama Supreme Court 1160804
    S. Phillip Bahakel, Pelham, for appellant.
    Charles W. Gorham of Gorham & Knight, LLC, Birmingham, for appellee.
    On Application for Rehearing
   MOORE, Judge.

This court's no-opinion order of affirmance of February 10, 2017, is withdrawn, and the following is substituted therefor.

Kenneth Lackey Hopkins ("the father") appeals from a judgment entered by the Shelby Circuit Court ("the trial court") in postdivorce modification and contempt proceedings. We affirm the trial court's judgment.

Procedural History

The father and Jennifer J. Hopkins ("the mother") were divorced by a judgment entered by the trial court on December 13, 2013. The divorce judgment, as amended, among other things, awarded the parties joint legal custody of their one minor child ("the child"); awarded the mother, in effect, sole physical custody of the child; awarded the father specified visitation; encouraged the parties to agree to extend or to reschedule the father's visitation as the child gets older in accordance with the child's best interests; provided that "[e]ach party shall give the other party the right of first refusal for child care during his or her custodial visitation period[ ] in the event the custodial parent is required to be out of town for an overnight stay or is otherwise in need of extended child care"; required each party to notify the other party in the event the child became seriously ill or was required to be hospitalized due to an accident; and provided that each party allow the other party reasonable telephone access to the child. The divorce judgment, as amended, also provided that the father must pay $829 per month in child support, $1,000 per month in rehabilitative alimony for 24 months, and "COBRA" insurance premiums for the mother for 24 months. The trial court reserved jurisdiction to award periodic alimony.

On April 10, 2014, the mother filed a complaint seeking, among other things, to hold the father in contempt for allegedly failing to pay rehabilitative alimony as ordered by the divorce judgment. On May 8, 2014, the father answered the mother's complaint. On July 24, 2014, the father amended his answer and counterclaimed, requesting that the trial court modify custody or visitation and that the trial court find the mother in contempt for interfering with his visitation with the child. On January 23, 2015, the mother filed an amended complaint requesting, among other things, periodic alimony. On February 19, 2015, the father filed an amended answer. The mother filed a second amended complaint on May 4, 2015, alleging that the father had failed to return the child on time after his visitation and seeking to hold the father in contempt.

After a trial, the trial court entered a judgment on March 28, 2016, ordering the father to pay $750 per month in periodic alimony, holding the father in contempt for failing to pay rehabilitative alimony, ordering the father to pay $2,000 as a portion of the mother's attorney's fees, and denying all other relief requested by both parties. On April 20, 2016, the father filed a postjudgment motion. That motion was denied by operation of law on July 19, 2016. On August 26, 2016, the father filed his notice of appeal.

Discussion

I.

On appeal, the father first argues that the trial court erred in declining to hold the mother in civil contempt for interfering with his visitation with the child.

" 'Civil contempt' means willful, continuing failure or refusal of any person to comply with a court's lawful writ, subpoena, process, order, rule, or command that by its nature is still capable of being complied with." Rule 70A(a)(2)(D), Ala. R. Civ. P. " ' "[W]hether a party is in contempt of court is a determination committed to the sound discretion of the trial court, and, absent an abuse of that discretion or unless the judgment of the trial court is unsupported by the evidence so as to be plainly and palpably wrong, this court will affirm." ' " Aramini v. Aramini, 220 So.3d 322, 328 (Ala. Civ. App. 2016) (quoting Stamm v. Stamm, 922 So.2d 920, 924 (Ala. Civ. App. 2004), quoting in turn Stack v. Stack, 646 So.2d 51, 56 (Ala. Civ. App. 1994) ). In this case, the father alleged that the mother had committed several acts in willful violation of the terms of the divorce judgment. We address those allegations in turn.

First, the father contends that the mother willfully violated the "extra" visitation terms of the divorce judgment. The divorce judgment establishes a specific schedule for visitation by the father, but then states:

"The custodial/visitation periods as provided herein are intended by the Court to be the minimum to which each parent is entitled. The parties are encouraged to extend such periods herein allowed as the child grows older, and as may be in the best interest of the child and to reschedule, by mutual agreement, any custodial/visitation period which is inconvenient for the parties or interferes with the child's extracurricular activities, with both parties keeping in mind the best interest of the child."

The father complains that the mother refused to provide him with visitation beyond the schedule provided in the divorce judgment. We conclude that, based on the terms of the divorce judgment, the mother was not legally required to provide the father with additional visitation.

In Cochran v. Cochran, 5 So.3d 1220 (Ala. 2008), the divorce judgment awarded the former husband reasonable visitation with the parties' children as set out in a specific schedule plus "any other times mutually agreed upon by the parties." The former husband and the former wife initially agreed to additional weekday visits, but the former wife subsequently determined that such visitation did not serve the best interests of the children because it interfered with the ability of the children to complete their homework, so she withdrew her consent. The supreme court held that the former wife was not legally obligated to continue the weekday visits under the terms of the divorce judgment and that she could lawfully rescind her agreement to provide additional visitation based on the best interests of the children. 5 So.3d at 1228.

In this case, as in Cochran, the divorce judgment encourages, but does not require, the mother to agree to additional visitation periods, but only if she deems such visitation to be in the best interests of the child. The mother testified that she had refused the father's request for extra visitation only once, except for certain occasions when the father had asked to keep the child until Monday during his weekend visitations. Regarding the father's requests to extend his visitations until Monday, the mother testified that she had not allowed him to do so every time he had asked because, on the occasions when she did grant his request, the father would not prepare the child for school or because the child had had an activity scheduled for Sunday night. Based on that testimony, the trial court reasonably could have concluded that the mother had denied the father additional visitation only to serve the best interests of the child and that she had not willfully refused to obey or resist the "extra" visitation provision of the divorce judgment.

The father next argues that the mother had not given him the right of first refusal to watch the child on one occasion.

The divorce judgment provides, in pertinent part:

"Each party shall give the other party the right of first refusal for child care during his or her custodial/visitation period, in the event the custodial parent is required to be out of town for an overnight stay or is otherwise in need of extended child care."

In this context, a "right of first refusal" means that, if a party requires extended child care, that party must first offer the other party an opportunity to personally care for the child before allowing a third party to assume the care of the child. See generally Dumont v. Dumont, 961 N.E.2d 495, 500 (Ind. Ct. App. 2011) (citing Indiana Parenting Time Guidelines, § I(C)(3)); 750 Ill. Comp. Stat. 5/602.3(b).

The father testified that, on one occasion, the mother had left the child with the child's maternal grandparents while she went on vacation for an extended period without first offering him the right to care for the child. On that occasion, the father picked up the child after the maternal grandmother contacted him and requested that he assume the care of the child. The father kept the child for three days before the mother returned from vacation. In his appellate brief, the father does not cite to any part of the record indicating that the mother had willfully refused to offer him the right to care for the child on that occasion. The mother testified that she had always given the father the right of first refusal to watch the child but that she had allowed the child to stay with his maternal grandparents at times during weekends when she had custody of the child. The father does not cite any evidence regarding the nature of the weekend visits or argue that those weekend visits violated the right-of-first-refusal provision in the divorce judgment.

From that bare evidence, we cannot say that the decision of the trial court not to hold the mother in civil contempt was plainly and palpably wrong. The trial court could have determined that the father had failed to prove that the mother had willfully refused to provide him with the right of first refusal on the one occasion to which he testified or that the mother had continually denied the father the right of first refusal when she needed extended child care. See Rule 70A, Ala. R. Civ. P.

The father also argues that the mother violated the provision in the divorce judgment granting him reasonable telephone access to the child. The divorce judgment provides that "[e]ach party shall have reasonable telephone access with the minor child while in the physical control of the other parent." The father testified that he had been unable to communicate with the child by telephone at times because the child goes to bed early. In his appellate brief, the father claims that the mother interfered with his telephone access by failing to answer the telephone or by stating that the child was in bed; however, the cited portions of the record do not contain any testimony indicating that the mother failed to answer the telephone or any evidence indicating that the mother had falsely asserted that the child was in bed. See Rule 28(a)(7), Ala. R. App. P. The mother testified that every time the father telephones the child, she and the child stop what they are doing and answer the telephone. The trial court reasonably could have concluded that the mother had not denied the father reasonable telephone access in violation of the divorce judgment.

Another provision of the divorce judgment requires a party exercising physical custody of the child to immediately notify the other party "[i]n the event that the child becomes seriously ill or requires hospitalization due to an illness or accident." The father argues that the mother violated that provision by proceeding with a dental surgery without his knowledge. The father testified that the mother notified him that the child was going to have a dental procedure, that the father had disagreed with the child's having the procedure and had wanted to consult with the oral surgeon, but that the mother had proceeded with the surgery anyway. The mother, on the other hand, testified that the father had forbidden her from allowing the surgery and had stated that he would set up a consultation with a different dentist. The trial court reasonably could have concluded from the competing testimony that, assuming that the foregoing provision applied, the mother had complied by notifying the father of the child's need for surgery and by identifying the medical provider who would conduct the surgery and, thus, had not violated the terms of the divorce judgment.

The father finally argues that the mother kept the child during his visitation time. He cites an instance when, he says, he did not receive his 14-day summer visitation as set out in the divorce judgment. However, the divorce judgment provides that each parent shall receive two 14-day custodial/visitation periods during the summer "upon written notice to the other party at least thirty (30) days in advance." The father admitted that he had failed to give the 30-day notice required by the divorce judgment to exercise that visitation. Based on that testimony, the trial court reasonably could have determined that the mother had not withheld summer visitation from the father in violation of the terms of the divorce judgment.

Based on the foregoing, and considering our standard of review and the trial court's discretion on matters of contempt, we cannot conclude that the trial court erred by not holding the mother in contempt. Aramini, 220 So.3d at 329-30.

II.

The father next argues that the trial court should have modified the divorce judgment to give him expanded visitation with the child. In his appellate brief, the father argues that "the mother provided absolutely no evidence of any cause or reason that the father should not have expanded, even equal, custody time with [the child]." However, in order to obtain a modification of the visitation aspects of a divorce judgment, the burden rests on the parent seeking modification to prove that a material change in circumstances has occurred and that modification would be in the best interests of the child based on those changed circumstances. See, e.g., Flanagan v. Flanagan, 656 So.2d 1228, 1230 (Ala. Civ. App. 1995).

The father asserts in his brief to this court that he proved that the mother was using the visitation schedule in the divorce judgment "as a weapon" against the father. The father testified that he wanted more time with the child and that the mother had refused to give it to him. The mother, on the other hand, testified that she had cooperated with the father to give him more time except when his request interfered with the child's being prepared for school or attending a planned activity. The mother also testified that she was concerned about the father's having expanded visitation because the father had failed to give the child his asthma medication.

In its final judgment, the trial court denied the request for modification, but reminded the parties "of the importance" of the portion of the divorce judgment encouraging additional visitation for the father. Visitation is a matter within the discretion of the trial court.

E.W. v. Montgomery Cty. Dep't of Human Res., 602 So.2d 428, 429 (Ala. Civ. App. 1992). A trial court's discretion is guided by what will protect and enhance the best interests and welfare of the child. Id. A trial court's decision regarding visitation will not be reversed absent an abuse of discretion or a showing that it is plainly in error. Id. The trial court in the present case did not elaborate on its reasons for maintaining the visitation provisions as set out in the divorce judgment. From the record, we conclude that the trial court reasonably could have determined that the father had failed to prove that the mother was denying the father the visitation that was found to be in the child's best interests at the time of the divorce judgment and that the visitation provisions as contained in the divorce judgment continued to adequately serve the best interests of the child. Considering the trial court's discretion and our standard of review, we cannot conclude that the trial court exceeded its discretion. Flanagan, 656 So.2d at 1230.

III.

The father next argues that the trial court erred by finding him in contempt for failing to pay his rehabilitative-alimony obligation because, he says, he was unable to pay that obligation.

" '[T]he inability to comply with the trial court's judgment is a valid defense in contempt proceedings. See Gilbert v. Nicholson, 845 So.2d 785, 791 (Ala. 2002) ; Ex parte Baker, 623 So.2d 304, 306 (Ala. Civ. App. 1993) ; and Hill v. Hill, 562 So.2d 255, 257 (Ala. Civ. App. 1990).... [T]he trial court's determination that a party's failure to comply with a judgment is willful and not due to an inability to comply, when based on ore tenus evidence, will be affirmed if it is supported by one view of that evidence.' "

Aramini, 220 So.3d at 328 (quoting Stamm v. Stamm, 922 So.2d at 924 ).

The divorce judgment required the father to pay the mother $1,000 per month in rehabilitative alimony for 24 months. The father paid no rehabilitative alimony from the time the divorce judgment was entered on December 13, 2013, until May 2015, at which time he paid the mother a lump sum of $10,000. In his brief, the father asserts that the property-division and attorney-fee provisions of the divorce judgment left him without liquid assets to pay the rehabilitative alimony. The father does not cite to any evidence introduced at trial to prove that contention; instead, he refers solely to the pleadings and motions filed on his behalf. See Rule 28(a)(7), Ala. R. App. P.; see also Thomason v. Redd, 565 So.2d 259, 260 (Ala. Civ. App. 1990) ("It is not the duty of this court to search the record to determine whether it contains evidence to support contentions made by a party."). The father does cite to an exhibit that was introduced into evidence showing that his monthly expenses, excluding rehabilitative alimony, total $4,389, while he receives a net income of only $4,110 per month.

It appears that the father determined his 2014 monthly net income incorrectly. The father actually regularly earned a net income of $4,454.47 per month because he was paid 26 checks of $2,055.91 in a calendar year (26 x $2,055.91 = $53,453.66 ÷ 12 = $4,454.47). Additionally, the father received two bonus checks, totaling approximately $12,500, in 2014. See J.D.A. v. A.B.A., 142 So.3d 603, 614 (Ala. Civ. App. 2013) (holding that trial court can consider bonuses when determining a party's ability to pay periodic alimony). The father testified that he retained 67% of the proceeds of those bonus checks, i.e., $8,375, increasing his net monthly income by almost $700 to $5,152.39. The father testified that, instead of using his bonus money to pay the mother the rehabilitative alimony, he had elected to pay off other debts. The father's exhibit shows that the father used $200 of his net monthly income for entertainment.

From the evidence, the trial court could have determined that the father did not prove that he was unable to pay the rehabilitative alimony as ordered, particularly in light of the father's testimony that he intentionally used his bonus checks to pay other debts. The trial court could have determined from listening to the testimony of the father that he willfully disobeyed the provision of the divorce judgment requiring him to pay the mother $1,000 per month in rehabilitative alimony. Based on the ore tenus standard of review, we cannot place the trial court in error on this point. Aramini, 220 So. 3d at 332-33.

IV.

The father further argues that the trial court erred in awarding the mother attorney's fees because, he says, he should not have been held in contempt. Because we have rejected his challenge to the contempt findings and because the father makes no further argument with regard to the attorney's fee award, we decline to reverse the trial court's judgment on this point. See, e.g., Henderson v. Mogren, 149 So.3d 629, 639 (Ala. 2014) (upholding attorney-fee award when appellant limited his argument to the merits of the contempt finding that was determined to be without error); and Ala. Code 1975, § 30-2-54.

V.

The father last challenges the trial court's award of periodic alimony. The divorce judgment reserved jurisdiction over periodic alimony, specifically providing that the court would consider an award in the future "upon a material change in circumstances warranting such a change." Even without that language, the law generally provides that "a request for an award of alimony after the reservation of the issue must be based upon a material change of circumstances." Crenshaw v. Crenshaw, 816 So.2d 1046, 1048 (Ala. Civ. App. 2001). The father argues that the mother failed to prove a material change of circumstances.

The evidence indicated that, at the time of the entry of the divorce judgment, the mother was unable to work because of health issues, specifically, fibromyalgia and bone spurs, but had been denied disability benefits because, she said, she did not have enough work credits to qualify for those benefits. The mother received $112,000 in liquid assets in the divorce, but used $105,000 of those funds to purchase a condominium. The record does not show what debts the mother owed at the time of the entry of the divorce judgment. At the trial in the present case, the mother testified that her physical and financial conditions had changed. The mother testified that she had been diagnosed with an additional illness, osteoarthritis. She testified that she had recently been denied disability benefits again and that she had hired a lawyer to challenge that denial of benefits. The mother admitted that she had engaged in some physical activities, but, she testified, she cannot do physical activity for an extended period without experiencing pain. She testified that her only income is $829 in monthly child support, that she had not been able to pay her monthly expenses of $3,300, and that she has many outstanding bills that she cannot pay. The father testified that he believed the mother could do whatever she wanted to do.

In Stanford v. Stanford, 34 So.3d 677 (Ala. Civ. App. 2009), this court considered a case in which a former wife had been awarded rehabilitative alimony in the divorce judgment and had subsequently petitioned for and was awarded periodic alimony. At the time of the modification proceedings, the former wife was earning $20,000 per year, which was more than she had been earning at the time of the divorce, but she had incurred $30,000 in student-loan debt, and the former husband was earning more than $60,000 a year. Stanford, 34 So.3d at 681. The former wife testified that she had not been able to meet her monthly expenses since the termination of her rehabilitative alimony. The former husband pointed out that the former wife's income had actually increased; however, this court noted that she still had a $200 monthly shortfall. This court determined that the trial court in Stanford had not exceeded its discretion in awarding the former wife periodic alimony.

Similarly, in the present case, although neither party's income had changed since the entry of the divorce judgment, at the time of the trial the mother had been largely without the benefit of the rehabilitative alimony that had been intended to assist her in becoming self-supporting. Instead, she had fallen behind on her bills, and it can be inferred that her situation at the time of the trial was attributable, at least in part, to the father's contemptuous refusal to pay rehabilitative alimony. The mother testified that her only income is $829 in monthly child support, leaving her with a $2,471 monthly deficit. Additionally, according to her testimony, which the trial court apparently believed, the mother had contracted a new disabling condition that prevented her from obtaining and maintaining employment.

"Alabama law is well settled that the modification of periodic alimony is a matter within the discretion of the trial court, and on appeal a trial court's judgment on that matter is presumed correct. Posey v. Posey, 634 So.2d 571, 572 (Ala. Civ. App. 1994)." Stanford, 34 So.3d at 681. Considering our limited standard of review, we cannot conclude that the trial court erred in determining that a material change in circumstances had occurred such that the mother has a need for an award of permanent periodic alimony. Id.

The father argues that he lacks the ability to pay periodic alimony to the mother.

"Once the financial need of the petitioning spouse is established, the trial court should consider the ability of the responding spouse to meet that need. Shewbart[ v. Shewbart], 64 So.3d [1080] at 1088 [ (Ala. Civ. App. 2010) ]. 'For purposes of determining a spouse's ability to pay, and for purposes of calculating an appropriate amount of periodic alimony, the trial court should ordinarily use the spouse's net income as the starting point for these evaluations.' Rieger v. Rieger, 147 So.3d 421, 431 (Ala. Civ. App. 2013)....
" 'In considering the responding spouse's ability to pay, the trial court should take into account all the financial obligations of the responding spouse, including those obligations created by the divorce judgment.' Shewbart, 64 So.3d at 1088."

McCarron v. McCarron, 168 So.3d 68, 79 (Ala. Civ. App. 2014).

As set out above in our discussion regarding the contempt finding, the evidence in the record establishes that the father could afford to pay the mother up to $1,000 in rehabilitative alimony. The record shows that the father regularly receives bonuses and that he can rely on that income in the future. See J.D.A., 142 So.3d at 614 ("[W]hether to include bonuses in a spouse's income for purposes of determining periodic alimony is discretionary with the trial court. The exercise of that discretion will naturally depend upon a number of factors, including whether the bonuses are regular and consistent, and, therefore, can provide both the payor spouse and the recipient spouse with certainty in financial planning."). Thus, the trial court could reasonably have determined that the father could afford to pay $750 in monthly periodic alimony. We hold that the trial court did not exceed its discretion in finding that the father had the ability to pay the periodic alimony awarded. Stanford, 34 So.3d at 681.

VI.

The mother has requested that this court award her $13,225 in attorney's fees on appeal. This court has the discretion to award attorney's fees for the work performed by an attorney on appeal in cases such as this. K.D.H. v. T.L.H., 3 So.3d 894, 902 (Ala. Civ. App. 2008). The mother has attached to her appellate brief an itemization of the time her attorney spent in defending this appeal. That itemization shows that the mother's attorney expended a reasonable amount of time, 52.9 hours, at a reasonable hourly rate of $250. The evidence in the record shows that the mother has limited means to pay the fee. The father is in a better financial condition, but he also has limited means to pay the fee. The trial court in the proceedings below, in light of the financial conditions of the parties, awarded the mother only a portion of the attorney's fees she incurred. Following its lead, and considering that the mother has prevailed on all issues on appeal, this court holds that the father should pay $7,500 of the attorney's fees incurred by the mother on appeal. We deny the mother's request for additional attorney's fees for responding to the father's application for rehearing.

Conclusion

Based on the foregoing, we affirm the trial court's judgment and award the mother $7,500 in attorney's fees.

APPLICATION GRANTED; NO-OPINION ORDER OF AFFIRMANCE OF FEBRUARY 10, 2017, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.

Thompson, P.J., and Pittman, Thomas, and Donaldson, JJ., concur.

      In his counterclaim, the father requested that the mother be held in civil or criminal contempt, but, in his brief on appeal, the father cites only the law regarding civil contempt. " '[W]here no legal authority is cited or argued, the effect is the same as if no argument had been made.' " Steele v. Rosenfeld, LLC, 936 So.2d 488, 493 (Ala. 2005) (quoting Bennett v. Bennett, 506 So.2d 1021, 1023 (Ala. Civ. App. 1987) ) (emphasis added in Steele ). Thus, we address only whether the trial court erred in failing to find the mother in civil contempt.


text:
    EX PARTE Melinda Denise SWANEY
    (In re: Jonathan David Sanders v. Melinda Denise Swaney)
    2160727
    Court of Civil Appeals of Alabama.
    July 28, 2017
    Mary E. Murchison, Foley, for petitioner.
    Submitted on mandamus petition only.
   DONALDSON, Judge.

Melinda Denise Swaney ("the wife"), a resident of Baldwin County, has filed a petition for the writ of mandamus in which she asks this court to issue a writ directing the Madison Circuit Court to enter an order transferring a divorce action filed in that county against her by Jonathan David Sanders ("the husband") to the Baldwin Circuit Court. The record shows that, after being served with the divorce complaint, the wife objected to venue in Madison County and asserted that venue was improper in that county under the provisions of § 30-2-4, Ala. Code 1975. Because the undisputed evidence shows that the parties resided in Baldwin County when they separated and that the wife continued to reside in Baldwin County at the time the complaint for a divorce was filed, we grant the wife's petition.

According to the materials submitted to this court in support of the wife's petition, the parties were married in October 2011 in Nevada. In October 2014, the parties moved to Baldwin County. The parties remained in Baldwin County until March 2017 when, the wife asserts, the husband abandoned her and moved to Madison County.

On April 20, 2017, the husband filed in the Madison Circuit Court a complaint for a divorce. In the complaint, the husband stated that he had "been domiciled in the State of Alabama, for more than six months before filing the Complaint for Divorce" and that the parties "resided together until March 20, 2017 when they separated and have not lived together as husband and wife since that date." The husband did not state why venue was appropriate in Madison County.

On May 31, 2017, the wife filed a motion to dismiss or, in the alternative, to transfer the case to the Baldwin Circuit Court. In support of her motion, the wife cited § 30-2-4, Ala. Code 1975. The wife attached her sworn affidavit to her motion in which she stated that she and the husband had lived together in Baldwin County until March 20, 2017, when the husband abandoned her, and that she had remained in Baldwin County. The husband's counsel filed an unverified response to the wife's motion in which the husband did not deny that the parties had resided in Baldwin County at the time they separated or that the wife had remained in Baldwin County. The husband instead asserted that the venue provisions contained in § 30-2-4 are not mandatory.

On June 11, 2017, the Madison Circuit Court denied the wife's motion. From the information in the materials submitted to this court, it does not appear that a hearing was held. The wife filed a petition for the writ of mandamus with this court, and the husband did not file a response to the wife's petition.

" 'A petition for the writ of mandamus is the appropriate means by which to challenge a trial court's order regarding a change of venue. Ex parte Sawyer, 892 So.2d 898, 901 (Ala. 2004). The writ of mandamus is an extraordinary remedy; it will not be issued unless the petitioner shows " ' "(1) 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; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court." ' " Ex parte Inverness Constr. Co., 775 So.2d 153, 156 (Ala. 2000) (quoting Ex parte Gates, 675 So.2d 371, 374 (Ala. 1996) ); Ex parte Pfizer, Inc., 746 So.2d 960, 962 (Ala. 1999).'
" Ex parte Children's Hosp. of Alabama, 931 So.2d 1, 5-6 (Ala. 2005).
" ' "The burden of proving improper venue is on the party raising the issue and on review of an order transferring or refusing to transfer, a writ of mandamus will not be granted unless there is a clear showing of error on the part of the trial judge." Ex parte Finance America Corp., 507 So.2d 458, 460 (Ala. 1987).' Ex parte Pike Fabrication, Inc., 859 So.2d 1089, 1091 (Ala. 2002) ; see also Ex parte Hibbett Sporting Goods, Inc., 228 So.3d 1008, 1013 (Ala. Civ. App. 2017)."

Ex parte Hudson, 241 So.3d 728, 731 (Ala. Civ. App. 2017). See also Ex parte Watkins, 555 So.2d 1098, 1099 (Ala. Civ. App. 1989) ("The question of whether to transfer a case because of venue addresses itself to the sound discretion of the trial court, and any abuse of that discretion may be controlled by the writ of mandamus.").

The wife argues that venue is proper in the Baldwin Circuit Court and that the Madison Circuit Court was required to transfer the action to the Baldwin Circuit Court. In support, the wife cites § 30-2-4, Ala. Code 1975, which provides:

"Complaints for divorce may be filed in the circuit court of the county in which the defendant resides, or in the circuit court of the county in which the parties resided when the separation occurred, or if the defendant is a nonresident, then in the circuit court of the county in which the other party to the marriage resides."

The husband filed a divorce complaint that contained no allegations of where the wife lived or where the parties resided when the separation occurred. The wife promptly and appropriately filed a motion seeking to dismiss or, alternatively, to transfer the action to the Baldwin Circuit Court. The wife attached to her motion an affidavit in which she swore that the parties resided in Baldwin County at the time of the separation and that she had continued to reside in Baldwin County. The husband did not provide any evidence in opposition to the wife's affidavit.

The plain language of § 30-2-4 provides that, in a situation involving Alabama residents, venue is proper either in the county where the defendant-spouse resides, or in the county in which the parties resided when they separated. "The venue statute[, however,] is solely for the benefit of the parties and may be waived." Ramsey v. Ramsey, 347 So.2d 999, 1000 (Ala. Civ. App. 1977) (citing Hooks v. Hooks, 251 Ala. 481, 38 So.2d 3 (1948) ). In the Madison Circuit Court, the husband pointed to the phrase "may be filed" in § 30-2-4 and argued that the statute does not mandate that the divorce action could be filed only in Baldwin County. If the wife had waived the venue provisions of § 30-2-4, then the statute would not mandate a dismissal or a transfer. See Ex parte Hill, 166 So.3d 701, 705 (Ala. Civ. App. 2014) (denying petition for the writ of mandamus when petitioner had waived any objection to venue). The materials before this court clearly establish that the wife did not waive the challenge to venue but, instead, properly raised it by a motion filed before her first responsive pleading. See Rule 12(b)(3), Ala. R. Civ. P. (providing that a challenge to venue must be raised by motion or responsive pleading). See also Ex parte Till, 595 So.2d 871, 872 (Ala. 1992) ("If a party fails to raise a Rule 12(b)(3) objection in the first responsive pleading or in a motion filed before that first responsive pleading, the objection is waived.").

According to the materials submitted to this court, the undisputed evidence in this case indicated that the parties had lived together in Baldwin County, that the separation occurred in Baldwin County, and that the wife remained in Baldwin County when the husband moved to Madison County one month before filing a complaint for a divorce in the Madison Circuit Court. Therefore, the undisputed evidence indicated that venue is proper in the Baldwin Circuit Court, and because the wife did not waive the benefit of § 30-2-4, the wife's objection to venue in the Madison Circuit Court was due to be sustained. The wife requested that the case be transferred to the Baldwin Circuit Court, and that request was due to be granted. See Rule 82(d)(1), Ala. R. Civ. P. The Madison Circuit Court is directed to issue an order transferring the action to the Baldwin Circuit Court.

PETITION GRANTED; WRIT ISSUED.

Thompson, P.J., and Pittman, Thomas, and Moore, JJ., concur.

      Because the husband did not file a response to the wife's petition for a writ of mandamus, we must consider the wife's assertions to be true. Ex parte Turner, 840 So.2d 132, 134-35 (Ala. 2002).


author: THOMPSON, Presiding Judge.

text:
    J.S. v. S.L.
    2160281 2160282
    Court of Civil Appeals of Alabama.
    July 28, 2017
    Charles E. Harrison of Pearson, Harrison & Pate, LLC, Tuscaloosa, for appellant.
    W. Allen Grocholski, Fayette, for appellee.
   THOMPSON, Presiding Judge.

On July 10, 2015, S.L. ("the paternal grandmother") filed in the Fayette Juvenile Court ("the juvenile court") a petition alleging that R.T.N., the minor child of K.N. ("the father") and J.S. ("the mother"), was dependent and seeking an award of custody of the child. That action was assigned case number JU-15-43.01 ("the .01 action"). The juvenile court entered an order in the .01 action on July 10, 2015, that awarded the paternal grandmother pendente lite custody of the child.

The juvenile court conducted a hearing in August 2015. The record contains an unsigned, handwritten order in the .01 action, to which the juvenile court later referred as having been "entered," that stated that "temp. custody" was awarded to the paternal grandmother on "08/19/2015." On August 19, 2015, the juvenile court rendered a separate order in the .01 action in which it found the child to be dependent and awarded "temporary custody" to the paternal grandmother. That order is date-stamped as having been filed in the juvenile-court clerk's office on August 31, 2015. However, the clerk of the juvenile court did not enter that order on the case-action summary until January 6, 2016. The order became effective upon its entry on the case-action summary. Rule 58, Ala. R. Civ. P.; D.J.G. v. F.E.G., 91 So.3d 69, 73 (Ala. Civ. App. 2012) ; and Dudley v. State Dep't of Human Res., 555 So.2d 1121, 1122 (Ala. Civ. App. 1989).

On January 22, 2016, the mother filed in the .01 action a "counter-petition" seeking the return of custody of the child. The record indicates that the mother's January 22, 2016, petition was treated as a modification petition that initiated a new action, and the juvenile court reassigned that action case number JU-15-43.02 ("the .02 action").

Comments by the parties and the juvenile court during the hearing on the merits of the .02 action indicate that the father also filed a petition seeking the return of custody of the child, and his action was assigned case number JU-15-43.03 ("the .03 action"). The record contains no documents or orders from the .03 action. The father is not a party to these appeals, and this opinion sets forth facts pertaining to the father only as they relate to the issues raised in the mother's appeals.

The juvenile court conducted an ore tenus hearing regarding the .02 action and the .03 action on September 21, 2016. On December 19, 2016, the juvenile court entered a judgment in the .02 action in which it determined that the child remained dependent and denied the mother's petition for the return of custody of the child.

The mother filed a postjudgment motion on December 30, 2016, that indicated it was filed in reference to the .01 action and the .02 action. That motion, as it pertained to the .02 action, was deemed denied by operation of law, pursuant to Rule 59.1, Ala. R. Civ. P., Rule 1(B), Ala. R. Juv. P., and Rule 4(a)(1), Ala. R. App. P., on January 13, 2017. The mother timely appealed the judgment entered in the .02 action on January 26, 2017. Rule 4(a)(1), Ala. R. App. P.; Rule 28(C), Ala. R. Juv. P. This court assigned that appeal number 2160282.

However, the mother's appeal in appeal number 2160281, which is taken in the .01 action, is not timely. The juvenile court's initial dependency order, rendered on August 19, 2015, but not entered until January 6, 2016, ("the January 6, 2016, order") was sufficiently final to support an appeal. The mother has incorrectly referred to that order as a "pendente lite" order in asserting her arguments in her appellate brief. This court has explained the difference between a pendente lite custody award and an award of temporary custody as follows:

" 'A pendente lite custody order is an order that is effective only during the pendency of the litigation in an existing case and is usually replaced by the entry of a final judgment.
Hodge v. Steinwinder, 919 So.2d 1179, 1182 (Ala. Civ. App. 2005). Pendente lite custody orders allow a trial court to take into consideration developments in the lives of the child and the parties that naturally occur during the gap in time between the filing of an action and the final hearing in the matter. Id.
" 'However, a "temporary custody award" or a "temporary order" as to custody is a "final" custody award or judgment. Despite its name, a temporary order as to custody is intended to remain effective until a party seeks to modify it. It may be modified if the trial court reviews the case and determines that changed circumstances that warrant a modification have come into existence since the last custody award. 919 So.2d at 1182-83. Such an award is not a pendente lite award. Id.'
" T.J.H. v. S.N.F., 960 So.2d 669, 672 (Ala. Civ. App. 2006)."

P.A. v. L.S., 78 So.3d 979, 981 (Ala. Civ. App. 2011).

This court has recently held that "[a]n order is final and appealable if it contains a formal dependency determination coupled with a temporary order of custody that is incidental to that determination and subject to further review." A.J. v. E.W., 167 So.3d 362, 366 (Ala. Civ. App. 2014). In this case, the juvenile court, in the January 6, 2016, order, awarded temporary custody to the paternal grandmother after finding the child dependent. Accordingly, we conclude that order was sufficiently final to support an appeal of that order, see A.J. v. E.W., supra, and that it constituted an award of temporary custody of the child. P.A. v. L.S., supra.

The mother did not timely appeal the January 6, 2016, order within the 14 days allowed by Rule 4(a)(1), Ala. R. App. P., and Rule 1, Ala. R. Juv. P. The mother's December 30, 2016, postjudgment motion was not filed within 14 days of the entry of that order, see Rule 1(B), Ala. R. Juv. P., and, therefore, it did not operate to extend the time for taking an appeal. We therefore dismiss the mother's January 26, 2017, appeal in appeal number 2160281, which was filed in reference to the January 6, 2016, order entered in the .01 action.

The mother first argues on appeal that the juvenile court erred in awarding the paternal grandmother pendente lite custody in its July 10, 2015, order entered in the .01 action. However, a pendente lite order cannot support an appeal, and it does not become appealable upon the entry of a final order or judgment. Morgan v. Morgan, 183 So.3d 945, 966 (Ala. Civ. App. 2014) ; see also Ex parte J.P., 641 So.2d 276, 278 (Ala. 1994) ("Pendente lite orders are generally entered only during the pendency of the litigation and are usually replaced by a final order or judgment that is entered at the end of the litigation."). The mother may not obtain review of the July 10, 2015, pendente lite order in this appeal.

The mother argues that the procedural and notice issues she raised in her appellate brief concerning the July 10, 2015, pendente lite order were not "cured" by the manner in which the juvenile court conducted the August 19, 2015, dependency hearing. The mother's argument focuses on the August 19, 2015, hearing, and not on an order entered by the juvenile court; that argument seems to pertain to her contention that she should have received notice before the entry of the July 10, 2015, order. Further, the mother failed to timely appeal the January 6, 2016, order that was based on the evidence presented at the August 19, 2015, dependency hearing. Accordingly, we do not reach those arguments.

The mother next argues that the juvenile court improperly determined that the mother had the burden of proof in seeking to regain custody of the child in the .02 action. In its December 19, 2016, judgment in the .02 action, the juvenile court found that the mother had failed to meet the standard set forth in Ex parte McLendon, 455 So.2d 863 (Ala. 1984). The mother also raises two additional arguments, both of which relate to her argument concerning the burden of proof. Specifically, the mother contends that the juvenile court failed to presume that she had a prima facie right to custody of the child and that the juvenile court erred in determining that she had to meet the McLendon standard in order to regain custody of the child. Those arguments are interrelated, and we address them together.

In making her arguments on those issues, the mother contends that the January 6, 2016, order was a pendente lite order and did not constitute a final order that would warrant the filing of a modification action in order for her to regain custody and that would not require her to meet the McLendon standard to regain custody. As has already been explained in this opinion, however, the January 6, 2016, order was a "temporary order" that was sufficiently final to support an appeal and to trigger the application of the McLendon standard to a modification action. A.J. v. E.W., supra ; P.A. v. L.S., supra.

Further, the mother's argument on appeal is different from her position during the hearing on the merits. At the beginning of the September 21, 2016, hearing, the mother's attorney asked the juvenile court which party had the burden of proof. The juvenile court responded by saying that the mother's petition was, in essence, a petition to modify and that the mother needed to meet the Ex parte McLendon standard by showing a material change in circumstances and that the change would promote the child's best interests. The mother's attorney agreed with that statement. Thus, at the September 21, 2016, hearing, the mother conceded that she had the burden of meeting the McLendon standard. The mother first argued that the McLendon standard did not apply under the facts of this case in her December 30, 2016, postjudgment motion; the mother reiterates those arguments in her brief filed in this court. However,

"[t]he law is well settled that a party may not induce an error by the trial court and then attempt to win a reversal based on that error. 'A party may not predicate an argument for reversal on "invited error," that is, "error into which he has led or lulled the trial court.'' ' Atkins v. Lee, 603 So.2d 937, 945 (Ala. 1992) (quoting Dixie Highway Express, Inc. v. Southern Ry., 286 Ala. 646, 651, 244 So.2d 591, 595 (1971) ). 'That doctrine [of invited error] provides that a party may not complain of error into which he has led the court.' Ex parte King, 643 So.2d 1364, 1366 (Ala. 1993). 'A party cannot win a reversal on an error that party has invited the trial court to commit.' Neal v. Neal, 856 So.2d 766, 784 (Ala. 2002). See also Liberty Nat'l Life Ins. Co. v. Beasley, 466 So.2d 935, 937 (Ala. 1985) ; State Farm Mut. Auto. Ins. Co. v. Humphres, 293 Ala. 413, 418, 304 So.2d 573, 577 (1974).''

Mobile Infirmary Med. Ctr. v. Hodgen, 884 So.2d 801, 808 (Ala. 2003).

In Mobile Infirmary, supra, Mobile Infirmary Medical Center had initially argued before the trial court that a jury verdict was proper but had then argued in postjudgment filings that the judgment entered on that verdict was improper and that it was entitled to a judgment in its favor. Our supreme court concluded that "any error committed by the trial court in entering a judgment upon the jury verdict in this case was invited by Mobile Infirmary" and that Mobile Infirmary could not later argue against the correctness of that judgment. 884 So.2d at 808. See also Kaufman v. Kaufman, 22 So.3d 458, 464 (Ala. Civ. App. 2007) (concluding that the wife had invited the error of which she complained on appeal when she "first raised an objection to the trial court's receiving additional evidence in her postjudgment motion and on appeal, after the trial court had entered a judgment that she felt was adverse to her").

In this case, the mother agreed before the juvenile court during the September 21, 2016, hearing that the McLendon standard applied and established her burden in her modification action. Thus, as in Mobile Infirmary, supra, and Kaufman v. Kaufman, supra, the mother in this case invited the error of which she now complains. Accordingly, we decline to reverse the trial court's judgment based on her current arguments.

The mother last argues that the juvenile court erred in denying her claim seeking a return of custody of the child. The mother maintains that the evidence does not support the juvenile court's finding that the mother did not meet the McLendon standard. "Under the McLendon rule, the appropriate standard is whether a change in custody would materially promote the welfare of the child." Ex parte J.P., 641 So.2d at 278.

In addition to the child at issue, the mother has another child ("the half sibling), who is older than the child at issue and who is in the custody of the child and the half sibling's maternal great-grandmother. The mother lost custody of the half sibling approximately a year before the August 19, 2015, dependency hearing regarding the child in the .01 action as a result of an investigation, conducted by the Fayette County Department of Human Resources ("DHR"), into the mother's ability to parent the half sibling because of the mother's use of illegal drugs. At the August 19, 2015, dependency hearing, the mother admitted that she had not complied with DHR's reunification goals regarding the half sibling, such as attending a substance-abuse rehabilitation program or cooperating with services offered through "the FOCUS program." The mother lived near her grandmother and the half sibling, and she saw them daily.

At the August 19, 2015, dependency hearing, the mother explained that she lived in a mobile home owned by the child's maternal great-grandmother. That mobile home is located near the home of the maternal great-grandmother, as well as to the homes of the maternal grandparents and the mother's brother. The mother and the father resided together, with the child, at that mobile home for a few months following the child's birth in May 2015. The mother testified at the August 19, 2015, dependency hearing that she was unemployed and dependent on her family members for her support.

The paternal grandmother testified that the father telephoned her on July 10, 2015, to inform her that he and the mother had ended their relationship and to ask her to retrieve the child. She testified that the father had informed her that he and the mother had used illegal drugs together. According to the paternal grandmother, at the time of the August 19, 2015, dependency hearing, the father was incarcerated because he had not been able to pass drug screens that were a condition of his probation.

The mother testified at the August 19, 2015, dependency hearing that she had stopped using illegal drugs, and she stated that she had passed two drug screens, which apparently were required in the action pertaining to the half sibling. The mother admitted, however, that she had last tested positive for drugs "a month ago," but then she stated that she had been "clean" for eight months and had failed the drug test in April 2014. The maternal grandmother testified on behalf of the mother and stated that she did not believe that the mother was using drugs, and she stated that the mother could properly parent and support the child with the assistance of family members.

At the conclusion of the dependency hearing, the juvenile court found the child dependent. The juvenile court also announced its intention to require the mother to comply with the DHR reunification goals in the action pertaining to the half sibling.

With regard to the modification action, and whether the evidence demonstrates a material change in circumstances since the entry of the January 6, 2016, order sufficient to meet the McLendon standard, the record reveals the following evidence. The mother testified that, at the time of the September 21, 2016, hearing, she was living in the maternal great-grandmother's home with the maternal great-grandmother; the half sibling, of whom the maternal great-grandmother still had custody; and the mother's three-month-old infant daughter. The maternal great-grandmother's home has three bedrooms, and both the mother and the maternal great-grandmother testified that the home was appropriate for the child and could accommodate the mother, the maternal great-grandmother, and the mother's two other children.

The mother testified that she has been unemployed for two or three years. The mother stated that she had started, in the week before the September 21, 2016, hearing, to babysit for her cousin and that she would be paid $50 per week for doing so. The mother also testified that her mother pays her approximately $350 per month to help her with things such as house cleaning, and that she receives public assistance in the forms of food stamps and vouchers through the Women, Infants, and Children Assistance Program. The mother testified that she was capable of supporting the child, as well as her other two children, given her income and additional support from her family, if needed.

The mother testified that she had completed parenting classes in compliance with the juvenile court's order requiring that she work toward DHR's reunification goals in the action pertaining to the half sibling. The mother testified that DHR had not asked her to submit to drug screens, and she testified that she did not use illegal drugs.

A great deal of the testimony in the modification action concerned the allegations in the paternal grandmother's .01 action. The mother denied that she had used drugs during her pregnancy with the child or after the child was born. The father testified, however, that the mother had used both methamphetamine and marijuana during her pregnancy with the child and that both parents had used illegal drugs with members of the mother's extended family. The mother briefly testified in rebuttal to the father's testimony and again denied that she had used illegal drugs during her pregnancy with the child.

Much of the mother's argument on appeal is dedicated to attacking the credibility of the paternal grandmother and the father. We note that the father testified in support of his claim for custody of the child in the .03 action and that this court has set forth only that testimony of the father that touched on facts that might be pertinent to the juvenile court's denial of the mother's claim for custody. This court has stated:

" 'Generally, a trial court's custody determination following the presentation of ore tenus evidence is presumed correct and that judgment will not be set aside on appeal absent a finding that the trial court abused its discretion or that its determination is so unsupported by the evidence as to be plainly and palpably wrong. Scholl v. Parsons, 655 So.2d 1060 (Ala. Civ. App. 1995). However, where a trial court bases its custody determination on an improper custody-modification standard, that judgment is due to be reversed. See generally B.S.L. v. S.E., 826 So.2d 890 (Ala. Civ. App. 2002).' "

M.B. v. S.B., 12 So.3d 1217, 1219 (Ala. Civ. App. 2009) (quoting C.A.M. v. B.G.H., 869 So.2d 507, 508 (Ala. Civ. App. 2003) ).

The juvenile court found the child dependent and transferred custody of the child to the paternal grandmother in the January 6, 2016, order, and the mother did not appeal that order. With regard to the modification action, the juvenile court received evidence indicating that the child continues to be well cared for in the paternal grandmother's home. The mother presented evidence tending to indicate that she no longer uses illegal drugs, that she lives in a stable home with the maternal great-grandmother and the mother's other two children, and that her family is willing to continue to provide support for her, both financially and emotionally. We applaud the improvements in the mother's circumstances. However, those improvements are not sufficient, in themselves, to meet the McLendon standard. J.K.M. v. T.L.M., 212 So.3d 931, 939 (Ala. Civ. App. 2016).

" '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.' "

J.K.M. v. T.L.M., 212 So.3d at 939 (quoting Ex parte McLendon, 455 So.2d at 866 ). Given the evidence in the record on appeal, we cannot say that the mother has demonstrated that the juvenile court erred in denying her claim in the .02 action seeking a return of custody of the child. Therefore, in appeal number 2160282, the juvenile court's judgment is affirmed.

2160281-APPEAL DISMISSED.

2160282-AFFIRMED.

Pittman and Donaldson, JJ., concur.

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

      The record contains no indication that the two actions were consolidated.

      The January 6, 2016, order was based on the evidence presented at that August 19, 2015, hearing.

      The relevant portion of the transcript reads as follows:
      "[MOTHER'S ATTORNEY]: Yes, sir. Let me ask a better question. I assume that by pursuing our counter petition in the .02 case and responding to the evidence submitted in the .03 that will deal with all the issues in the .01 case?
      "THE COURT: Well, I would assume yes. I would think-what are you trying to get into?
      "[MOTHER'S ATTORNEY]: I'm just trying to establish-apparently we have the burden of proof on our counter petition.
      "THE COURT: That's true.
      "[MOTHER'S ATTORNEY]: But we were not the movant in this whole sequence of events. The child was taken from us on a petition.
      "THE COURT: That's true.
      "[MOTHER'S ATTORNEY]: So I'm just trying to establish by meting out will that resolve the matters in the summer of 2015 as well?
      "THE COURT: I don't know because-somebody may want to speak to this, but as I understand the law is this much like a petition to modify. There has to be a change of circumstance, material change of circumstances since then.
      "[MOTHER'S ATTORNEY]: Okay. I'm trying to establish what my burden might be.
      "THE COURT: I think it is that you have a burden to show that there's been a material change in circumstance, and further, I mean, the McLendon standard may come into effect, but further always the polestar is the best interests of the child.
      "[MOTHER'S ATTORNEY]: Yes, sir. I would agree with that."

      To the extent that the mother contends that she had a prima facie right to custody of the child, we note that presumption does not apply when an earlier order or judgment awards custody to a nonparent. Ex parte McLendon, 455 So.2d at 865.

      Shortly before the September 21, 2016, hearing on the mother's modification petition, the mother gave birth to her third child.

      We note that, during both the August 19, 2015, dependency hearing and the September 21, 2016, hearing, the mother objected only occasionally to the introduction of hearsay evidence, and this opinion has set forth evidence to which the mother did not object or to which the juvenile court did not sustain an objection.

      In her testimony, the mother initially stated that the home had two bedrooms, but she later testified that she, the maternal great-grandmother, and the half sibling each had her own bedroom. The maternal great-grandmother's testimony indicated that her home has three bedrooms.


text:
    M.B. v. B.B. and A.B.
    2160373
    Court of Civil Appeals of Alabama.
    August 4, 2017
    Lisa M. Ivey, Jasper, for appellant.
    Submitted on appellant's brief only.
   THOMPSON, Presiding Judge.

M.B. ("the mother") appeals a judgment of the Lee Juvenile Court ("the juvenile court") denying her request for a return of custody of her minor child from B.B. and A.B. ("the custodians").

The record indicates the following pertinent procedural history and facts. The mother has lived in Colorado for the last 15 years. The child at issue was born in February 2014 in Colorado. The mother ended her relationship with R.L., who is the child's alleged father, in January 2015, when the child was almost 11 months old, and she moved with the child to a new apartment in the Denver, Colorado, area. On approximately January 10, 2015, the mother was arrested for driving under the influence after being stopped for a minor traffic violation. Following that arrest, the Colorado Department of Human Services ("CDHS") took the child into protective custody. Testimony from A.B. indicates that the child spent 19 days in foster care in Colorado. Thereafter, with the mother's permission, CDHS contacted the custodians, who live in Alabama, about serving as a relative placement for the child, and they agreed to take the child. The child has lived in the custodians' home since January 29, 2015.

At some point shortly after the child came to live with them, the custodians filed a dependency petition in the juvenile court. The record on appeal in this action does not contain that dependency petition or indicate the date on which it was filed. On May 10, 2015, approximately three and a half months after the child was placed in the custodians' home, the juvenile court entered a pendente lite order based on the agreement of the parties. In that May 10, 2015, order, the juvenile court, among other things, found the child dependent and awarded pendente lite custody of the child to the custodians.

On June 30, 2016, the mother filed a petition in the juvenile court in which she sought a return of custody of the child. The juvenile-court clerk docketed that petition as an .02 action, but it is clear that the mother's request was for a return of custody in the original dependency action and that the juvenile court properly treated it as such.

The juvenile court conducted an ore tenus hearing. On February 14, 2017, the juvenile court entered a judgment in which it, among other things, found the child dependent, awarded custody of the child to the custodians, awarded the mother visitation, and ordered that the dependency action be closed. The mother filed a postjudgment motion on February 16, 2017. The mother filed a notice of appeal before the juvenile court ruled on that motion and before the motion could be denied by operation of law. The mother's appeal was held in abeyance until March 2, 2017, when the postjudgment motion was deemed denied by operation of law, and it became effective on that date. Rule 4(a)(5), Ala. R. App. P.; see also M.G. v. J.T., 90 So.3d 762, 764 n. 2 (Ala. Civ. App. 2012). Thus, the mother's appeal was timely filed.

The mother's appeal focuses on her contention that the juvenile court's judgment finding the child dependent was not supported by the evidence. The mother has not addressed the issue of the juvenile court's subject-matter jurisdiction to consider the dependency action, and the custodians did not file a brief in this court. "This court may not presume ... that a statutory court of limited jurisdiction, like the juvenile court, ... has the prerequisite subject-matter jurisdiction over a particular matter." D.G. v. K.H., 155 So.3d 242, 243 (Ala. Civ. App. 2013). Rather, this court must take judicial notice of jurisdictional issues, even ex mero motu. K.R. v. Lauderdale Cty. Dep't of Human Res., 133 So.3d 396, 403-04 (Ala. Civ. App. 2013) ; M.B.L. v. G.G.L., 1 So.3d 1048, 1050 (Ala. Civ. App. 2008). We note that the parties may not confer jurisdiction on the juvenile court, even by agreement. K.R. v. Lauderdale Cty. Dep't of Human Res., 133 So.3d at 403-04.

The Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"), which is codified in Alabama at § 30-3B-101 et seq., Ala. Code 1975, governs a juvenile court's subject-matter jurisdiction over child-custody actions such as this one. According to the UCCJEA, a "child custody proceeding" is "[a] proceeding in a court in which legal custody, physical custody, or visitation with respect to a child is an issue." § 30-3B-102(4), Ala. Code 1975. The term "child custody proceeding" includes, among other things, "a proceeding for ... dependency ..., in which the issue [of custody or visitation] may appear." Id.; see also M.B.L. v. G.G.L., 1 So.3d at 1050 ("The UCCJEA addresses jurisdiction in matters that may be classified within the definition of a 'child custody proceeding,' including dependency proceedings in which the issue of a child's custody may arise."); and H.T. v. Cleburne Cty. Dep't of Human Res., 163 So.3d 1054, 1062 (Ala. Civ. App. 2014) (explaining that the UCCJEA applies to custody proceedings involving a child alleged to be dependent). A "child custody determination" is defined under the UCCJEA as "[a] judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child. The term includes a permanent, temporary, initial, and modification order." § 30-3B-102(3) ; see also D.B. v. Coffee Cty. Dep't of Human Res., 26 So.3d 1239, 1243 (Ala. Civ. App. 2009).

Section 30-3B-201(a), Ala. Code 1975, a part of the UCCJEA sets forth the exclusive jurisdictional basis for an Alabama court to exercise jurisdiction over an initial child-custody determination and provides:

"Except as otherwise provided in Section 30-3B-204, [Ala. Code 1975,] a court of this state has jurisdiction to make an initial child custody determination only if:
"(1) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;
"(2) A court of another state does not have jurisdiction under subdivision (1), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under Section 30-3B-207 or [Section] 30-3B-208, [Ala. Code 1975,] and:
"a. The child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and
"b. Substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships;
"(3) All courts having jurisdiction under subdivision (1) or (2) have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under Section 30-3B-207 or [Section] 30-3B-208; or
"(4) No court of any other state would have jurisdiction under the criteria specified in subdivision (1), (2), or (3)."

We note that the term "home state" is also defined under § 30-3B-102(7) of the UCCJEA as:

"The 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. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of the child or any of the mentioned persons is part of the period."

In Ex parte Siderius, 144 So.3d 319, 324-25 (Ala. 2013), our supreme court noted that of the two definitions of "home state" in the UCCJEA, i.e., the one set forth in § 30-3B-102(7) and the one set forth in § 30-3B-201(a)(1), the definition set forth in § 30-3B-201(a)(1) is broader. The court then concluded that "we resolve the apparent conflict between the two sections, in keeping with the purposes of the UCCJEA, by applying the construction that finds the existence of a home state, rather than the one that finds that the children had no home state." Id. at 325.

It does not appear that, at the time the dependency action was initiated, Alabama could be said to be the child's "home state" under § 30-3B-201(a)(1) or § 30-3B-102(7). See Ex parte Siderius, supra (discussing the definitions of "home state" under the UCCJEA). The child had been in Alabama less than four months when the May 10, 2015, pendente lite dependency order was entered; again, the record does not indicate when the dependency action was initiated, but it was clearly initiated before the May 10, 2015, order was entered. Thus, it is not possible that the child was living in Alabama for the six months preceding the initiation of that action that might create "home state" jurisdiction in Alabama under the UCCJEA. Rather, the child had been living in Colorado for his entire life, i.e., 11 months, at the time he was removed from the mother's custody in Colorado in January 2015.

Although this court does not currently so decide, it appears that Colorado was the child's home state. The record currently before this court does not clearly indicate whether any action pertaining to the child had been filed by the custodians or by CDHS in Colorado, or if any such action had been transferred to the juvenile court pursuant to Colorado's version of the UCCJEA. We note that A.B. testified that the child had been in foster care in Colorado for 19 days before the child was moved to her home in late January 2015. It is extremely doubtful that the State of Colorado would deprive the mother of her fundamental right to custody of her child by placing the child in foster care without first initiating a dependency action. However, the record before this court does not indicate whether such a Colorado dependency action was initiated and, if so, whether, after the child was moved to the custodians' home in Alabama, the Colorado courts declined to exercise jurisdiction over the child pursuant to provisions similar to § 30-3B-201(a)(2) or (3) in Colorado's version of the UCCJEA.

We acknowledge that, under certain circumstances, an Alabama court may take actions pertaining to a child under the emergency-jurisdiction provision of the UCCJEA. See § 30-3B-204, Ala. Code 1975. However, "a juvenile court exercising temporary emergency jurisdiction under § 30-3B-204 does not have jurisdiction to adjudicate dependency and award custody by virtue of the limited jurisdiction provided to it." J.D. v. Lauderdale Cty. Dep't of Human Res., 121 So.3d 381, 385 (Ala. Civ. App. 2013). Thus, the juvenile court, if acting under § 30-3B-204, would arguably have had jurisdiction to enter the May 10, 2015, pendente lite order. However, in order to properly exercise subject-matter jurisdiction after utilizing emergency jurisdiction under the UCCJEA, the juvenile court would have had to comply with the requirements of § 30-3B-204, including provisions specifying that it communicate with a Colorado court that might have exercised jurisdiction over the child. The record before this court contains no indication that the juvenile court has done so.

"The record is not conclusive with regard to the question of jurisdiction.... We are simply not presented with sufficient evidence to enable us to determine whether jurisdiction was proper in the juvenile court in this case." D.B. v. Coffee Cty. Dep't of Human Res., 26 So.3d at 1245. Thus, given the lack of evidence in this case pertaining to whether the juvenile court properly exercised jurisdiction over the dependency action, we reverse the judgment of the juvenile court and remand the cause for a timely determination by the juvenile court, based, if necessary, on its receipt of additional evidence, on the issue of its jurisdiction under the UCCJEA. D.B. v. Coffee Cty. Dep't of Human Res., supra ; M.J.P. v. K.H., 923 So.2d 1114, 1117 (Ala. Civ. App. 2005).

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      The mother's testimony at the January 25, 2017, hearing in this action indicates that R.L. appeared at a 2015 hearing before the juvenile court on the custodians' dependency petition, which resulted in a May 10, 2015, order in which R.L. was adjudicated the father of the child, but that she had not seen him since that time. R.L. was not a party to the mother's action seeking the return of custody of the child and did not seek to intervene.

      The record indicates that the mother had been drinking at her new apartment but realized that her vehicle was illegally parked outside her new apartment, and she left the child in the apartment while she moved the vehicle; she was stopped by law-enforcement officers while doing so.

      The mother alleged in a filing in the juvenile court that she has no relationship to the custodians but that one of them is the child's second cousin.

      That May 10, 2015, order specified:
      "The parties are given until [July 1, 2016,] to resolve dependency and should at a minimum accomplish the requirements set out in this order. Any request for a return of custody or modification in this matter should be filed prior to said date.
      Unless such a request for modification has been previously filed with the Court, the custodial provisions of this order will automatically become terminal upon said date. Any request for modifications on or after said date will require a new petition and the [Ex parte] McLendon [, 455 So.2d 863 (Ala. 1984),] standard may apply."

      The mother's petition for a return of custody was filed before the July 1, 2016, deadline set forth in the May 10, 2015, order, see note 4, supra, and there is no indication in the record that the juvenile court applied the Ex parte McLendon, 455 So.2d 863 (Ala. 1984), standard appropriate for a modification action.

      Although the February 14, 2017, judgment is designated as being entered in case no. JU-15-303.02, it is clear that that judgment pertains to the original dependency action initiated by the custodians.

      We also note that, although statements in an appellate brief are not evidence, the mother represents in her brief submitted to this court that "[t]he child was removed from the mother's custody in Colorado in January 2015." We do not think it is likely that, in the short time the child remained in Colorado following the mother's arrest, a Colorado court would have entered a custody determination under the UCCJEA. However, if such a custody determination was made by a Colorado court, that court would maintain continuing jurisdiction over the child, and Alabama would have jurisdiction to modify such a custody determination only under limited circumstances. See § 30-3B-203, Ala. Code 1975; and M.J.P. v. K.H., 923 So.2d 1114, 1117 (Ala. Civ. App. 2005).

      This court makes no determination whether the juvenile court could properly exercise jurisdiction pursuant to § 30-3B-204 under the facts of this case.