author: THOMPSON, Presiding Judge.

text:
    Quinzetia THOMAS v. SAFEWAY INSURANCE COMPANY OF ALABAMA, INC.
    2160613
    Court of Civil Appeals of Alabama.
    August 4, 2017
    Mark Erdberg of Jaffe & Erdberg, P.C., Birmingham, for appellant.
    J. Mark Hart and Brett W. Aaron of Hand Arendall LLC, Birmingham, for appellee.
   THOMPSON, Presiding Judge.

Quinzetia Thomas appeals from a summary judgment entered by the Jefferson Circuit Court ("the trial court") in favor of Safeway Insurance Company of Alabama, Inc. ("Safeway"). Thomas had filed a civil action against Safeway alleging claims of breach of contract and bad faith.

The material facts in this case are not in dispute. The evidentiary submissions in favor of and in opposition to Safeway's motion for a summary judgment indicate the following. Thomas was in an automobile accident on November 11, 2013, when a vehicle driven by Erica Square struck Thomas's vehicle. Thomas was injured in the accident and required medical treatment. At the time of the accident, Thomas had an automobile insurance policy ("the policy") with Safeway that included "medical payments" ("med pay") benefits of up to $2,000. Pursuant to the policy, Safeway would pay Thomas up to $2,000 for "reasonable expenses incurred for necessary medical and funeral expenses" to treat injuries sustained in an automobile accident and

"which is in excess of any medical and/or funeral expenses actually paid or which would be payable to or on behalf of [Thomas] under any provision of any:
"a. automobile or premises insurance affording benefits for medical expenses;
"b. individual, blanket or group accident, disability or hospitalization insurance; or
"c. medical or surgical insurance or reimbursement plans."

In his affidavit, Richard Mizell, the claims manager for Safeway, testified that Thomas notified Safeway of the accident on November 12, 2013, and that on November 19, 2013, Safeway faxed a "proof of loss and medical authorization" form ("the proof-of-loss/medical-authorization form") to Thomas through her attorney. A letter accompanying the proof-of-loss/medical-authorization form asked that Thomas return the form, signed and notarized, along with copies of any medical bills and prescriptions and proof of related expenses. In his affidavit, Mizell explained the importance of obtaining Thomas's signature on the proof-of-loss/medical-authorization form. Saying the signed form was "vital" to Safeway, Mizell said:

"The proof of loss form contained the medical authorization and trust agreement for [Thomas] to sign. Without it, Safeway could not obtain medical bills to confirm whether Safeway was excess to other insurers, including medical insurance providers. Further [Thomas's] policy required her to sign the proof of loss/medical authorization to preserve Safeway's subrogation and reimbursement rights."

A second proof-of-loss/medical-authorization form was faxed to Thomas on December 9, 2013. Mizell said that on February 13, 2014, and again on May 16, 2014, Safeway contacted Thomas to ask her whether she intended to file a claim under her med-pay coverage. On May 23, 2014, Thomas informed Safeway that she would be making such a claim but that she did not have all of her documentation yet.

On August 27, 2014, Lindsay Hardaway, a claims adjuster for Safeway, sent Thomas a letter with yet another proof-of-loss/medical-authorization form. In the letter, Hardaway informed Thomas that Safeway still had not received a completed proof-of-loss/medical-authorization form. She asked that Thomas "sign and mail this form back to this office along with any related medical bills for us to consider that were not covered by any group, health, or other coverage." The letter also said that Safeway could not consider any payment until the proof-of-loss/medical-authorization form was completed and returned.

On September 30, 2014, Thomas informed Safeway that she would be sending documentation to support the med-pay claim. Mizell said that, at that time, Safeway again told Thomas that she needed to sign the proof-of-loss/medical-authorization form. Mark Erdberg, Thomas's attorney, stated in his affidavit that, on March 11, 2015, he contacted Hardaway and told her he "was not comfortable with some of the language in the [proof-of-loss/medical-authorization form] that they require[d] to be signed." Specifically, Erdberg was not comfortable with language in the sworn-statement portion of the form. That statement provides:

"To the extent of the payment made or advanced under this policy, the insured hereby assigns, transfers and sets over to the insurance company all rights, claims or interests that he/she has against any person, firm or corporation liable for the medical or funeral services for which payment is made or advanced. He/she also hereby authorizes the insurance company to sue any such third party in his/her name. It is further understood that the said company, their duly authorized agent or attorney in that behalf, shall have the authority to endorse releases and drafts, and receipt for all monies in any manner, occurring to any benefit, from or out of the said subrogation.
"The Insured or Covered Person hereby warrants that no release has been given or will be given or settlement or compromise made or agreed upon with any third party or insurer who may be liable to the insured with respect to the claim being made herein.
"That the Insured or Covered Person warrants that said loss or damage did not originate by any act, design or procurement on my part nor in consequence with any fraud or evil practice done or suffered by me and that the above stated informat[io]n is true and correct in all regards and is material to any rights under the policy.
"MEDICAL
"By this Sworn Proof of Loss the undersigned hereby authorizes and gives permission to Safeway Insurance Company to obtain any and all medical information concerning the undersigned and hereby request any and all doctors, hospitals, and medical providers to furnish said Company any and all medical information requested by said Company.
"It is expressly understood and agreed that the furnishing of this blank or the preparation of proof by a representative of the above insurance company is not a waiver of any of its rights."

Erdberg asked Hardaway whether there was anything in Thomas's policy that required the proof-of-loss/medical-authorization form to be signed. He said that Hardaway told him she would look into the matter. On April 7, 2015, after another telephone conversation between Hardaway and Erdberg, Hardaway faxed a portion of the policy to Erdberg. In his affidavit, Erdberg said that he still disagreed that the policy required Thomas to sign the proof-of-loss/medical-authorization form. We note that neither Thomas nor Erdberg indicated in the record the specific language in the policy that was under discussion at that time. Erdberg said in his affidavit that Hardaway told him not to worry about signing the proof-of-loss/medical-authorization form but to complete it and return it to her. After the conversation, Thomas faxed a copy of the proof-of-loss/medical-authorization form to Safeway; however, only one page of the form was completed and it was not signed.

On July 6, 2015, Erdberg said, Thomas still had not received a payment from Safeway for her med-pay claim. He spoke to Hardaway again, and, he said, she pointed out to him that the med-pay coverage was secondary to health insurance. Erdberg advised that the amount Safeway owed Thomas was $530.52, and, he said, he faxed the records supporting the med-pay claim to Hardaway again. Although Erdberg's affidavit indicates that the records were attached as an exhibit, the record on appeal contains only a fax cover letter referring to "the attached," but there are no records attached.

On August 18, 2015, Erdberg said, he spoke to Safeway employee Bart Copeland, who asked that Thomas's records be forwarded to him. Copeland sent Erdberg an e-mail stating that Safeway did not have the signed second page of the proof-of-loss/medical-authorization form. He asked Erdberg to forward that page to him so that Safeway could conclude its investigation of the claim. A copy of a blank signature page was attached to the e-mail. Erdberg responded, saying that he was not comfortable with the language in the form, and asked Copeland if the policy explicitly required an insured to sign the proof-of-loss/medical-authorization form. Copeland sent Erdberg a portion of the policy and referred Erdberg to language stating:

"As soon as possible the Covered Person [, i.e., Thomas,] making a claim under this coverage shall give us written proof of intent to present a claim under this Part, and to provide us a proof of loss, including full details of the injuries and treatment, other medical, hospital, workman's compensation insurance available, and any other information we may need to determine the amounts payable. The Covered Person shall submit to reasonable questioning concerning any claim made under this policy.
"The Covered Person shall submit to physical examination by doctors chosen by us at the time we select and as often as we may reasonably require. The Covered Person shall also give us an authorization which would allow us to obtain medical reports and copies of the records.
"....
"TRUST AGREEMENT
"When we pay medical expenses, the Covered Person or legal representative must agree in writing to repay us out of any damages recovered from anyone responsible for causing the bodily injury. The Covered Person must also agree in writing to hold in trust and preserve for us any rights to recover against anyone."

(Bold typeface in original.) Thomas did not provide Safeway with a signed proof-of-loss/medical-authorization form.

On November 12, 2015, Erdberg said, a settlement was reached with Square. On December 9, 2015, Thomas signed the settlement agreement releasing Square from liability. Mizell stated in his affidavit that Safeway was not notified that Thomas planned to settle with Square until after the settlement was final. The settlement agreement and release "destroyed Safeway's subrogation rights," Mizell said.

Thomas filed this civil action against Safeway on May 9, 2016, asserting that Safeway had breached the policy in bad faith. As of the date Mizell signed his affidavit, November 1, 2016, Safeway still had not denied Thomas's med-pay claim, Mizell said.

After hearing arguments from the parties, the trial court entered a summary judgment in favor of Safeway on December 11, 2016. In the judgment, the trial court determined that Safeway had not breached the policy "because Safeway never denied the claim nor refused to pay. It merely requested from ... Thomas, but did not receive, forms and documents essential to its evaluation of coverage. Because [Thomas] did not satisfy conditions precedent to coverage, Safeway did not constructively deny her claim." The trial court specifically found that Thomas's failure to submit the signed proof-of-loss/medical-authorization form violated a condition precedent to her coverage under the policy. It also found that her refusal to submit medical bills showing payments by other insurers also violated a condition precedent and precluded Thomas from any recovery from Safeway. It specifically found that Thomas's lack of cooperation in timely signing the proof-of-loss/medical-authorization form and in reaching a settlement with Square "destroyed" Safeway's subrogation rights, precluding Thomas's coverage under the policy. Finally, the trial court found that Safeway never explicitly or constructively denied the med-pay claim and that it had a lawful basis to defer payment based on Thomas's failure to meet the conditions precedent to receive payment under the policy. Accordingly, the trial court found that Thomas could not demonstrate the elements to sustain a bad-faith claim.

Thomas appealed the summary judgment to the Alabama Supreme Court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala. Code 1975.

" 'The standard of review applicable to a summary judgment is the same as the standard for granting the motion....' McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So.2d 957, 958 (Ala. 1992).
" 'A summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. The burden is on the moving party to make a prima facie showing that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. In determining whether the movant has carried that burden, the court is to view the evidence in a light most favorable to the nonmoving party and to draw all reasonable inferences in favor of that party. To defeat a properly supported summary judgment motion, the nonmoving party must present "substantial evidence" creating a genuine issue of material fact-"evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." Ala. Code 1975, § 12-21-12 ; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala. 1989).'
" Capital Alliance Ins. Co. v. Thorough-Clean, Inc., 639 So.2d 1349, 1350 (Ala. 1994). Questions of law are reviewed de novo. Alabama Republican Party v. McGinley, 893 So.2d 337, 342 (Ala. 2004)."

Pritchett v. ICN Med. Alliance, Inc., 938 So.2d 933, 935 (Ala. 2006).

As the trial court wrote in its judgment:

"This case turns on whether [Thomas's] policy required her to (1) submit medical bills showing whether or not she received payment from other insurance; (2) sign and submit the proof of loss[/medical authorization] form to Safeway; and (3) notify Safeway of any potential settlement discussions with the underlying tortfeasor[, Square]. If [Thomas's] policy required her to do any one of the three requirements, [Thomas] cannot recover from Safeway for breach of contract or bad faith."

As noted, the trial court found that Thomas had failed to meet any of the three conditions. On appeal, Thomas asserts that none of those bases justify the trial court's decision to enter the summary judgment.

First, Thomas contends that the trial court's finding that Thomas refused to submit medical bills showing payments by other insurers is not supported by the record. She contends that, although Safeway had every right to request documentation that her unpaid medical bills totaled $530.52, it never requested such information. Thomas states that Safeway told her that her med-pay claim would not be paid because she had not submitted a signed proof-of-loss/medical-authorization form. Therefore, Thomas says, it cannot now claim that her failure to provide documentation to support her med-pay claim barred her recovery.

We do not find Thomas's argument persuasive. To ensure that a claim is paid, Thomas's policy requires her to comply with its terms. In the portion of the policy that sets forth the insured's duties, the conditions precedent and duties of the insured that must be met before the insured can take legal action against Safeway are set forth as follows:

"A person seeking coverage under this policy must comply fully with all the terms of this policy before any obligation for payment arises, and there can be no action taken against us without and until compliance with all conditions and terms of this policy by the person(s) seeking coverage hereunder. No legal action may be brought against us until there has been full compliance with all the terms of this policy.... ''

Furthermore, as the trial court pointed out in its judgment, the general-duties section of the policy specifically requires that Thomas (1) provide Safeway with all information it requests; (2) fill out all proof-of-loss forms and other forms Safeway requires; (3) provide and execute authorization forms for the release of medical records; and (4) make a complete and accurate disclosure to Safeway of all information it requests. Additionally, the judgment noted the language, set forth above, requiring Thomas to give Safeway a medical authorization.

It is well settled that

"an insured must comply with his or her post-loss obligations when the insured is making a claim upon the insurer, and meeting those obligations is a precondition to any duty on the part of the insurer to make a loss payment. See [Nationwide Ins. Co. v.] Nilsen, [745 So.2d 264 (Ala. 1998) ] ; Akpan v. Farmers Ins. Exch., Inc., 961 So.2d 865, 872 (Ala. Civ. App. 2007). '[T]he obligation to pay or to evaluate the validity of the claim does not arise until the insured has complied with the terms of the contract with respect to submitting claims.' United Ins. Co. of America v. Cope, 630 So.2d 407, 411 (Ala. 1993). '[N]o case from this Court places on an insurance company an obligation to either investigate or pay a claim until the insured has complied with all of the terms of the contract with respect to submitting claims for payment.' 630 So.2d at 412 ; see also Reeves v. State Farm Fire & Cas. Co., 539 So.2d 252, 254 (Ala. 1989) ('Our cases have consistently held ... that the failure of an insured to comply within a reasonable time with such conditions precedent in an insurance policy requiring the insured to give notice of an accident or occurrence releases the insurer from obligations imposed by the insurance contract.')."

Baldwin Mut. Ins. Co. v. Adair, 181 So.3d 1033, 1045 (Ala. 2014).

Thomas does not dispute that she did not provide Safeway with a signed proof-of-loss/medical-authorization form and other proper documentation to support her claim under the med-pay provision of the policy. Furthermore, in addition to the explicit terms of the policy, the record contains a number of instances in which Safeway, by letter or in conversations between Safeway employees and Thomas and/or her attorney, asked Thomas to provide it with the necessary documentation to support her claim for payment. As Safeway points out, Thomas refused to sign the proof-of-loss/medical-authorization form that would have allowed Safeway itself to obtain the necessary medical records to investigate and pay her claim. After reviewing the record before us, we disagree with Thomas's assertion that the record does not support the trial court's finding that Thomas failed to provide the necessary documentation to support her claim. The record does not support Thomas's contention that "the record is void" of any request for documentation demonstrating the amount of medical bills for which Thomas would be responsible after other types of insurance coverage was exhausted. Thus, because Thomas failed to meet her obligations and duties under the policy, Safeway did not have an obligation to pay the claim.

Relying on the doctrine of anticipatory breach, Thomas also argues that she was not required to present documentation to support her med-pay claim. Our review of the record shows that Thomas did not make this argument before the trial court. In her reply brief to this court, Thomas contends that, in her brief to the trial court in opposition to the motion for a summary judgment, she stated:

"As indicated above, though, Safeway did not request this [collateral-source] information, and in fact had explicitly told [Thomas] the two reasons for their failure to pay the medical payments benefits, neither of which included the lack of this information."

She states that "[t]his argument is essentially the equivalent of the argument of anticipatory breach." Our supreme court explained the elements of an anticipatory breach in Shirley v. Lin, 548 So.2d 1329, 1334 (Ala. 1989), writing:

"The following rules concerning anticipatory breach, or repudiation of a contract have been recognized in Alabama:
" 'To amount to a renunciation, ... the evidence must show words or acts evincing an intention to refuse performance within the future time allowed by the contract.
" '... "Merely because a given act or course of conduct of one party to a contract is inconsistent with the contract is not sufficient; it must be inconsistent with the intention to be ... bound by it."
" '....
" ' "Repudiation, among other things, means rejection, disclaimer, renunciation, or even abandonment." ...
" 'Some authorities state that the repudiation by one party "must at least amount to an unqualified refusal, or declaration of inability, substantially to perform according to the terms of his obligation.'' '
" Draughon's Business College v. Battles, 35 Ala.App. 587, 590, 50 So.2d 788, 790 (1951) (emphasis added) (citations omitted). Once a party to a contract repudiates the agreement, the other party is excused from further performance. Denver-Albuquerque Motor Transport, Inc. v. Green, 57 Ala.App. 709, 712, 331 So.2d 719, 722 (1976) ; Mid-State Homes, Inc. v. Brown, 47 Ala.App. 468, 473, 256 So.2d 894, 898 (1971)."

After reviewing the above requirements needed for a finding of an anticipatory breach, we conclude that the basis for Thomas's argument as to this issue is not apparent from the paragraph Thomas quoted from her brief in opposition to the motion for a summary judgment. That language is certainly insufficient to put the trial court on notice that Thomas was advancing the legal theory of anticipatory breach. There is no requirement that a trial court must guess all of the possible legal arguments a party can make from a given set of facts. We do not agree with Thomas that she advanced the argument of anticipatory breach before the trial court.

"[T]he trial court cannot be reversed on any ground or argument not presented for or against the motion [for a summary judgment]." Ex parte Ryals, 773 So.2d 1011, 1013 (Ala. 2000). "It is well settled that an appellate court may not hold a trial court in error in regard to theories or issues not presented to that court." Allsopp v. Bolding, 86 So.3d 952, 962 (Ala. 2011). Because Thomas did not present the theory of anticipatory breach to the trial court, we will not reverse the judgment on that ground.

Thomas also argues that her refusal to sign the proof-of-loss/medical-authorization form is not a valid basis for the trial court's determination that she failed to meet the conditions precedent to payment of her benefits under the policy. She claims she was not obligated to sign the proof-of-loss/medical-authorization form because, she says, the first sentence of the sworn-statement portion of the form would have required her to assign and transfer to Safeway some of her rights against Square, the driver of the other automobile involved in the accident resulting in Thomas's claim. Such an assignment, Thomas asserts, was not required by the terms of the policy itself, which required only subrogation of her rights. Therefore, she said, the language of the sworn statement "materially differed" from the policy, to her detriment.

The sentence to which Thomas takes exception reads:

"To the extent of the payment made or advanced under this policy, the [insured] hereby assigns, transfers and sets over to the insurance company all rights, claims or interests that he/she has against any person, firm or corporation liable for the medical or funeral services for which payment is made or advanced."

In her appellate brief, Thomas asserts that, under Broadnax v. Griswold, 17 So.3d 656, 659-60 (Ala. Civ. App. 2008), "where there is a right of subrogation, an insured maintains the right of recovery, but that recovery is subject to the right of subrogation. However, where there is an assignment the insured loses the right of recovery and does not have standing to bring a lawsuit against the insured [sic]." (It appears that Thomas meant that, if she signed the proof-of-loss/medical-authorization form, she would not have standing to bring a lawsuit against the tortfeasor, Square.)

In its judgment, the trial court correctly and succinctly distinguished Broadnax from the instant case, writing:

"[Thomas's] argument that she was not required to sign the form because it would amount to an assignment of her rights is inapposite. She cited to Broadnax v. Griswold, wherein the Alabama Court of Civil Appeals discussed the difference between an assignment and subrogation. 17 So.3d 656. The language in question in Broadnax provided in part that, 'If any person to or for whom we make payment ... has rights of recovery from another, those rights are transferred to us.' Id. at 658. There are no qualifiers to this language. The Safeway proof of loss form, however, is qualified by phrases such as 'to the extent of the payment made or advanced under this policy,' 'the insured hereby assigns, transfers and sets over ... all rights claims or interests that he/she has against any ... liable for the medical or funeral services for which payment is made or advanced.' (Emphasis added.) The Safeway proof of loss form therefore only requires Ms. Thomas to protect Safeway's subrogation interest to the extent that Safeway makes payment to her for 'medical expenses.' It does not amount to a transfer or waiver of all of her rights under the policy to pursue the tortfeasor."

(Footnote omitted.)

We agree with the trial court's reading of Broadnax and conclude that the language of which Thomas complains in the sworn statement of the proof-of-loss/medical-authorization form did not require her to assign her claim against the tortfeasor, Square, to Safeway. Thus, Thomas had no valid or legitimate reason to refuse to sign the proof-of-loss/medical-authorization form. The evidence is undisputed that Safeway requested numerous times over two years that Thomas submit a completed and executed proof-of-loss/medical-authorization form and sent her several copies of the form so that she could comply. By refusing to sign that form as directed, Thomas failed to comply with the duties she had under the terms of the policy. Accordingly, Safeway had no obligation to pay Thomas's claim. Adair, supra.

Because we have determined that Thomas failed to comply with at least two of her duties under the terms of the policy, thereby failing to initiate Safeway's obligation to pay the claim, we need not address her argument that, by reaching a settlement with and releasing the tortfeasor, Square, she did not bar her claim for med-pay benefits.

Finally, Thomas argues that the trial court erred in entering a summary judgment in favor of Safeway on her bad-faith claim. However, in her brief on appeal, she also recognizes that, if this court affirms the judgment as to the claim alleging breach of contract, the bad-faith claim cannot be sustained.

"The elements of a cause of action for a bad-faith refusal to pay an insurance claim were set out in National Security Fire & Casualty Co. v. Bowen, 417 So.2d 179 (Ala. 1982) :
" '[T]he plaintiff in a "bad faith refusal" case has the burden of proving:
" '(a) an insurance contract between the parties and a breach thereof by the defendant;
" '(b) an intentional refusal to pay the insured's claim;
" '(c) the absence of any reasonably legitimate or arguable reason for that refusal (the absence of a debatable reason);
" '(d) the insurer's actual knowledge of the absence of any legitimate or arguable reason;
" '(e) if the intentional failure to determine the existence of a lawful basis is relied upon, the plaintiff must prove the insurer's intentional failure to determine whether there is a legitimate or arguable reason to refuse to pay the claim.
" 'In short, plaintiff must go beyond a mere showing of nonpayment and prove a bad faith nonpayment, a nonpayment without any reasonable ground for dispute. Or, stated differently, the plaintiff must show that the insurance company had no legal or factual defense to the insurance claim.'
" Id. at 183 (first emphasis added). See also Chavers v. National Sec. Fire & Cas. Co., 405 So.2d 1 (Ala. 1981). Thus, a breach of the insurance contract is an element of a bad-faith-refusal-to-pay claim."

Ex parte Alfa Mut. Ins. Co., 799 So.2d 957, 962 (Ala. 2001).

As discussed, because Thomas did not comply with all of the terms of her policy with respect to submitting her claim for med-pay benefits, Safeway did not have an obligation or duty to pay that claim. Adair, supra. Because Safeway had a reasonably legitimate reason not to pay the claim for med-pay benefits, Thomas's claim alleging bad faith cannot be sustained.

Thomas has failed to demonstrate that the trial court erred in entering the summary judgment in favor of Safeway. Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.

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

      Several documents submitted to the trial court indicate that the accident occurred on November 12, 2013. However, the Alabama Uniform Traffic Accident Report completed at the time of the accident shows that it happened on November 11, 2013.


source: Caselaw Access Project

license: Public Domain

text:
    Melissa Tankersley WELLS v. Wesley TANKERSLEY
    2160224
    Court of Civil Appeals of Alabama.
    August 11, 2017
    Dan J. Willingham of Fuller, Willingham, Fuller & Carter, LLC, Cullman, for appellant.
    Submitted on appellant's brief only.
   THOMPSON, Presiding Judge.

Melissa Tankersley Wells ("the mother") and Wesley Tankersley ("the father") were divorced by a November 2013 judgment of the Cullman Circuit Court ("the trial court"). The divorce judgment, among other things, awarded the mother sole physical custody of the minor child born of the parties' marriage, subject to the father's rights of visitation. That divorce judgment was based upon an agreement reached by the parties.

Sometime later, the parties reached another agreement, which formed the basis for a January 2015 modification judgment that increased the amount of time the father could exercise visitation with the child. Although that January 2015 modification judgment made no change with regard to the nature of the parties' custody, it is undisputed that the increased visitation awarded to the father as a result of that judgment meant that the parties shared almost equal parenting time with the child.

In November 2015, the father filed a petition seeking to modify custody of the child and seeking an award of sole physical custody. The mother answered and counterclaimed, seeking to reduce the father's visitation with the child and also seeking an increase in the father's child-support obligation.

The trial court conducted an ore tenus hearing on November 3, 2016. On November 7, 2016, the trial court entered a judgment in which it, among other things, modified custody to award the father sole physical custody of the child and ordered the mother to pay child support. In that November 7, 2016, modification judgment, the trial court also awarded the mother visitation with the child, but it placed restrictions on that visitation award until the mother attended a domestic-violence class and her new husband attended anger-management classes. Although the trial court did not explicitly address the mother's counterclaims seeking a reduction in the father's visitation and an increase in an award of child support, those requests are incompatible with the relief granted by the trial court, and, therefore, we conclude that those claims were implicitly denied. Wellborn v. Wellborn, 100 So.3d 1122, 1126 (Ala. Civ. App. 2012) ; J.D. v. Lauderdale Cty. Dep't of Human Res., 121 So.3d 381, 384 (Ala. Civ. App. 2013). The mother filed a postjudgment motion, which the trial court denied. The mother timely appealed to this court.

The evidence from the ore tenus hearing indicates the following facts. The father testified that the parties married in May 2000, and their child was born in March 2011. The parties divorced in November 2013. At the time of the November 3, 2016, hearing on the merits of this action, the child was five years old and had recently started kindergarten.

The father testified that, following their divorce in November 2013 through June 2015, he and the mother had amicably co-parented the child. The record indicates that, in June 2015, the mother and the child began to live with the mother's then boyfriend, Calvin Dwight Wells ("Wells"). The father stated that, thereafter, he and the mother stopped communicating as well as they had before her relationship with Wells.

The father testified that, in the spring of 2015, he and the mother had planned for the child to attend a school close to the father's house so that he could pick up the child after the father's workday ended at 3:00 p.m. However, the mother, on June 22, 2015, withdrew the child's application for enrollment in that school, and she later enrolled the child in another school that was closer to the mother's home. The father stated that, at approximately the same time, the mother lost her job. The mother denied that she was fired from that employment, and she answered in the negative the father's questions regarding whether Wells had played a part in the termination of her employment. However, the father submitted into evidence text messages between the mother and him that indicated that the mother believed that Wells had interfered in her employment at some point.

The father testified that, during the fall of 2015, the mother temporarily moved out of Wells's home on two occasions and that, on both occasions, she had asked the father to take the child for several days. The father testified that the mother told him that Wells had "kicked her out" and that Wells was controlling and verbally abusive. According to the father, the mother once told him that Wells had "flattened" the tires on her vehicle. The father also stated that the mother had told him that Wells had referred to the child as a "brat" and that the child had to stay in her room a lot in the home the mother and the child shared with Wells.

The mother testified that she had left Wells's home only once, in October 2015, and that she had done so on her own initiative. The mother testified that she moved in with Wells in June 2015 and that, at that time, Wells's three oldest children were living with him. She stated that the stress of that living situation caused her to leave for a short period in October 2015. She denied that Wells had ever kicked her out of the house or that he had been abusive. The mother also denied that she had told the father that Wells was controlling or abusive. The mother testified that she had lived with her mother ("the maternal grandmother") for a few weeks before returning to Wells's home.

In April 2016, the mother and Wells were involved in a confrontation. The father testified that the mother told him that she heard Wells slapping the child on the thigh and that she had attempted to intervene on behalf of the child. According to the father, the mother told him that, when she did so, Wells choked her and pushed her to the floor and that she and the child ran to a neighbor's house for help. The father said that the mother told him that she had been frightened that Wells would kill her during that incident.

Following that incident, the mother filed in the trial court a petition for protection from abuse against Wells. In that petition, the mother stated that on April 10, 2016, Wells had "grabbed [her] hair and face, leaving multiple scratches," and that Wells had "threatened to kill [her] if [she] ever had the police involved." In that petition for protection from abuse, the mother further alleged:

"[Wells] slapped me in the face [five] days prior to this incident in front of my child. He left a very large red handprint on the left side. He has also pulled large quantities of my hair out during a verbal disagreement. In January, he shoved me over a chair and bit my left cheek. He constantly threatens to hit me and tells me I need a man to put me in my place."

The mother did not prosecute the protection-from-abuse action, and it was dismissed. At the hearing on the merits of this custody action, the mother denied that Wells abused her. When questioned about the details of the above-quoted paragraph contained in her protection-from-abuse petition, the mother stated that Wells had unintentionally slapped her in reaction to her having surprised him by hitting him with a towel. The mother admitted that, during one confrontation between Wells and her, Wells had bitten her face. The mother stated that she was unable to recall the details of another incident in which she had alleged that Wells had pulled out some of her hair. With regard to that incident, she stated that Wells had reacted when he had decided their disagreement should end but she would not stop arguing; she stated that she probably should have left Wells alone. The mother denied telling the father that Wells had been abusive toward her.

With regard to the April 10, 2016, incident, in her testimony before the trial court in this action, the mother denied that Wells had hurt the child. She stated that she intervened on the child's behalf by running at Wells "aggressively," but she denied that Wells struck her when she did so. The mother stated at the hearing on the merits of this action that she did not believe that she needed protection from Wells and that the child and Wells had a "good relationship up until-until the end."

Regardless, following the April 10, 2016, incident, the Cullman County Department of Human Resources ("DHR") instituted a safety plan pursuant to which the mother agreed that the child would not be in the presence of Wells or the mother's brother. The father filed a motion for pendente lite custody of the child in this modification action, and the trial court conducted a pendente lite hearing on April 21, 2016. On April 22, 2016, the trial court entered a pendente lite custody order based on an agreement reached by the parties. That April 22, 2016, order directed, among other things, that the parties abide by the January 2015 custody-modification judgment, with the proviso that the mother keep the child out of the presence of Wells and her brother.

The record contains a statement, handwritten and signed by the mother, dated April 28, 2016, in which the mother stated: "I, Melissa Tankersley, agree to give Wesley Tankersley full custody of our daughter ... if I get back in a relationship with [Wells]." The father testified that the statement was the mother's idea and that she wrote and signed it voluntarily. The mother testified that she signed that April 28, 2016, statement after the "temporary hearing" in this action because she felt that if she did not, the father would "do anything" to take custody of the child from her. We note that nothing in the record indicates that the trial court considered that handwritten statement to be binding, but, rather, it appears that it was treated as evidence of the parties' interactions.

Within a few days of signing the April 28, 2016, handwritten statement, the mother reunited with Wells, and she became engaged to him in June 2016. The mother discovered that she was pregnant with Wells's child in August 2016, and it appears that they married soon after that discovery, although the date on which the marriage occurred is not set forth in the record.

The mother testified that she moved into a rental home owned by Wells that is located across the street from Wells's home. She testified that she lives in that rental home when the child is in her custody but that she lives with Wells during periods when the child is with the father.

The mother testified that she wanted the restriction that the child not be around Wells removed. She stated that she did not feel that Wells had physically abused her. The mother further testified that she believed that Wells had changed dramatically in the months between the April 10, 2016, incident and the November 3, 2016, hearing on the father's custody-modification petition. The mother attributed that change to Wells's working "within himself"; she admitted that he had not attended counseling or anger-management sessions. The mother testified that she saw no problem with Wells being around the child. The mother also alleged that the father had been aggressive toward her during their relationship. She also testified that, during one visitation exchange after the parties' divorce, the father had "busted" her lip during a fight between them. The father denied the mother's abuse allegations.

Wells testified during the custody hearing. He stated that he has five children, not including the one with whom the mother was then pregnant. Wells stated that he pays child support only for the oldest three, but he stated that he had allowed the fourth child and the mother of that fourth child to reside in the rental home on his property without paying rent. Wells admitted that he had never seen the fifth child.

The mother and Wells admitted that they were arrested on June 22, 2016, as a result of a confrontation with the mother of Wells's fourth child as that woman moved from the rental home into which the mother now resides when the child is in her custody. The mother admitted that charges related to harassment and striking the woman were pending against her at the time of the November 3, 2016, hearing, and, on her attorney's advice, the mother declined to testify regarding that incident. It is not clear what charges resulting from that incident remained pending against Wells at the time of that hearing.

Wells denied all allegations that he had abused the mother. Wells did not deny that he had bitten the mother once, but he stated that he had never left marks on her. He also stated that he did not recall ever threatening the mother. During his testimony, Wells admitted to "talking rough" to a female DHR social worker who investigated a claim of abuse that resulted after he disciplined one of his three older children, and he admitted that DHR found that incident to be indicated for abuse. Wells admitted that he had not seen his oldest three children since November 2015 and that he had not seen the fourth child since the June 2016 incident.

The father alleged that the mother had moved frequently after the parties' divorce. The record indicates that the mother initially left the marital home to live with the maternal grandmother, that she then moved in with Wells, and that she briefly left Wells's home either once or twice in 2015 to live, temporarily, with the maternal grandmother. The mother and Wells were also separated for two to three weeks following the April 2016 incident.

The father testified that he has resided at the same address for the last 12 years in a 3-bedroom, 2-bath mobile home. The father owns 72 acres of land that is adjacent to properties owned by his mother and his brother. The father testified that his brother has children who are close in age to the child and that his extended family enjoys family activities and attending church together.

The father has had the same employer for the last ten years, and he has health-insurance coverage for the child through his employer. The father stated that he works each day until 3:00 p.m. and that, immediately following the end of his work shift, he picks up the child from school. His mother transports the child to school if he is working. The father testified that if he were awarded custody, he would pay the out-of-district fee and let the child remain in her current school for kindergarten, but that he would move her to the school closer to his home for her first-grade year.

The mother had worked as a dental assistant at two different practices until September 2015, when she quit her employment to manage a chicken farm located on Wells's property.

The trial court, in entering its November 7, 2016, judgment, noted that the divorce judgment had awarded the parties joint legal custody of the child but had awarded the mother "primary physical" custody. The trial court correctly interpreted that custody award as one awarding the mother sole physical custody of the child. § 30-3-151(5), Ala. Code 1975; Smith v. Smith, 887 So.2d 257, 261-62 (Ala. Civ. App. 2003). The trial court further noted that because the January 2015 modification judgment did not modify the custody determination in the divorce judgment, the father was required to meet the standard set forth in Ex parte McLendon, 455 So.2d 863 (Ala. 1984), in order to obtain a modification of custody of the child. See Walker v. Lanier, 180 So.3d 39, 42 (Ala. Civ. App. 2015) ("The law is well settled that '[a] parent seeking to modify a custody judgment awarding primary physical custody to the other parent must meet the standard for modification of custody set forth in Ex parte McLendon.' "); Bishop v. Knight, 949 So.2d 160, 166 (Ala. Civ. App. 2006) (same). The McLendon standard requires that

"the noncustodial parent seeking a change of custody must demonstrate (1) 'that he or she is a fit custodian'; (2) 'that material changes which affect the child's welfare have occurred'; and (3) 'that the positive good brought about by the change in custody will more than offset the disruptive effect of uprooting the child.' Kunkel v. Kunkel, 547 So.2d 555, 560 (Ala. Civ. App. 1989) (citing, among other cases, Ex parte McLendon, 455 So.2d 863, 865-66 (Ala. 1984) (setting forth three factors a noncustodial parent must demonstrate in order to modify custody))."

McCormick v. Ethridge, 15 So.3d 524, 527 (Ala. Civ. App. 2008).

In its November 7, 2016, modification judgment, the trial court found that the father had met the McLendon standard. The mother argues on appeal that the evidence does not support that finding. The mother argues that the "only" evidence before the trial court that might justify a custody modification was the testimony that Wells had "spanked" the child, and she asserts that that evidence was not sufficient to meet the McLendon standard. We do not agree with the mother's characterization of the evidence. Although the mother and Wells minimized how hard he hit or slapped the child, that contact prompted the mother to rush toward him in a manner she characterized as "aggressive[ ]." Further, most of the evidence focused on the nature of the relationship between the mother and Wells. In support of his contention that that relationship involved domestic violence and was not a safe environment for the child, the father presented his own testimony, evidence concerning the mother's petition for a protection-from-abuse order against Wells, and the mother's April 28, 2016, statement indicating she would transfer custody to him if she resumed her relationship with Wells. In her testimony, the mother denied the abuse allegations, or minimized them, saying that some of the alleged abuse was her fault. After seeking the protection-from-abuse order, and while this custody action was pending, the mother resumed her relationship with Wells and became engaged to him shortly thereafter. At approximately the same time she became engaged to Wells, the mother and Wells were involved in a confrontation with the mother of one of Wells's children that resulted in the mother's arrest; charges stemming from that arrest were still pending against the mother at the time of the November 3, 2016, hearing. Wells testified at the hearing and denied the abuse allegations. Although this court did not have the trial court's advantage of observing Wells as he testified, we note that the transcript indicates that some of Wells's testimony appeared to be evasive or defensive.

In its November 7, 2016, modification judgment, the trial court did not make specific findings of fact, although the nature of its visitation award, which was subject to certain restrictions, indicates that it determined that there were issues of domestic violence in the mother's relationship with Wells. Even in the absence of factual findings on the issue of custody, this court must assume that the trial court made the findings necessary to support its judgment, and we are not allowed to reweigh the evidence.

Ex parte Patronas, 693 So.2d 473, 475-76 (Ala. 1997). Although the mother denied that her relationship with Wells was abusive, the trial court, as the trier of fact, was in the best position to resolve the disputes in the evidence. Dickinson v. Suggs, 196 So.3d 1183, 1189 (Ala. Civ. App. 2015). The evidence supports a determination that the mother's relationship with Wells has had issues of domestic violence. The record also indicates that, in spite of an order restricting the mother's visitation with the child that prevented the child from having contact with Wells, the mother has continued her relationship with Wells.

" ' "A custody determination of the trial court entered upon oral testimony is accorded a presumption of correctness on appeal, and we will not reverse unless the evidence so fails to support the determination that it is plainly and palpably wrong...." ' Ex parte Perkins, 646 So.2d 46, 47 (Ala. 1994), quoting Phillips v. Phillips, 622 So.2d 410, 412 (Ala. Civ. App. 1993) (citations omitted). This presumption is based on the trial court's unique position to directly observe the witnesses and to assess their demeanor and credibility. This opportunity to observe witnesses is especially important in child-custody cases. 'In child custody cases especially, the perception of an attentive trial judge is of great importance.' Williams v. Williams, 402 So.2d 1029, 1032 (Ala. Civ. App. 1981)."

Ex parte Fann, 810 So.2d 631, 633 (Ala. 2001).

The father maintained that the nature of the mother's relationship with Wells, and the resultant lack of stability in the mother's life, constituted a material change in circumstances that warranted a modification of custody, and the evidence supports that contention. The father presented evidence indicating that he has a stable home and employment, as well as nearby family support. The parties reside near each other, and the father testified that, in an effort to provide the child stability, he would pay fees necessary for her to continue in her current school rather than make her change schools midyear. Given the presumption of correctness in favor of the trial court's judgment based on its receipt of ore tenus evidence, we cannot say that the mother has demonstrated that the trial court erred in determining that the father had met the McLendon standard and in granting his petition for a modification of custody of the parties' child.

The mother also argues that the trial court erred in its award to her of visitation with the child. In its November 7, 2016, judgment, the trial court awarded the mother a standard schedule of alternating weekend visitation and one afternoon each week, and it awarded the mother additional visitation periods during holidays and each summer. The mother maintains that the trial court "reduced" her visitation with the child. However, before the entry of the November 7, 2016, modification judgment, the mother had sole physical custody of the child and the father had rights of visitation. Accordingly, there was no earlier award of visitation to the mother that could be reduced.

The mother's argument regarding her purportedly reduced visitation is actually an argument that her custodial periods are shorter than those the father had enjoyed under the previous, January 2015, modification judgment, pursuant to which she had sole physical custody of the child but shared approximately equal parenting time with the father. The mother argues that the visitation award in the November 7, 2016, modification judgment affords her too little time with the child and does not serve the child's best interests. An award to the mother of the same amount of visitation as that enjoyed by the father under the January 2015 modification judgment would allow the parents to continue to share almost equal parenting time; in other words, the effect, in practice, would result in little to no modification of the earlier custodial and visitation arrangement. This court has already affirmed the trial court's determination that a change in custody was warranted under the facts of this case.

Also, in reviewing an award of visitation to a noncustodial parent, this court has held that "[v]isitation, like custody, is a matter that rests soundly within the broad discretion of the trial court, and its determination regarding visitation must be affirmed absent a finding that the judgment is not supported by any credible evidence, and that the judgment, therefore, is plainly and palpably wrong." Cohn v. Cohn, 658 So.2d 479, 482 (Ala. Civ. App. 1994). A trial court determines an award of visitation based on the specific facts of each case, and, in doing so, it is guided by the children's best interests. Carr v. Howard, 777 So.2d 738, 741-42 (Ala. Civ. App. 2000).

In her counterclaim in this action, the mother sought a reduction in the father's visitation under the earlier, January 2015, modification judgment, because, she maintained, the amount of visitation the father enjoyed was "disadvantageous" to the child because the child was, at the time the counterclaim was filed, about to start school. The trial court, in reaching its visitation award, also could have considered the child's being in school, and the resultant need for a more stable schedule, in fashioning its visitation award in its November 7, 2016, modification judgment.

The trial court awarded the mother a fairly standard schedule of visitation with the child. Given the facts of this case and this court's affirmance of the modification of custody, we cannot agree with the mother that the trial court erred in failing to order a visitation schedule that would afford her almost equal parenting time with the father.

As part of her argument on the issue of visitation, the mother also challenges the restrictions the trial court placed on her visitation. In that part of its November 7, 2016, judgment addressing the issue of visitation, the trial court first set forth the standard schedule of visitation awarded to the mother and then stated:

" 'The trial court is entrusted to balance the rights of the parents with the child's best interests to fashion a visitation award that is tailored to the specific facts and circumstances of each individual case.' Nauditt v. Haddock, 882 So.2d 364, 367 (Ala. Civ. App. 2003). 'Once the trial court has identified a particular danger to the health, safety, or welfare of the child, and the record establishes that some restriction on visitation is necessary to protect the child, it must mold its visitation order to target that specific concern.' Jackson v. Jackson, 999 So.2d 488, 494 (Ala. Civ. App. 2007). Based on the evidence presented at trial, the court finds it necessary to place the following restrictions on visitation.
"(i) The mother shall not allow the parties' child to have any contact or communication with [Wells] until such time as Wells has completed DVIP classes through Victim's Services of Cullman.[ ] Within 30 days of [Wells]
completing the domestic-violence program, the mother shall provide the Cullman County Circuit Court Clerk with a copy of Wells's certificate of completion issued by Victim's Services, and [the child] may thereafter be allowed contact and communication with [Wells], subject to the remaining restrictions found herein. It is further ordered that within 30 days of this order, the mother shall enroll in and timely complete the Batterers Intervention Program offered by Victim's Services of Cullman. Within 30 days of completing the program, the mother shall file with the Cullman Circuit Court Clerk a copy of her program certification of completion.
"(ii) The mother shall not at any time permit her current husband, [Wells], to administer corporal punishment of any sort to the parties' minor child. Any corporal punishment of [the child] may only be administered by the mother or father."

This court has held that a noncustodial parent's visitation rights may be restricted " 'in order to protect children from conduct, conditions, or circumstances surrounding their noncustodial parent that endanger the children's health, safety, or well-being.' " B.F.G. v. C.N.L., 204 So.3d 399, 404 (Ala. Civ. App. 2016) (quoting Pratt v. Pratt, 56 So.3d 638, 641 (Ala. Civ. App. 2010) ). However, a restriction on a noncustodial parent's visitation must not " 'do[ ] more than necessary to protect the children.' " Id. See also Norrell v. Norrell, 473 So.2d 523, 525 (Ala. Civ. App. 1985) ("When justified and supported by the evidence or reasonable inferences therefrom, a trial court cannot be faulted in visitation matters for being reasonably careful in establishing restrictions upon the visitation rights of a parent so as to attempt to assure a young child's safety and welfare.").

The mother maintains that the restrictions on her visitation are unreasonable and are punitive in nature, rather than designed to protect the child. She points out that in Jackson v. Jackson, 999 So.2d 488 (Ala. Civ. App. 2007), this court reversed an award of supervised visitation to the wife, who was the noncustodial parent. That award of supervised visitation had been imposed because the evidence indicated that the wife had used illegal drugs and had allowed her former boyfriend, who also used illegal drugs, to be around the children during her visitation. The main opinion noted that there was no evidence that the children's contact with the former boyfriend had harmed the children. 999 So.2d at 494. However, in reversing the award of supervised visitation, the main opinion stated that, although the award of supervised visitation was an overly broad restriction on the wife's visitation, the trial court, on remand, was free to fashion more appropriate restrictions on her visitation. The opinion concluded:

"[T]he trial court did not tailor the visitation award to the particular dangers at issue. Presumably, the trial court found that the wife's former boyfriend's influence and the wife's purported use of marijuana posed a threat to the best interests of the children. If so, the trial court should have tailored its visitation order to address those concerns, such as by requiring the wife to exercise visitation in the absence of her former boyfriend and by ordering the wife not to expose the children to illegal drug use, activity, or associated conversation. The trial court used overly broad means-supervised visitation-to accomplish those goals."

Jackson v. Jackson, 999 So.2d at 495.

The mother in this case contends that there was no harm to the child shown in this case as a result of her exposure to Wells, and, therefore, she argues, the visitation restrictions imposed by the trial court are too broad. However, the authorities discussing restrictions on a parent's visitation do not require that a child be harmed before a restriction on visitation be imposed. Rather, in those cases in which the courts have considered visitation restrictions, the courts have examined whether there are circumstances that could endanger the child. See, e.g., Jackson v. Jackson, 999 So.2d at 494 ("Once the trial court has identified a particular danger to the health, safety, or welfare of the child, and the record establishes that some restriction on visitation is necessary to protect the child, it must mold its visitation order to target that specific concern."); Pratt v. Pratt, 56 So.3d at 642 (affirming an award of supervised visitation "[b]ecause the trial court reasonably could have concluded that supervised visitation was necessary to protect the children from an unreasonable risk of physical or emotional harm ...."); and Lee v. Lee, 49 So.3d 211, 214-15 (Ala. Civ. App. 2010) (affirming an award of supervised visitation because of the threat that the noncustodial parent might attempt to leave the country with the child).

In April 2016, Wells disciplined the child in a manner that caused the mother to intervene by acting "aggressively" against him. Wells has been deemed "indicated" by DHR for abuse of one of his three oldest children when he disciplined that child, and he has not seen the three oldest children since that incident. The record contains other evidence supporting a conclusion that there is domestic violence in the relationship between the mother and Wells. The record also supports a conclusion that, even with regard to the incident in which Wells disciplined the child, the mother has found excuses for his conduct and minimized it.

In fashioning its restrictions on the mother's visitation, the trial court specified that, until both the mother and Wells attended classes about domestic violence, the child cannot be in contact with Wells. Thereafter, the mother may not allow Wells to use corporal punishment in disciplining the child. Thus, unlike in Jackson v. Jackson, supra, the trial court in this case did not place a broad restriction on the mother's visitation. Rather, it is clear from the language of that part of the November 7, 2016, modification judgment pertaining to visitation that the trial court carefully considered the evidence presented to it, the mother's right to visitation, and the child's best interests. We conclude that, given the facts of this case, the visitation restrictions imposed by the trial court are narrowly tailored to address the issues that pose a danger to the child and that those restrictions do no more than necessary to protect the child. Pratt v. Pratt, supra.

The mother also argues that the trial court erred in determining her child-support obligation. An award of child support is governed by the mandatory application of the Rule 32, Ala. R. Jud. Admin., child-support guidelines. Thomas v. Norman, 766 So.2d 857, 859 (Ala. Civ. App. 2000). Rule 32 requires that the parties submit the child-support forms referenced in Rule 32(E) to the trial court and that the trial court reference those forms in its judgment. In this case, the father submitted a CS-41 income-affidavit form, which is one of the forms required by Rule 32(E). The father also testified regarding his hourly wage, the number of hours he typically worked, and the cost of the health insurance he provided for the child through his employer.

The mother failed to submit any child-support forms to the trial court. She testified regarding her hourly wage at her former employers, but she stated that she had quit her employment to work on the farm owned by Wells.

The trial court did not reference a CS-42 child-support form in its judgment. See Rule 32(E), Ala. R. Jud. Admin. Therefore, the amount the trial court determined constituted the father's gross income and the amount of income it determined the mother earned, or, alternatively, the amount of income it imputed to the mother, are not clear from the record. See G.B. v. J.H., 915 So.2d 570, 574 (Ala. Civ. App. 2005) (holding that a trial court may impute income to a parent, pursuant to Rule 32(B)(5), Ala. R. Jud. Admin.).

" 'The trial court is not bound by the income figures advanced by the parties, and it has discretion in determining a parent's gross income. However, " '[t]his court cannot affirm a child-support order if it has to guess at what facts the trial court found in order to enter the support order it entered....' " Willis v. Willis, 45 So.3d 347, 349 (Ala. Civ. App. 2010) (quoting Mosley v. Mosley, 747 So.2d 894, 898 (Ala. Civ. App. 1999) ).' Morgan v. Morgan, 183 So.3d 945, 961 (Ala. Civ. App. 2014)."

Walker v. Lanier, 221 So.3d 470, 473-74 (Ala. Civ. App. 2016).

Further,

" ' "[t]his court has held that if the record does not reflect compliance with Rule 32(E) ... (which requires the filing of 'Child Support Obligation Income Statement/Affidavit' forms (Forms CS-41) and a 'Child Support Guidelines' form (Form CS-42)), and if child support is made an issue on appeal, this court will remand (or reverse and remand) for compliance with the rule. See Martin v. Martin, 637 So.2d 901, 903 (Ala. Civ. App. 1994). On the other hand, this court has affirmed child-support awards when, despite the absence of the required forms, we could discern from the appellate record what figures the trial court used in computing the child-support obligation. See, e.g., Dunn v. Dunn, 891 So.2d 891, 896 (Ala. Civ. App. 2004) ; Rimpf v. Campbell, 853 So.2d 957, 959 (Ala. Civ. App. 2002) ; and Dismukes v. Dorsey, 686 So.2d 298, 301 (Ala. Civ. App. 1996). Nevertheless, without the child-support-guidelines forms, it is sometimes impossible for an appellate court to determine from the record whether the trial court correctly applied the guidelines in establishing or modifying a child-support obligation. See Horwitz v. Horwitz, 739 So.2d 1118, 1120 (Ala. Civ. App. 1999)." '
" Harris v. Harris, 59 So.3d 731, 736-37 (Ala. Civ. App. 2010) (quoting Hayes v. Hayes, 949 So.2d 150, 154 (Ala. Civ. App. 2006) )."

Wellborn v. Wellborn, 100 So.3d at 1126.

The record in this case does not demonstrate the manner in which the trial court reached its child-support determination, and this court is unable to determine the manner in which the trial court calculated child support. Accordingly, we reverse that part of the judgment pertaining to child support, and we remand the cause for the trial court to set forth its child-support calculations, including its determinations of the parties' gross incomes, using the child-support forms required by Rule 32(E), Ala. R. Jud. Admin. Wellborn v. Wellborn, supra ; Thomas v. Norman, 766 So.2d 857, 859 (Ala. Civ. App. 2000) ; and Martin v. Martin, 637 So.2d 901, 903 (Ala. Civ. App. 1994).

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

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

Thomas, J., recuses herself.

      In one text message to the father, the mother stated that she "refuse[d] to lose another job due to manipulation and abuse." In later text messages, the mother assured the father that she was not accusing the father of manipulating her and that, in making that statement, she had been referring to Wells.

      The record indicates that the mother's brother, who lives with the maternal grandmother, has a history of drug abuse.

      Those restrictions are discussed in more detail later in this opinion.

      To the extent that the mother might be arguing that the trial court erred in failing to award her joint physical custody of the child, as that term is defined in § 30-3-151(3), we note that, in this opinion, we are affirming the award of sole physical custody to the father in the November 7, 2016, modification judgment.

      The specific name of the "DVIP" classes is not indicated in the record on appeal.

      The main opinion in Jackson was authored by Judge Moore; regarding the issue of visitation in that case, Judge Pittman and Judge Thomas concurred in the result while Presiding Judge Thompson and then Judge Bryan dissented.