author: THOMPSON, Presiding Judge.

text:
    EX PARTE R.E. GARRISON TRUCKING, INC.
    (In re: William D. Hennis v. R.E. Garrison Trucking, Inc.)
    2160556
    Court of Civil Appeals of Alabama.
    June 16, 2017
    T. Cowin Knowles and Allison A. Ingram of Ball, Ball, Matthews & Novak, P.A., Montgomery, for petitioner.
    Marc E. Bradley and Gordon K. Howell of Turner, Onderdonk, Kimbrough, Howell, Huggins & Bradley, Mobile, for respondent.
   THOMPSON, Presiding Judge.

R.E. Garrison Trucking, Inc. ("Garrison"), petitions this court for a writ of mandamus directing the Washington Circuit Court ("the trial court") to vacate its order denying Garrison's motion for a change of venue and to enter an order transferring this workers' compensation action to the Cullman Circuit Court.

The materials submitted to this court in support of and in opposition to the petition indicate the following. According to the affidavit of James Hamm, the director of national accounts for Garrison, Garrison is a "primarily refrigerated truck-load carrier that transports food items between points in the United States." It is undisputed that Garrison's principal place of business is in Cullman County. In the underlying civil action, William D. Hennis alleged that he was an employee of Garrison when he suffered an on-the-job accident. The accident occurred in Cullman County. In its answer, Garrison acknowledged that Hennis injured his left shoulder in the accident.

Hennis also alleged in the complaint that he is a resident of Washington County. In support of its request for a change of venue, Garrison submitted documentary evidence, including Hennis's job application, which was completed in 2014, other employment documents, and medical forms completed in 2015, that showed Hennis's address to be in Semmes, which is in Mobile County. Garrison also submitted a certified copy of a page from the Alabama Secretary of State's voter-registration database showing that, in 2016, Hennis was registered to vote in Mobile County. The database also indicated that, from 1994 through 2000, Hennis had been registered to vote in Washington County.

Garrison also submitted evidence indicating that it did not do business in Washington County. In his affidavit, Hamm testified that he had reviewed Garrison's shipping and customer records for the previous 15 years and that Garrison had not delivered to or picked up a load from a single customer in Washington County. Hamm also said that, based on his review of personnel files for the same period, Garrison had not had any sales agents or company sales people who lived in Washington County.

In opposition to Garrison's submissions, Hennis submitted his affidavit and documentary evidence, including his pistol permit, his commercial driver's license, and vehicle registrations and loan documents completed in 2015, when he purchased a new vehicle, indicating that he lived in Chatom, in Washington County. In his affidavit, he stated that he had lived at the Chatom address for the past 15 years. He explained that, in 2014, he began using the Semmes address, where his former wife lived, for mailing purposes. He said that he lived alone at the Chatom address and that, because, he was gone for long periods driving for Garrison, he wanted "to be certain [he] got all [his] mail." He said that he could depend on his former wife to keep his mail together to ensure that he would not "miss anything important."

Hennis also explained that, after the work-related injury to his shoulders, he "had a lot of trouble taking care of [his] personal needs-bathing, dressing, eating, driving," and, therefore, he stayed with his former wife in Semmes so that she could assist him. He said that he returned to the Chatom address as soon as he was able.

Hennis also submitted evidence regarding the issue of whether Garrison did business in Washington County. In his affidavit, he testified that he was acting as Garrison's agent when he parked and stored Garrison tractors and trailers on property he owned in Washington County ("the Washington County property"). No evidence was presented as to what Hennis meant by "storing" the tractors or trailers, i.e., whether they were merely parked for a night or a weekend or for longer periods. Hennis said that the tractors and trailers that were parked on the Washington County property were driven not only by him but by other Garrison drivers. He claimed that officers of Garrison specifically approved of the arrangement.

Hennis further testified that, at the request of Wyles Griffith, the president of Garrison, he recruited drivers for the company. Hennis acknowledged that he did not have the "final authority over who was hired or not hired," but, he said, he did not recall ever having recommended a driver who was not hired.

In rebuttal to Hennis's evidence, Garrison submitted additional evidence to demonstrate that it did not do business in Washington County. A number of Garrison employees, including Griffith, testified by affidavit that, contrary to Hennis's assertions in discovery responses, they had not given Hennis permission to park his tractor and a Garrison trailer on Hennis's property in Washington County when he was not driving. One of those employees, Tim Brown, stated that Garrison allowed an independent contractor to park his or her tractor and trailer at the driver's home for his convenience if the driver was at home for the weekend. However, Brown said, doing so did not further Garrison's business because it "actually takes a [Garrison] trailer out of service for the weekend because another independent-contractor driver cannot hook up to it and pull it."

As to Hennis's assertion that he recruited drivers for Garrison, Jessica Bennett, the safety coordinator for Garrison, testified by affidavit that independent contract drivers are paid bonuses for drivers they recruit to Garrison, but only if those recruits drive for a certain length of time. The drivers Hennis recruited, Bennett said, did not drive for Garrison the requisite length of time. She testified that company records showed that Hennis had not received any recruiting bonuses.

After reviewing the submissions of the parties on the issue of a change of venue, the trial court on March 9, 2017, entered an order in which it found that Hennis had presented sufficient evidence to "clearly establish" that, at all times material to this action, he was a resident of Washington County. In the order, the trial court also stated that, although the facts relating to Hennis's agency relationship with Garrison were in dispute, it concluded that Garrison was doing business by agent in Washington County at the time of Hennis's work-related accident. Specifically, the trial court noted that Hennis used the Washington County property to store Garrison tractors and trailers for his use and for the use of other Garrison drivers. The trial court also noted that Garrison caused or allowed Hennis to recruit new drivers in Washington County. The trial court determined that both the storage of tractors and trailers and the recruitment of drivers were part of Garrison's business functions. Based on its conclusions, the trial court denied Garrison's motion for a change of venue. Garrison filed its petition for a writ of mandamus on April 19, 2017.

" ' "The proper method for obtaining review of a denial of a motion for a change of venue in a civil action is to petition for the writ of mandamus. Lawler Mobile Homes, Inc. v. Tarver, 492 So.2d 297, 302 (Ala. 1986). 'Mandamus is a drastic and extraordinary writ, to be issued only where 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 Integon Corp., 672 So.2d 497, 499 (Ala. 1995). 'When we consider a mandamus petition relating to a venue ruling, our scope of review is to determine if the trial court [exceeded] its discretion, i.e., whether it exercised its discretion in an arbitrary and capricious manner.' Id. Our review is further limited to those facts that were before the trial court. Ex parte American Resources Ins. Co., 663 So.2d 932, 936 (Ala. 1995)." '
" Ex parte Southeast Alabama Timber Harvesting, LLC, 94 So.3d 371, 373 (Ala. 2012) (quoting Ex parte National Sec. Ins. Co., 727 So.2d 788, 789 (Ala. 1998) )."

Ex parte Tier 1 Trucking, LLC, 222 So.3d 1107, 1110 (Ala. 2016).

" ' "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 Pike Fabrication, Inc., 859 So.2d 1089, 1091 (Ala. 2002) ] (quoting Ex parte Finance America Corp., 507 So.2d 458, 460 (Ala. 1987) ). If the movant makes a prima facie showing that a county is an improper venue, the burden shifts to the party asserting proper venue in that county to rebut the prima facie showing. Ex parte Alabama Med. Ctr., 109 So.3d 1114, 1116 (Ala. 2012) (citing Ex parte Movie Gallery, Inc., 31 So.3d 104, 109 (Ala. 2009) )."

Ex parte Hibbett Sporting Goods, Inc., 228 So.3d 1008, 1013 (Ala. Civ. App. 2017) (emphasis added).

Section 6-3-7, Ala. Code 1975, governs the determination of venue in a civil action against a corporation. That statute provides, in relevant part, that in such cases, venue is proper in, in addition to other enumerated counties,

"the county in which the plaintiff resided, or if the plaintiff is an entity other than an individual, where the plaintiff had its principal office in this state, at the time of the accrual of the cause of action, if such corporation does business by agent in the county of the plaintiff's residence."

§ 6-3-7(a)(3). Thus, based on § 6-3-7(a)(3), venue is proper in Washington County if Hennis resided there and if Garrison did business by agent in Washington County at the time of Hennis's on-the-job accident.

Garrison contends that Hennis's county of residence was Mobile County; Hennis claims that he resides in Washington County.

" 'Generally, the terms "residence" and "domicile" are not considered synonymous.... However, when determining venue, most jurisdictions, including Alabama, do consider the terms synonymous.... The terms denote the place where the person is deemed in law to live and may not always be the place where the person is actually dwelling.'
" Ex parte Sides, 594 So.2d 93, 95 (Ala. 1992) (citing Ex parte Weissinger, 247 Ala. 113, 22 So.2d 510 (1945) )....
" 'A person's domicile is that place in which his habitation is fixed, without any present intention of removing, and it embraces (1) the fact of residence and (2) the intention to remain. As a general proposition a person can have but one domicile, and when once acquired is presumed to continue until a new one is gained facto et animo, and what state of facts constitutes a change of domicile is a mixed question of law and fact.'
" Weissinger, 247 Ala. at 117, 22 So.2d at 514."

Ex parte Coley, 942 So.2d 349, 352 (Ala. 2006) (footnote omitted).

Unlike in Coley and Ex parte Weissinger, 247 Ala. 113, 22 So.2d 510 (1945), this case does not appear to involve the question of whether Hennis had changed residences. Instead, the trial court was required to determine Hennis's residence as between two addresses that he listed on various documents as being his home address. Although documentary evidence was presented showing that Hennis had used an address in Semmes in Mobile County, as well as an address in Chatom in Washington County, as his "home address," Hennis stated in his affidavit that the Semmes address was that of his former wife. Hennis explained that, because he was frequently on the road, he wanted his mail sent to a secure address, and, he said, he knew he could count on his former wife to ensure that he received the mail that was delivered to her house. Hennis said that, although he stayed with his former wife after his injury so that she could assist him with his daily needs, he returned to his house in Chatom as soon as he was able. He said that he had lived at the Chatom address for 15 years. Although, as Garrison points out, the county in which Hennis is registered to vote is "a 'potent consideration,' " Harris v. McKenzie, 703 So.2d 309, 311 (Ala. 1997), it is not conclusive.

The trial court was presented with conflicting evidence as to Hennis's home address. Hennis offered testimony explaining why he had used the Semmes address on some documents. Other than documents listing an address, no evidence was presented to show that Hennis resided or intended to reside at the Semmes address. For example, there was no evidence from neighbors indicating that Hennis appeared to be living in Semmes or that he was involved in church or community activities in Semmes. Based on the materials before us, we cannot say that Garrison met its burden of proving that Hennis did not live in Washington County, nor can we say that the trial court clearly erred in determining that Hennis's residence was in Washington County.

Our next inquiry, then, is whether the trial court erred in determining that Garrison does business by agent in Washington County.

" 'In Ex parte Elliott, 80 So.3d 908, 912 (Ala. 2011), this Court held:
" 'To establish that a corporation does business in a particular county for purposes of venue, past isolated transactions are inconclusive. Ex parte Harrington Mfg. Co., 414 So.2d 74 (Ala. 1982). A corporation does business in a county for purposes of § 6-3-7 if it performs with some regularity in that county some of the business functions for which the corporation was created. Ex parte SouthTrust Bank of Tuscaloosa Cnty., N.A., 619 So.2d 1356, 1358 (Ala. 1993)."
" '(Emphasis added.) This Court has also held that " ' "not every act done within the corporate powers of a foreign corporation will constitute doing business within the meaning of the statute." ' " Ex parte Greenetrack, Inc., 25 So.3d 449, 453 (Ala. 2009) (quoting Ex parte Scott Bridge Co., 834 So.2d 79, 81 (Ala. 2002), quoting in turn Ex parte Charter Retreat Hosp., Inc., 538 So.2d 787, 790 (Ala. 1989) )....'
" Ex parte Guarantee Ins. Co., 133 So.3d [862] at 872 [ (Ala. 2013) ]."

Ex parte Interstate Freight USA, Inc., 213 So.3d 560, 564-65 (Ala. 2016).

As mentioned, Garrison is a commercial trucking company that delivers loads across the United States. As our supreme court stated in Ex parte Interstate Freight USA, Inc., supra, "the delivery of loads constitute business functions for which [trucking] companies were created." 213 So.3d at 566. Hennis presented evidence indicating that Garrison drivers use the Washington County property to park and store Garrison tractors and trailers. The evidence is undisputed that, as a convenience to its drivers, Garrison allowed those drivers to park the tractors and/or trailers they were driving when they were home for the weekend. Hennis did not present evidence indicating that Garrison paid him or reimbursed him in any way when he allowed other drivers to use the Washington County property for parking or storage of tractors or trailers.

Garrison presented evidence indicating that, contrary to Hennis's assertions in his discovery responses, its officers or employees had not given Hennis express approval to allow other drivers to park or store tractors and trailers on the Washington County property. Garrison also pointed out that, if a tractor and trailer were parked or stored at a location other than its offices in Cullman County, other drivers did not have access to those vehicles so that they could be used to deliver other loads. Based on the materials before us, we cannot say that the parking or storing of tractors and/or trailers away from Garrison's premises furthered Garrison's business purposes. See Ex parte Interstate Freight USA, Inc., supra. Our research has revealed no legal authority that would support that proposition, and we are not prepared to reach such a conclusion under the facts of this case.

Similarly, we are unconvinced by Hennis's contention that his recruitment of drivers in Washington County was sufficient to constitute Garrison's doing business in that county for purposes of establishing venue. As mentioned, a corporation does business in a county for purposes of § 6-3-7 if it performs with some regularity in that county some of the business functions for which the corporation was created. Ex parte SouthTrust Bank of Tuscaloosa Cty., N.A., 619 So.2d 1356, 1358 (Ala. 1993).

In Ex parte Tyson Chicken, Inc., 72 So.3d 1, 4 (Ala. 2011), our supreme court wrote the following regarding the determination of venue in the context of hiring employees:

"[O]ur decisions do not indicate that hiring employees constitutes doing business by their employer in the county where those employees choose to live; venue is dependent on the decisions of the defendant corporation, not on the personal choices of its employees independent of their employment. See, e.g., Ex parte Greenetrack, Inc., 25 So.3d 449, 454 (Ala. 2009) (holding that an inter-county bus service transporting gaming customers from Pickens County to Greene County, where gaming facility was located, was ' "incidental to [Greenetrack's] corporate business functions" ' and therefore did not constitute 'doing business' in Pickens County as those words were used in the venue statute, even though Greenetrack also had employees in Pickens County and advertised there (quoting Ex parte Scott Bridge Co., 834 So.2d 79, 81-82 (Ala. 2002) ))."

In this case, Griffith, the president of Garrison, testified by affidavit that Garrison never instructed Hennis to act as an agent of Garrison to recruit drivers in Washington County. Griffith said that Garrison encouraged its drivers to recruit new drivers by paying recruiting bonuses to drivers who referred other drivers to Garrison. To receive the bonus, the evidence showed, the recruited driver must drive for Garrison for a minimum period. Hennis never received a recruiting bonus for the people he referred to Garrison.

Just as hiring employees who lived in another county, Ex parte Tyson Chicken, Inc., supra, and operating a bus service for transporting gamers from Pickens County to Greene County so that those gamers could participate in activities at a gaming facility in Greene County, Ex parte Greenetrack, Inc., 25 So.3d 449, 454 (Ala. 2009), were considered too incidental to those corporations' business functions to constitute doing business in a certain county for venue purposes, based on the materials before us, we conclude that asking drivers to refer potential new drivers is "incidental to [Garrison's] corporate business functions" and is an insufficient activity to constitute Garrison's "doing business" in Washington County. Ex parte Scott Bridge Co., 834 So.2d 79, 81 (Ala. 2002) ; see also Ex parte Interstate Freight USA, Inc., supra. Accordingly, we hold that the trial court erred in determining that Garrison was regularly doing business by agent in Washington County. Because the evidence demonstrates that Garrison was not doing business in Washington County, venue is not proper in Washington County. Therefore, we grant Garrison's petition for a writ of mandamus. We direct the trial court to vacate its March 9, 2017, order denying Garrison's motion seeking a change of venue and to enter an order consistent with this opinion.

PETITION GRANTED; WRIT ISSUED.

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

Thomas, J., recuses herself.


source: Caselaw Access Project

author: DONALDSON, Judge.

license: Public Domain

text:
    EX PARTE W.C.
    (In re: L.J. v. W.C.)
    Ex parte W.C.
    (In re: L.J. v. W.C.)
    2160536 2160537
    Court of Civil Appeals of Alabama.
    June 16, 2017
    Oscar W. Adams III of Adams Law, P.C., Birmingham, for petitioner.
    J. Timothy Smith, Hoover, for respondent.
   DONALDSON, Judge.

W.C. ("the father") petitions this court for a writ of mandamus directing the Jefferson District Court ("the trial court") to dismiss two cases pending in the trial court for lack of jurisdiction. This court consolidated the two appellate proceedings initiated by the father's petition. For the reasons expressed below, we deny the requested relief.

Facts and Procedural History

The materials submitted by the parties indicate the following. E.C. ("the child") was born in December 2013 out of wedlock. On November 25, 2015, L.J. ("the mother") filed in the trial court a complaint against the father initiating case number CS-15-439.00. In the complaint, the mother sought to establish the paternity of the father, to receive child support from the father, and for the father to include the child in his health-insurance policy. Also on November 25, 2015, the mother filed in the trial court a motion seeking an immediate hearing. In her motion, the mother stated that she was seeking an order establishing that she was entitled to custody of the child. The mother alleged that she had been injured in an automobile collision on August 4, 2015, that the parties had agreed that the father would care for the child for three months while the mother was recovering from her injuries, that the father had relocated the child to Georgia, that the father had refused to return the child to her, and that she had not seen or talked to the child since the child's relocation.

On March 29, 2016, the trial court held a hearing. The mother appeared at the hearing, but the father did not. On March 30, 2016, the trial court entered a default judgment establishing the father's paternity of the child, ordering the father to pay child support to the mother, and ordering the father to pay half of the child's unreimbursed health-care expenses. Also on that day, the trial court entered an order vesting the mother with custody of the child.

At some point unidentified in the materials submitted to this court, the father initiated an action in the Superior Court for the County of Upson, Georgia ("the Georgia court"). On September 21, 2016, the Georgia court conducted a hearing in which the father, the mother, and the child were present. On October 3, 2016, the Georgia court entered an order declaring that the child was the child of the father and granting legal and physical custody of the child to the father. In the order, the Georgia court found that the child had resided with the father in Upson County, Georgia, since July 2015 and that the child had resided in Georgia continuously for six months before the initiation of the action in the Georgia court. The Georgia court also noted that proceedings regarding the child appeared to be ongoing in Alabama. The Georgia court's order recited that the Georgia judge had attempted to contact the Alabama judge identified by the mother as the judge conducting the Alabama proceedings but that the Georgia judge had been informed that the Alabama judge "was unavailable and would not be calling back." The Georgia court further found that it had subject-matter jurisdiction over the father's action and over visitation matters involving the child.

Apparently, another action was commenced in the trial court and assigned case number CS-15-439.01. The materials submitted by the parties do not detail the proceedings that occurred in case number CS-15-439.01. The only document submitted to this court regarding that case is an order apparently entered on November 22, 2016, that directs that the mother shall have visitation with the child in Alabama on the first and third weekend of each month, which coincides with the father's visitation periods with his other children in Alabama.

On February 14, 2017, the trial court entered an order upon the father's motion setting aside the default judgment in case number CS-15-439.00 on the basis that the father had not been properly served. In the order setting aside the default judgment, the trial court noted that the Georgia court had entered an order regarding the child's custody after the mother had already filed a complaint in the trial court. The trial court stated that it had jurisdiction in the matter pursuant to § 30-3B-201, Ala. Code 1975. In the order, the trial court set the matter for trial, ordered that the mother would have visitation with the child every other weekend, and designated a place for the exchange of the child.

On March 12, 2017, the mother filed a motion in case number CS-15-439.00 seeking sole legal and physical custody of the child, child support from the father, and DNA testing to establish the father's paternity of the child. On March 14, 2017, the mother filed a motion seeking a finding of contempt against the father, alleging that the father had failed to comply with the trial court's February 14, 2017, order requiring that he be at the designated place to exchange the child for her scheduled visitations on February 25, 2017, and on March 10, 2017.

On March 31, 2017, in case number CS-15-439.00, the father filed a motion to dismiss the proceedings in the trial court. In the motion, the father asserted that the Georgia court had already established custody and paternity of the child, that he and the child had resided in Georgia since July 2015, and that the trial court had no jurisdiction to determine issues pertaining to custody or visitation. On April 6, 2017, the trial court heard oral arguments from the parties and entered an order. Although the order did not explicitly deny the father's motion to dismiss, the order states that the trial court had heard the oral arguments and set a trial date for June 5, 2017. On April 11, 2017, the father filed the present petition for a writ of mandamus.

Although the trial court did not expressly deny the father's motion to dismiss, the father contends that the trial court effectively denied the motion by setting the case for trial after hearing oral arguments. The father specifically asserts:

"At the hearing on April 6, 2017, [the trial court] entered its order re-scheduling the proceedings for June 5, 2015 [sic] and thereby refused to the dismiss the matter for lack of jurisdiction and ordered the child to be present during the proceedings of June 5, 2017."

The mother does not refute the father's assertion, and the trial court did not file a response in this court. Therefore, we must accept the assertion that the trial court refused to dismiss the proceedings as true. Ex parte Turner, 840 So.2d 132, 134-35 (Ala. 2002). We also note that if the trial court lacks jurisdiction, it can take no action other than dismissing the proceedings. Ex parte Blankenship, 893 So.2d 303, 307 (Ala. 2004). Therefore, we will address the proceedings before this court as challenging the trial court's denial of the father's motion to dismiss.

Standard of Review

" '[T]he question of subject-matter jurisdiction is reviewable by a petition for a writ of mandamus.' Ex parte Flint Constr. Co., 775 So. 2d 805, 808 (Ala. 2000) (citing Ex parte Johnson, 715 So.2d 783, 785 (Ala. 1998) ).

" ' " 'A writ of mandamus is an extraordinary remedy that requires a showing of: (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty on the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.' " '
" Ex parte Punturo, 928 So.2d 1030, 1033 (Ala. 2002) (quoting Ex parte Bruner, 749 So.2d 437, 439 (Ala. 1999), quoting in turn Ex parte McNaughton, 728 So.2d 592, 594 (Ala. 1998) )."

Ex parte Siderius, 144 So.3d 319, 323 (Ala. 2013).

Discussion

The father argues that the mother's March 12, 2017, motion in case number CS-15-439.00 was her first filing seeking custody of the child in the trial court and that, at that time, the trial court did not have jurisdiction to conduct proceedings concerning custody of the child because, by that time, Georgia was the child's home state and the Georgia court had entered an order regarding the child's custody. The father, however, acknowledges that the mother filed her complaint initiating case number CS-15-439.00 in the trial court on November 25, 2015, seeking, among other things, to establish the father's paternity of the child and to obtain child support from the father.

Section 30-3B-102(4), Ala. Code 1975, a part of Alabama's version of the Uniform Child Custody Jurisdiction and Enforcement Act, § 30-3B-101 et seq., Ala. Code 1975, provides, in pertinent part, the definition of a "child custody proceeding":

"A proceeding in a court in which legal custody, physical custody, or visitation with respect to a child is an issue. The term includes a proceeding for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence, in which the issue may appear. The term does not include a court proceeding involving juvenile delinquency, contractual emancipation, adoption, or enforcement under Article 3."

(Emphasis added.)

"[I]n Alabama a paternity determination that awards child support to a particular individual constitutes an implied award of custody of the child to that recipient. See... Ex parte Bullard, 133 So.3d 900, 903 (Ala. Civ. App. 2013) (citing R.W. v. D.S., 85 So.3d 1005, 1007 (Ala. Civ. App. 2011) )."

Dunaway v. Vasta, 193 So.3d 745, 750 (Ala. Civ. App. 2015). Therefore, an action seeking an order adjudicating paternity and child support is a "child custody proceeding." Id.

In case number CS-15-439.00, the trial court entered a default judgment adjudicating paternity and child support, and the trial court expressly indicated that the action was a child-custody proceeding when it entered an order on March 30, 2016, vesting custody of the child in the mother. Moreover, the materials submitted to this court show that the mother also expressly raised the issue of child custody in the motion she filed in the trial court on November 25, 2015. We conclude that the mother initiated proceedings regarding the child's custody through her filings on November 25, 2015. We therefore must determine whether the trial court could properly exercise jurisdiction to make a custody determination on that date.

The jurisdiction of Alabama courts to make an initial child-custody determination is governed by § 30-3B-201, Ala. Code 1975, which states, in relevant part:

"(a) 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 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 30-3B-208 ; or
"(4) No court of any other state would have jurisdiction under the criteria specified in subdivision (1), (2), or (3).
"(b) Subsection (a) is the exclusive jurisdictional basis for making a child custody determination by a court of this state.
"(c) Physical presence of a child is not necessary or sufficient to make a child custody determination."

The jurisdiction of an Alabama court to make an initial custody determination pursuant to § 30-3B-201"typically turns on whether Alabama is the home state of the child." B.N. v. Madison Cty. Dep't of Human Res., 151 So.3d 1115, 1119 (Ala. Civ. App. 2014).

"As our supreme court explained in Ex parte Siderius, 144 So.3d 319 (Ala. 2013), § 30-3B-201(a)(1) contains two provisions for identifying if a home state exists for purposes of determining jurisdiction. Under the first provision, a state is a home state if the child has lived in the state with a parent for at least six consecutive months immediately before the commencement of the proceeding, allowing for temporary absences from the state. The second provision of § 30-3B-201(a)(1) extends the time frame of the first provision by providing for jurisdiction if the state '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.' (Emphasis added.)"

J.H. v. C.Y., 161 So.3d 233, 239 (Ala. Civ. App. 2014).

The father asserts that the child has lived in Georgia since July 5, 2015. The materials submitted to this court show that the mother has continuously resided in Alabama and that the child lived in Alabama before July 5, 2015. There is no indication that, before July 5, 2015, the child had lived anywhere else besides Alabama since his birth. Less than 6 months elapsed between July 5, 2015, and November 25, 2015, when the mother initiated custody proceedings in the trial court. Based on the materials before us, Alabama was the home state of the child when the mother initiated the action in the trial court on November 25, 2015, pursuant to § 30-3B-201(a)(1).

The materials submitted to this court show that the Georgia court entered an order regarding the child's custody on October 3, 2016, long after the mother had initiated custody proceedings in the trial court. There is no indication that the proceedings in the Georgia court had commenced before the proceedings in the trial court commenced. In its October 3, 2016, order, the Georgia court found that the child had lived in Georgia since July 2015 and that the child had lived in Georgia continuously for six months before the father initiated the action in the Georgia court. Based on the findings in that order, the earliest that the father could have initiated the action in the Georgia court was six months after July 2015, i.e., in January 2016, which is after the mother had filed her complaint in the trial court on November 25, 2015. Therefore, based on the materials before us, the father is unable to show that the Georgia court had home-state jurisdiction when the mother commenced her child-custody proceeding in the trial court on November 25, 2015. Accordingly, we determine that, for the purpose of establishing a clear legal right to the issuance of a writ of mandamus, the father cannot establish that the trial court lacked jurisdiction of the issue of the child's custody pursuant to § 30-3B-201(a). For the foregoing reasons, we deny the father's petition seeking to dismiss the actions before the trial court for lack of subject-matter jurisdiction.

2160536-PETITION DENIED.

2160537-PETITION DENIED.

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

      We note that, although the order contains a date stamp of February 14, 2017, from the electronic-filing system, the order states that it was rendered on November 22, 2016. The parties do not provide an explanation of the circumstances of the filing of the order.

      Although the order states that the trial will be held on "June 5, 2015," we presume the trial court intended to set the trial for June 5, 2017.


author: MOORE, Judge.

text:
    Roxanne Michelle TANNER v. Justin Clay TANNER
    2160105
    Court of Civil Appeals of Alabama.
    June 23, 2017
    Vanessa Arnold Shoots, Mobile, for appellant.
    Submitted on appellant's brief only.
   MOORE, Judge.

Roxanne Michelle Tanner ("the mother") appeals from judgments entered by the Mobile Circuit Court ("the trial court") that, among other things, require her visitation with her son, M.C.T. ("the son"), to be supervised, denied her request to modify her child-support obligation to Justin Clay Tanner ("the father"), and ordered her to pay a portion of the fees of the son's guardian ad litem. We affirm the judgments in part, reverse the judgments in part, and remand the causes for further proceedings.

Procedural History

The parties were divorced by a judgment entered by the trial court in 2004; pursuant to that judgment, the mother was awarded sole physical custody of the son and the parties' daughter, V.T. ("the daughter"). Through a series of postdivorce proceedings, the divorce judgment was modified so that the father obtained sole physical custody of the son and the daughter, the mother was ordered to pay $320 per month in child support, the mother was allowed visitation with the daughter at the daughter's discretion, and the mother was allowed visitation with the son under the supervision of the mother's current husband.

On December 22, 2014, the father filed a petition, assigned case number DR-04-501637.11, requesting that the trial court suspend, terminate, or restrict the mother's visitation; he also requested that the mother be held in contempt of court for her failure to pay child support. The mother answered and asserted a counterclaim, requesting that the trial court hold the father in contempt for his failure to allow her to visit with the son. At the father's request, a guardian ad litem was appointed to represent the interests of the son, who is a child with special needs. On November 9, 2015, the mother filed a petition, assigned case number DR-04-501637.12, seeking sole physical custody of the son and the daughter on an emergency basis.

The trial court conducted a consolidated trial. During the trial, the mother requested that the trial court reduce her child-support obligation. On May 31, 2016, the trial court entered separate, but identical, judgments in both cases. Among other things, the judgments denied the mother's request to reduce her child-support obligation, awarded the father a judgment against the mother in the amount of $5,911 for her child-support arrearage, and required the mother's visitation with the son to be supervised at the Family Center in Mobile for at least six months and provided that, if the visitation is without incident during that six-month period, future visitation can be supervised by the mother's current husband. On June 1, 2016, the trial court entered separate, but identical, orders in both cases, requiring that the father pay $500 of the guardian ad litem's fees and that the mother pay the remaining $1,400 of those fees.

On June 30, 2016, the mother filed a postjudgment motion in both cases. On September 26, 2016, the trial court entered separate, but identical, orders in both cases allowing the mother to "deduct 1//2of the cost of visitation from her child support" and providing that "[t]he father will not have to come 'out of pocket' for the visitation so long as he is owed child support arrearages." All other claims for relief were denied. On November 3, 2016, the mother filed her notice of appeal.

Discussion

I.

On appeal, the mother first argues that the trial court erred by requiring that her visitation with the son be supervised at the Family Center because, she says, that requirement would be cost-prohibitive to the mother. We note, however, that the mother failed to present any evidence of the cost of having her visitation supervised at the Family Center. Instead, in her unverified postjudgment motion, she simply made an assertion as to the cost of visitation without providing any supporting authority. "'[S]tatements or arguments ... made in a motion do not constitute evidence.'"

Guthrie v. Alabama Dep't of Labor, 160 So.3d 815, 818-19 (Ala. Civ. App. 2014) (declining to consider allegations made in unverified postjudgment motion) (quoting Griffin v. Griffin, 159 So.3d 67, 70 (Ala. Civ. App. 2014) ). Because the mother's argument is not supported by evidence in the record, Guthrie, supra, we decline to reverse the trial court's judgment, entered in case number DR-04-501637.11, on this point.

II.

The mother next argues that the trial court erred in declining to reduce her child-support obligation. Rule 32(E), Ala. R. Jud. Adm., provides, in pertinent part:

"A standardized Child-Support Guidelines form (Form CS-42 as appended to this rule) and a Child-Support-Obligation Income Statement/Affidavit form (Form CS-41 as appended to this rule) shall be filed in each action to establish or modify child-support obligations and shall be of record and shall be deemed to be incorporated by reference in the court's child-support order."

Based on the mandatory language of Rule 32(E), this court has held that a trial court commits error when it denies a child-support modification request without first receiving the necessary forms. See, e.g., Wilkerson v. Waldrop, 895 So.2d 347 (Ala. Civ. App. 2004). The mother maintains that the trial court erred in denying her child-support modification claim without requiring the parties to submit the necessary forms.

The mother did not plead a claim for child-support modification in any either her petition or her counterclaim. The mother first raised the claim during the trial. The trial court questioned the mother as to the basis for her claim that her child support should be reduced. The mother responded that she was not working and that she was providing health and dental insurance for the son and the daughter through her current husband's employer-sponsored health insurance. The mother did not allege that any of those circumstances were different than those existing at the time of the entry of the last child-support judgment. Rule 32(A)(3)(b), Ala. R. Jud. Admin., provides that "[a] party seeking a modification of child support must plead and prove that there has occurred a material change in circumstances that is substantial and continuing since the last order of child support." The trial court did not state its reason for denying the mother's child-support-modification claim, but "'[w]here a trial court does not make specific findings of fact concerning an issue, this Court will assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous.'" Ex parte Fann, 810 So.2d 631, 636 (Ala. 2001) (quoting Lemon v. Golf Terrace Owners Ass'n, 611 So.2d 263, 265 (Ala. 1992) ). Thus, we assume that the trial court determined that the mother did not plead or prove a material change of circumstances in regard to her child-support-modification claim.

Under these circumstances, any error the trial court might have committed by denying the mother's child-support modification claim without first receiving the forms required by Rule 32(E) amounts to harmless error. Rule 45, Ala. R. App. P., provides:

"No judgment may be reversed or set aside, nor new trial granted in any civil or criminal case on the ground of misdirection of the jury, the giving or refusal of special charges or the improper admission or rejection of evidence, nor for error as to any matter of pleading or procedure, unless in the opinion of the court to which the appeal is taken or application is made, after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties."

(Emphasis added.) "[T]he party claiming error has the burden of showing error on the record and resulting injury." Dale Cty. Dep't of Pensions & Sec. v. Robles, 368 So.2d 39, 43 (Ala. Civ. App. 1979) (emphasis added); see also Watson v. McGee, 348 So.2d 461, 463 (Ala. 1977) ("The appellant must not only establish error but also must show that he was probably prejudiced by the error."). The mother did not satisfy the threshold requirement of proving a material change of circumstances. The mother has failed to show how the inclusion of the child-support forms would have altered the disposition of the mother's claim. The mother has not proven that she was prejudiced by the failure of the trial court to obtain the forms.

Based on the foregoing, we decline to reverse the trial court's judgments to the extent they declined to reduce the mother's child-support obligation.

III.

Finally, the mother argues that the trial court erred by requiring her to pay a portion of the guardian ad litem's fees without requiring the guardian ad litem to submit an itemized invoice of her services.

"[A] trial court should establish a guardian ad litem's fees using the same criteria as are applicable to awards of attorney's fees in general." Turner v. Turner, 210 So.3d 603, 612 (Ala. Civ. App. 2016).

" ' "The determination of whether an attorney fee is reasonable is within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion." Ex parte Edwards, 601 So.2d 82, 85 (Ala. 1992). Our deference to the trial court in attorney-fee cases is based upon our recognition that the trial court, which has presided over the entire litigation, has a superior understanding of the factual questions that must be resolved in fee determinations. See Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)...." '

Rabb v. Estate of Harris, 953 So.2d 401, 405-06 (Ala. 2006) (quoting City of Birmingham v. Horn, 810 So.2d 667, 681-82 (Ala. 2001) ).

In Rabb, the guardian ad litem submitted his hourly rate along with the total number of hours he had spent "'in interviews, telephone calls, preparation of case, review of pleadings and documents'" and in court, 953 So.2d at 406 ; however, he "refused to itemize the time claimed or to provide further documentation or evidence." 953 So.2d at 407. The supreme court reasoned:

"'Applicants for an attorney fee bear the burden of proving their entitlement to an award and documenting their appropriately expended hours. [ Ex parte] Edwards, 601 So.2d [82] at 85 [ (Ala. 1992) ] ; see also Hensley [v. Eckerhart ], 461 U.S. [424] at 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 [ (1983) ] (citing the importance of documenting in fee applications the hours expended). "The applicant should exercise 'billing judgment' with respect to hours worked, and should maintain billing time records in a manner that will enable a reviewing court to identify distinct claims." Hensley, 461 U.S. at 437, 103 S.Ct. 1933 (citation omitted). As the United States Court of Appeals for the Eleventh Circuit stated in American Civil Liberties Union of Ga. v. Barnes, [168 F.3d 423 (11th Cir. 1999) ]:
" ' "If fee applicants do not exercise billing judgment, courts are obligated to do it for them, to cut the amount of hours for which payment is sought, pruning out those that are 'excessive, redundant, or otherwise unnecessary.' Courts are not authorized to be generous with the money of others, and it is as much the duty of courts to see that excessive fees and expenses are not awarded as it is to see that an adequate amount is awarded."
"' 168 F.3d at 428.'
"[ City of Birmingham v. Horn,] 810 So.2d [667,] at 682 [ (Ala. 2001) ]."

Rabb, 953 So.2d at 407-08.

Based on the foregoing, the supreme court, in Rabb, held that, because the guardian ad litem had failed to "substantiate his request for an attorney fee with any evidence or documentation, such as itemized billing records," 953 So.2d at 408, the guardian ad litem had failed to meet his burden of proving his entitlement to the fee claimed. Similarly, in the present case, because the guardian ad litem failed to "substantiate [her] request for an attorney fee with any evidence or documentation, such as itemized billing records," id., we conclude that the guardian ad litem failed to meet her burden of proving her entitlement to the fee claimed. Therefore, we reverse the trial court's judgments entered in both cases with regard to the guardian ad litem's fee and remand the causes for the trial court to require the guardian ad litem to prove her entitlement to the fee requested in accordance with Rabb.

Conclusion

Based on the foregoing, we affirm the trial court's judgment entered in case number DR-04-501637.11 with regard to the restriction on the mother's visitation. We affirm the trial court's judgments entered in case numbers DR-04-501637.11 and DR-04-501637.12 to the extent the trial court declined to modify the mother's child-support obligation. We reverse the trial court's judgments in both cases with regard to the award of fees to the guardian ad litem, and we remand the causes for further proceedings in accordance with this opinion.

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

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

      The mother filed other claims in both actions, but she abandoned those claims at trial.

      We note that, in a judgment entered in April 2014 in a previous action, the trial court required the mother's visitation with the son to be supervised by her current husband. The mother did not appeal from that judgment, nor did she, in either of the cases at issue in this appeal, allege a change in circumstances warranting modification of that judgment. Therefore, the propriety of the supervision requirement is not at issue in this appeal. See, e.g., Stack v. Stack, 646 So.2d 51 (Ala. Civ. App. 1994) (holding that issue determined in previous judgment, which was not appealed, could not be challenged on appeal in subsequent action); and Norman v. Bozeman, 605 So.2d 1210, 1214 (Ala. 1992) ("Our review is limited to the issues that were before the trial court.").


text:
    Matthew ROBINSON v. Akeisha Danielle ARNOLD
    2160238
    Court of Civil Appeals of Alabama.
    June 23, 2017
    Katie Cameron O'Mailia of O'Mailia Law, PLLC, Montgomery, for appellant.
    Submitted on appellant's brief only.
   MOORE, Judge.

Matthew Robinson appeals from a judgment entered by the Macon Circuit Court ("the trial court") in a protection-from-abuse action filed by Akeisha Danielle Arnold. We affirm the trial court's judgment.

Procedural History

On October 11, 2016, Arnold filed a petition seeking an order protecting her from abuse by Robinson. On October 14, 2016, the trial court entered an ex parte protection-from-abuse order and set the case for a final hearing. That same day, Robinson answered the petition. Following the final hearing, the trial court entered a final protection-from-abuse judgment against Robinson on November 21, 2016. On December 2, 2016, Robinson filed a postjudgment motion. Without conducting a hearing, the trial court entered an order on December 5, 2016, denying the postjudgment motion and stating, in pertinent part:

"Both [Robinson] and [Arnold] were present at the final hearing, with their respective counsel. Both parties were given full opportunity to present to the Court any evidence he or she desired the Court to consider. During this hearing, both parties, after conferring with their respective counsel, agreed to the relief requested by [Arnold]. This Court, however, independently found that there was sufficient evidence to support the issuance of a Final Order Of Protection From Abuse, in this cause, to protect [Arnold]."

On January 10, 2017, Robinson filed his notice of appeal.

On February 6, 2017, Robinson filed a "Motion for Statement of Evidence" with this court, noting that no transcript had been made of the final hearing and attaching his own affidavit setting forth his statement of what he asserted had transpired at the proceedings. On February 14, 2017, this court denied Robinson's motion on the basis that he had not complied with the procedure set forth in Rules 10(d) and 10(f), Ala. R. App. P. (establishing procedure for providing a statement of the evidence when no transcript is available).

Discussion

On appeal, Robinson first argues that the trial court erred in declining to hold a hearing on his postjudgment motion.

" 'This court has held that
" ' "[g]enerally, a movant who requests a hearing on his or her postjudgment motion is entitled to such a hearing. Rule 59(g), Ala. R. Civ. P.; Flagstar Enters., Inc. v. Foster, 779 So.2d 1220, 1221 (Ala. 2000). A trial court's failure to conduct a hearing is error. Flagstar Enters., 779 So.2d at 1221."
" ' Dubose v. Dubose, 964 So.2d 42, 46 (Ala. Civ. App. 2007) ; see also Staarup v. Staarup, 537 So.2d 56, 57 (Ala. Civ. App. 1988) ("[ Rule 59(g) ] mandates that, when a hearing is requested on a motion for new trial, the hearing must be granted.").
" '[However], this court has recognized an exception to the general rule that the denial of a postjudgment motion without conducting a requested hearing is reversible error. See Gibert v. Gibert, 709 So.2d 1257, 1258 (Ala. Civ. App. 1998) ("A trial court errs by not granting a hearing when one has been requested pursuant to Rule 59(g) ; however, that error is not necessarily reversible error."). "On appeal, ... if an appellate court determines that there is no probable merit to the motion, it may affirm based on the harmless error rule." Palmer v. Hall, 680 So.2d 307, 307-08 (Ala. Civ. App. 1996) ; see also Lowe v. Lowe, 631 So.2d 1040, 1041 (Ala. Civ. App. 1993) ("Denial of a Rule 59 motion without a hearing is reversible error if the movant requested a hearing and harmful error is found."). The Alabama Supreme Court has stated:
" ' "Harmless error occurs, within the context of a Rule 59(g) motion, where there is either no probable merit in the grounds asserted in the motion, or where the appellate court resolves the issues presented therein, as a matter of law, adversely to the movant, by application of the same objective standard of review as that applied in the trial court."
" ' Greene v. Thompson, 554 So.2d 376, 381 (Ala. 1989). However, "[w]hen there is probable merit to the motion, the error cannot be considered harmless." Dubose, 964 So.2d at 46.'
" Wicks v. Wicks, 49 So.3d 700, 701 (Ala. Civ. App. 2010)."

Weiss v. Nave, 148 So.3d 1086, 1088 (Ala. Civ. App. 2014).

In Robinson's postjudgment motion, he argued that there was insufficient evidence to support the protection-from-abuse judgment, that the trial court had violated his constitutional rights to confront the accuser and to present evidence, and that there was no evidence of abuse as defined in Ala. Code 1975, § 30-5-2. As noted previously, in its order denying the postjudgment motion, the trial court refuted Robinson's arguments concerning what had transpired at the hearing; specifically, the trial court asserted that both Robinson and Arnold had been present at the hearing, that both parties had had the opportunity to present evidence, that both parties had agreed to the entry of the protection-from-abuse judgment, and that there was sufficient evidence to support the entry of the judgment.

It is well established that "the party claiming error has the burden of showing error on the record and resulting injury." Dale Cty. Dep't of Pensions & Sec. v. Robles, 368 So.2d 39, 43 (Ala. Civ. App. 1979) ; see also Watson v. McGee, 348 So.2d 461, 463 (Ala. 1977) ("The appellant must not only establish error but also must show that he was probably prejudiced by the error.").

" ' " 'This court cannot assume error, nor can it presume the existence of facts [as] to which the record is silent.' The appellant has the burden of ensuring that the record contains sufficient evidence to warrant reversal." ' White v. Riley Constr., Inc., 745 So.2d 877, 879 (Ala. Civ. App. 1999) (quoting Alfa Mut. Gen. Ins. Co. v. Oglesby, 711 So.2d 938, 942 (Ala. 1997) ); see also Martin v. Martin, 656 So.2d 846, 848 (Ala. Civ. App. 1995) ('An error asserted on appeal must be affirmatively demonstrated by the record, and if the record does not disclose the facts upon which the asserted error is based, such error may not be considered on appeal.')."

Kimbrough v. Kimbrough, 963 So.2d 662, 665-66 (Ala. Civ. App. 2007).

In this case, the record on appeal does not contain a transcript of the final hearing or a Rule 10(d), Ala. R. App. P., statement of the evidence. In Gibert v. Gibert, 709 So.2d 1257 (Ala. Civ. App. 1998), the issue on appeal was whether the trial court in that case had erred by declining to hold a hearing on the husband's postjudgment motion. In Gibert, like in this case, there was no transcript of the hearing included in the record on appeal. This court held that, because we could not determine that the arguments presented in the husband's postjudgment motion were meritless, we could not hold that the trial court's error in declining to hold a hearing on that motion was harmless; therefore, we reversed the trial court's judgment and remanded the cause for further proceedings. 709 So.2d at 1259. Judge Crawley dissented to the main opinion, stating:

"Without a transcript of the hearing on the wife's motion to modify the divorce judgment, there is no way for this court to determine whether the wife's arguments have probable merit. We cannot put the trial court in error without knowing what issues were litigated and resolved at the hearing and what the factual basis for the court's judgment was.
"As the appellant, the wife has the duty of seeing that any error asserted on appeal is affirmatively demonstrated by the record. See Perkins v. Perkins, 465 So.2d 414 (Ala. Civ. App. 1984). If the record does not disclose the facts upon which the asserted error is based, the error may not be considered on appeal. Liberty Loan Corp. of Gadsden v. Williams, 406 So.2d 988 (Ala. Civ. App. 1981). Evidence presented to the trial court but not preserved in the record on appeal is conclusively presumed to support the trial court's judgment. English v. English, 352 So.2d 454 (Ala. Civ. App. 1977). See generally Greer v. Greer, 624 So.2d 1076 (Ala. Civ. App. 1993). I would affirm the trial court's denial, without a hearing, of the wife's post-judgment motion."

709 So.2d at 1259 (Crawley, J., dissenting).

Considering the aforementioned well-established law, including binding law from our supreme court, see Ala. Code 1975, § 12-3-16, and Watson, 348 So.2d at 463, holding that an appellant has the duty to show on the record that any error was prejudicial, we agree with Judge Crawley's dissent in Gibert. When an appellant fails to provide a transcript or a statement of the evidence, this court presumes that the omitted evidence fully supports the determination of the trial court. In this context, we must presume that the transcript would reveal that the trial court afforded Robinson due process and that the evidence fully sustains its judgment so that Robinson was not harmed by the failure of the trial court to conduct a hearing on his postjudgment motion. To the extent that Gibert holds otherwise, we hereby overrule that decision.

Similarly, we are unable to address the merits of Robinson's other arguments-that there was insufficient evidence to support the protection-from-abuse judgment and that the trial court violated his constitutional rights to confront the accuser and to present evidence-because of Robinson's failure to provide this court with a transcript of the final hearing or a Rule 10(d) statement of the evidence. Kimbrough, 963 So.2d at 665-66.

The trial court's judgment is affirmed.

AFFIRMED.

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


text:
    Felicia WOJTALA v. Thomas WOJTALA
    2150784
    Court of Civil Appeals of Alabama.
    June 23, 2017
    Dustin J. Fowler and Ellie L. Parker of Buntin, Etheredge & Fowler, LLC, Dothan, for appellant.
    William K. Bradford of Bradford Ladner, LLP, Mountain Brook, for appellee.
   THOMPSON, Presiding Judge.

On September 16, 2014, Felicia Wojtala ("the mother") filed in the Henry Circuit Court ("the trial court") a complaint seeking a divorce from Thomas Wojtala ("the father"). In her complaint, the mother sought an award of joint legal and joint physical custody of the parties' two minor children, an equitable property division, and an award of alimony and child support. The mother also requested pendente lite support. The father answered and counterclaimed, seeking an award of joint legal and joint physical custody of the parties' minor children and a division of the parties' marital property.

The mother filed three separate motions seeking pendente lite support, and the trial court conducted a hearing on those motions on January 29, 2015. Although the parties refer to an "order" issued by the trial court following that January 29, 2015, hearing, no pendente lite support order is contained in the record or was entered on the State Judicial Information System. In his brief on appeal, the father refers to that pendente lite "order" as a "verbal" order or instruction. It appears from the parties' references, both below and in their briefs to this court, to that pendente lite "order" that the trial court orally instructed the father to pay household bills pending the final hearing on the merits.

The trial court conducted a hearing on the parties' claims, and on May 6, 2016, it entered an order in which it awarded custody of the parties' minor children to the mother, ordered the father to pay child support, and divided the parties' marital property. The mother filed a purported postjudgment motion, which the trial court denied, and the mother appealed.

This court remanded the action to the trial court for a determination of the mother's claim for postminority support for the parties' minor children. On February 23, 2017, the trial court entered a judgment in which it denied the postminority-support claim. This court later again remanded the action for the trial court to rule on all of the pending property-division claims. On March 30, 2017, the trial court entered an order awarding the mother 20% of the father's military-retirement benefits. That order, because it disposed of the last of the pending claims between the parties, constituted a final judgment. See Smith v. Butler-Austin, 108 So.3d 1014, 1020 (Ala. Civ. App. 2012) (opinion on return to remand) ("Those judgments disposed of the remaining pending claims between the parties and, therefore, constituted a final judgment in this matter.").

The record reveals the following pertinent facts. The parties married in August 1985. Two children were born of the parties' marriage; at the time of the entry of the divorce judgment, those two children were no longer minors. During their marriage, the parties had also adopted two children, both of whom were still minors at the time of the entry of the divorce judgment. For the purpose of this opinion, we refer to those two minor children as "the son" and "the daughter." The son and the daughter have special needs. The State of Hawaii, where the son and the daughter were adopted, provides a stipend for the children that they will continue to receive until they reach the age of majority. The son reached the age of majority for Hawaii, i.e., 18 years of age, in May 2016. See Haw. Rev. Stat. § 577-1 ; but see § 26-1-1, Ala. Code 1975 (the age of majority in Alabama is 19). The daughter will reach the age of majority for Hawaii in December 2017.

The son has had some behavioral problems, and the mother testified that he has Attention-Deficit Disorder ("ADD") and Attention-Deficit/Hyperactivity Disorder ("ADHD"). The daughter has bipolar disorder , and she lived in a treatment facility for all except one month of the nearly two-year period during which the parties were separated. The daughter's treatment in that facility was paid by Medicaid. During the time she was in that in-patient treatment facility, the mother continued to receive the stipend for both the son and the daughter; we note that the father received and deposited that stipend for several months following the parties' separation when the son was living with him. The mother admitted she had spent little to none of the adoption stipend on the daughter during the time the daughter was in the treatment facility.

The mother testified that she received $300 in income every two weeks from a restaurant owned by her boyfriend and in which she worked; the father's questioning of the mother could have made the trial court question the veracity of the mother's claimed income. Regardless, the mother conceded that she had, until recently, worked for $9 an hour and that she was capable of earning at that income level for full-time employment.

The father has retired from the military, and he receives $3,353.52 monthly in military-retirement income. In addition, the father testified that he earned $50 per hour as a maintenance test pilot for the Army Fleet Support. The father testified that his income from that job was approximately $90,000 in the year before the divorce hearing.

In its divorce judgment, the trial court determined that, under the Rule 32, Ala. R. Jud. Admin., child-support guidelines, the father's child-support obligation for the son and the daughter should be $1,594.01. We note that the record on appeal does not contain the child-support forms that Rule 32 and our caselaw require be submitted to the trial court and included by the trial court in its judgment. Lightel v. Myers, 791 So.2d 955, 961 (Ala. Civ. App. 2000). However, the trial court then credited the father with the entire $1,352 monthly adoption stipend for those children, and it thereby reduced the father's child-support obligation and ordered the father to pay $242 per month as child support.

The mother argues on appeal that the trial court erred in offsetting the father's child-support obligation by affording him a credit in the amount of the adoption subsidy received for the benefit of the son and the daughter. In W.R. v. C.R., 75 So.3d 159 (Ala. Civ. App. 2011), this court held that an adoption subsidy could not serve as a credit against a support-paying spouse's child-support obligation. In that case, the mother was awarded custody of the parties' adopted special-needs children, and the father argued that he should receive a credit for at least half of the amount of the adoption subsidy the parties received as a result of adopting the special-needs children. This court analyzed whether an adoption subsidy for special-needs children is intended to be a substitute for a parent's income or a supplement to that income. This court noted that payments from a third-party source may be offset against a child-support obligation if those third-party payments are intended to be a substitute for the parent's income, but that no offset was available if the third-party payments are intended to be a supplement to the parent's or parents' income. 75 So.3d at 166-67. The court also pointed out that, had the parents not divorced, the children would have had the benefit of both parents' income together with the adoption subsidy. This court concluded that "the adoption subsidy is supplemental to the adoptive parents' income, and, as such, the subsidy cannot serve as a credit against the father's child-support obligation." W.R. v. C.R., 75 So.3d at 169.

After reaching that conclusion in W.R. v. C.R., supra, this court noted that the father had argued that the trial court should have deviated from the Rule 32 child-support guidelines. " 'A trial court has the discretion to deviate from the child support guidelines in situations where it finds the application of the guidelines would be manifestly unjust or inequitable.' " W.R. v. C.R., 75 So.3d at 169 (quoting State ex rel. Golden v. Golden, 710 So.2d 924, 926 (Ala. Civ. App. 1998) ). This court held that, under the facts of that case, the trial court had not abused its discretion in refusing to deviate from the child-support guidelines.

The father in this case, arguing in support of the trial court's judgment, contends that the trial court deviated from the Rule 32 child-support guidelines in reaching that part of its judgment pertaining to child support. The father cites a case from Minnesota in which the court held that, in addition to considering the parents' ability to meet the child's needs, the Minnesota child-support statutes required that the needs and financial resources of the child could be considered in determining child support. See Strandberg v. Strandberg, 664 N.W.2d 887 (Minn. Ct. App. 2003). In that case, however, the father's ability to pay child support was at issue because of his low income.

"In this case, excluding the adoption subsidy from consideration in setting child support produces an unreasonable result. The overarching policy of the child support statute is to ensure that children's needs are met. Murphy v. Murphy, 574 N.W.2d 77, 81 (Minn. App. 1998). The child support statute and guidelines are also based on the obligor's ability to pay. Schneider [v. Schneider ], 473 N.W.2d [329,] 332 [ (Minn. Ct. App. 1991) ]. In light of those principles, it is reasonable to consider the adoption subsidy as a resource available for meeting the child's needs, particularly in cases like this where the obligor parent cannot cover his own expenses. It is inappropriate to have litigants pushed into poverty by child support obligations that are set without considering all of the resources available to meet the needs of the child. Accordingly, we conclude that the adoption subsidy should be considered a resource of the child when determining child support."

Strandberg v. Strandberg, 664 N.W.2d at 890.

The father in this case does not contend, as did the father in the Minnesota case on which he relies, that he is financially unable to contribute to the support of the son and the daughter. Indeed, although the trial court did not include in its judgment the child-support forms required by Rule 32(E), see Lightel v. Myers, supra, the father's testimony establishes that his monthly income exceeds $10,000. Rather, the father contends that the adoption subsidy is received and controlled solely by the mother and, therefore, that he is entitled to a credit for the entire amount of the adoption subsidy. The father argues that the trial court "could have" deviated from the child-support guidelines and determined that the father's child-support obligation should be offset by the adoption subsidy.

We disagree. The adoption subsidy is supplemental to the parents' incomes. W.R. v. C.R., supra. The father has criticized the manner in which the mother has managed the adoption subsidy, but, in doing so, the father has made no request other than that he receive credit for the entire subsidy; in other words, the father's position would mean that the State of Hawaii, through the adoption subsidy, would pay the greater part of his child-support obligation, such that the son and the daughter would not receive the benefit of both parents' incomes in addition to the supplemental income provided through the adoption subsidy.

We conclude that the trial court improperly afforded the father credit for the adoption subsidy, and, therefore, we reverse the trial court's child-support award. Upon remand, in addition to considering the adoption subsidy to be a supplement to both parents' incomes, the trial court is instructed to include in its judgment on remand the forms required by Rule 32(E), Ala. R. Jud. Admin. Lightel v. Myers, supra. Further, if the trial court determines that it should deviate from the child-support guidelines, that judgment should contain the findings necessary to support a deviation.

"Rule 32(E), Ala. R. Jud. Admin., ' " 'mandates the filing of a standardized Child Support Guidelines Form and a Child Support Obligation Income Statement/Affidavit Form.' " ' M.S.H. v. C.A.H., 829 So.2d 164 (Ala. Civ. App. 2002) (quoting Thomas v. Norman, 766 So.2d 857, 859 (Ala. Civ. App. 2000), quoting in turn Martin v. Martin, 637 So.2d 901, 902 (Ala. Civ. App. 1994) ) (emphasis omitted). ' "Compliance with Rule 32(E) is mandatory, even though the trial court may find that the application of the guidelines would be unjust or inequitable." ' M.S.H. v. C.A.H., 829 So.2d at 169 (quoting Thomas, 766 So.2d at 859 ). When the court determines that the application of the guidelines would be manifestly unjust or inequitable and then deviates from those guidelines in setting a support obligation, the court must make the findings required by Rule 32(A)(ii), Ala. R. Jud. Admin. M.S.H. v. C.A.H., supra (citing Thomas, 766 So.2d at 859 ). Rule 32(A), Ala. R. Jud. Admin., allows the trial court to deviate from the guidelines so long as the deviation is based on 'evidence presented in court' contained in a 'written finding on the record.' In other words, the subsection requires the trial court to state a reason justifying its deviation from the guidelines. However, because child support is for the benefit of the minor child, see State ex rel. Shellhouse v. Bentley, 666 So.2d 517, 518 (Ala. Civ. App. 1995), the best interest of the child is the controlling consideration of the trial court in any action seeking to modify child support. Gautney v. Raymond, 709 So.2d 1279, 1281 (Ala. Civ. App. 1998)."

DeYoung v. DeYoung, 853 So.2d 967, 969-70 (Ala. Civ. App. 2002).

The mother also argues that the trial court erred in failing to require the father to pay postminority support for the son and the daughter. In Ex parte Brewington, 445 So.2d 294 (Ala. 1983), our supreme court held that a court can require parents to financially support a mentally or physically disabled adult child who cannot support himself or herself because of a disability that existed before the child reached the age of majority. Recently, in Ex parte Christopher, 145 So.3d 60 (Ala. 2013), our supreme court held that, for purposes of requiring parents to contribute to the support of their children, the term "children" does not include adult children, and, therefore, our supreme court held that the courts may not order a parent to contribute to the postminority educational support, i.e., college expenses, of an adult child. In reaching that holding, our supreme court did not rule on the issue of whether a parent could be required to contribute to the postminority support of a disabled child. Ex parte Christopher, 145 So.3d at 66 ("Regardless of whether the common law might have recognized an obligation to support disabled children past their majority, an issue not before us, it certainly never contemplated granting a divorce court the power to require payment for postminority educational expenses."). In Knepton v. Knepton, 199 So.3d 44, 47 (Ala. Civ. App. 2015), this court held that, with regard to the support of an adult disabled child, " Ex parte Brewington remains good law at this point."

" 'To award [ Brewington ] support, the trial court must (1) determine that the adult child is not capable of earning an income sufficient to provide for his or her reasonable living expenses and (2) that the adult child's mental or physical disability is the cause of his or her inability to earn that income.' "

Knepton v. Knepton, 199 So.3d at 47 (quoting Ex parte Cohen, 763 So.2d 253, 256 (Ala. 1999), and reversing the dismissal of the mother's postminority-support claim, concluding that "the allegations in the mother's complaint, if proven, would authorize the trial court to grant the equitable relief the mother Ex parte Brewington.").

In its February 23, 2017, judgment denying the postminority-support claim, the trial court stated that the parties had presented little evidence pertaining to the son and the daughter's disabilities and their abilities to earn a living to support themselves. With regard to the son, we agree. The mother presented evidence indicating that the son has ADD and ADHD. The son was working, apparently after school, in the same restaurant in which the mother works. Although the mother expressed concern about his future earning potential, she did not present evidence tending to indicate that the son was disabled and could not be self-supporting.

However, the evidence indicated that the parties' daughter's disability was diagnosed when she was 11 years old; the father testified that the daughter has bipolar disorder. The daughter has been hospitalized, off and on, in mental-health institutions since she became a teenager. As previously mentioned, as a result of her mental-health issues, the daughter, who was 16 years old at the time of the divorce hearing, had resided in a treatment facility for the vast majority of the 2 years preceding that hearing. The parties and the son each testified that, when she was discharged from the mental-health facilities, the daughter remained home only briefly; each agreed that the daughter's behavior quickly resulted in her being institutionalized again.

The trial court is correct that the mother did not specifically present evidence indicating that the then 16-year-old daughter could not support herself in the future. However, the evidence the mother did present indicates that the daughter is nearing the age of majority and, in the two years preceding the hearing, had not been able to remain in a home environment for more than a month without requiring further in-patient treatment. It is clear from the evidence regarding her frequent and lengthy hospitalizations that the daughter will not be capable of supporting herself in the near future. Thus, given the facts of this case, we cannot agree with the trial court's determination that the mother failed to present evidence regarding the daughter's specific disability or the fact that the daughter is unlikely to be able to support herself in the future.

In that part of its judgment addressing the issue of postminority support, the trial court focused on the lack of evidence pertaining to the daughter's likely future financial needs and her possible sources of income. The trial court concluded by stating that it could "move forward on further remand should the Court of Civil Appeals direct further hearings or the parties can file a petition for modification." The trial court's conclusion is in line with precedent from this court providing that support for an adult disabled child can be sought and determined even after that child reaches the age of majority, as long as the disability "occurred during the child's minority and continued thereafter." Elliott v. Bretherick, 555 So.2d 1109, 1111 (Ala. Civ. App. 1989).

"[I]f a mentally or physically dependent child continues to be disabled beyond minority and support is needed and the non-custodial parent is able to contribute toward that need, the duty to support can be enforced through proceedings such as were instituted in the present case, although the original divorce judgment contained no provision for that child's support and the trial court did not expressly retain the right to order such support in the future. The age of such a disabled child at the time of the divorce or at the time that the Brewington support duty is sought to be enforced is immaterial as long as the disability occurred during the child's minority and continues thereafter. Kruvant [v. Kruvant], [100 N.J.Super 107, 241 A.2d 259 (1968) ]."

Martin v. Martin, 494 So.2d 97, 100 (Ala. Civ. App. 1986). See also Ruberti v. Ruberti, 117 So.3d 383, 387 (Ala. Civ. App. 2013) (parent with custody of an adult disabled child awarded postminority support for that child in a modification action initiated after the child reached the age of majority); Martin v. Martin, 623 So.2d 1167, 1170 (Ala. Civ. App. 1993) (holding that postminority support for an adult disabled child "can be ordered regardless of the age of the disabled child at the time of the divorce and that the amount of that support is determined after giving consideration to the child's needs, the child's income through [some forms of] Social Security or other similar sources, and the parent's ability to respond to the child's needs"); Lightel v. Myers, 791 So.2d at 958 ("Should the [adult disabled] children obtain employment and successfully contribute to their own support in the future, the father may petition the trial court for a modification of his child-support obligation."); and Skates v. Skates, 520 So.2d 525, 526 (Ala. Civ. App. 1988) (affirming a modification judgment requiring a noncustodial parent to continue to contribute to the support of his adult disabled child past the age of majority). Accordingly, we affirm the trial court's denial, at this time, of postminority support for the daughter, as well as that part of its judgment providing that the issue may again be addressed, if necessary, in a modification action.

The mother also argues that the trial court erred in its division of property. When a trial court fashions a property division following the presentation of ore tenus evidence, its judgment as to that evidence is presumed correct on appeal and will not be reversed absent a showing that the trial court exceeded its discretion or that its decision is plainly and palpably wrong. Roberts v. Roberts, 802 So.2d 230, 235 (Ala. Civ. App. 2001) ; Hall v. Mazzone, 486 So.2d 408, 410 (Ala. 1986). A property division is required to be equitable, not equal, and a determination of what is equitable rests within the broad discretion of the trial court. Parrish v. Parrish, 617 So.2d 1036, 1038 (Ala. Civ. App. 1993). In fashioning a property division and an award of alimony, the trial court must consider factors such as the earning capacities of the parties; their future prospects; their ages, health, and station in life; the length of the parties' marriage; the source, value, and type of marital property; and the conduct of the parties in relation to the breakdown of the marriage. Robinson v. Robinson, 795 So.2d 729, 734 (Ala. Civ. App. 2001).

During the ore tenus hearing, the parties testified to the valuations of their items of marital property by referencing an exhibit apparently prepared by the father. The mother offered that exhibit into evidence, and the trial court admitted it into evidence. In her brief on appeal, the mother relies on the valuations in that exhibit in making her argument on this issue to this court, and the father has also referenced that exhibit and the valuations on it. The father does not dispute the mother's valuations, in her brief on appeal, of the respective awards of marital property set forth in the divorce judgment; he does, however, cite testimony from the mother that indicates that she had a mutual-fund account with a value of approximately $114,000 that is not listed on the exhibit on which the trial court relied in fashioning its property division. Although the parties do not dispute the valuation of the property as divided by the trial court, they disagree about whether that property division was equitable. Because the parties agree about the value of the assets as set forth on the exhibit submitted into evidence by the mother, and as divided by the trial court, we conclude that it is not necessary to set forth a list of each marital asset and its corresponding monetary value.

In her brief on appeal, the mother maintains that the trial court awarded her marital assets with a total value of $354,278; that award included the marital home, subject to its mortgage indebtedness. The trial court awarded the father assets with a total value of $517,428. Thus, the mother argues, and the father does not dispute, that the father was awarded 59% of the marital assets and the mother was awarded 41% of those assets. The mother also maintains that, in the property division, the trial court awarded the father 95% of the parties' liquid or semi-liquid assets, in the forms of retirement accounts, bank accounts, and investments. We note that the mother did not alter that argument in her brief submitted after remand, and, therefore, in making that argument, the mother disregards the amount in military-retirement benefits she was awarded in the March 30, 2017, judgment.

The father was in the Army for more than 20 years, and the family moved frequently. The mother testified that the frequent moves for the father's employment prevented her from advancing in any job. At the time of the divorce hearing, the father was receiving $3,353.22 per month in military-retirement benefits, and he continued to work at a rate of $50 per hour; the father claimed to have earned, in addition to his military-retirement income, $90,000 in 2015. The mother testified that, at the time of the divorce hearing, she earned $300 every two weeks, but she did not dispute that she was capable of full-time employment at $9 per hour.

The father testified that he believed the mother had had an affair in 2006 or 2007, when he was serving in Iraq. The father testified that, in December 2012, he discovered "intimate" e-mails between the mother and that man, indicating that that relationship had resumed, and the father stated that he confronted the mother about that relationship. The parties did not separate at that time, but the father testified that he believed that relationship caused the breakdown of the parties' marriage. The father testified that, in March 2014, he discovered that the mother's relationship with that man had continued. In his answer to the mother's complaint, the father alleged that the parties had separated in March 2014. The mother admitted that she had been texting and communicating with that man at approximately the time of the parties' separation, but she denied that that relationship had led to the breakdown of the parties' marriage. The mother testified that her relationship with that man had ended.

The father testified that, at the time of the divorce hearing, the mother was living with a different man ("the boyfriend") than the one he believed she was seeing during the marriage. The mother testified that she met the boyfriend well after the parties separated and that she had assisted him in opening a restaurant. The mother admitted that the boyfriend comes to her home daily and that he drives one of the vehicles the parties owned during their marriage.

The parties were married for approximately 29 years, and they had 4 children. At the time of the divorce hearing, the mother was 50 years old and the father was 51 years old. The mother argues that, given the parties' ages and prospective earning abilities, the trial court erred in fashioning its property division; she also contends that she should have been awarded one-half of the father's military-retirement benefits. The father contends in his original brief submitted to this court, however, that the property division, while favoring him, was not inequitable. See Parrish v. Parrish, supra (a property division must be equitable, but is not required to be equal). The property division, as calculated by the parties, indicates that the trial court awarded the father 59% of the parties' marital assets listed on the exhibit submitted to the trial court; the wife received 41% of those assets. In addition, there is evidence indicating that the mother had a mutual-fund account in her name that was not listed on that exhibit. The trial court also awarded the mother 20% of the father's military-retirement benefits, which amounts to an award to the mother of approximately $670 monthly.

The parties were married for 29 years. They are approximately the same age, but the father's prospects for earning income are much higher than the mother's. The record indicates that the mother's earning potential has been impacted by the parties' frequent moves necessitated by the father's career during their 29-year marriage. However, a trial court may also consider the fault of the parties with regard to the breakdown of the marriage when fashioning its property division. In this case, although the trial court divorced the parties on the basis of incompatibility, the evidence supports a conclusion that the mother's relationship with another man resulted in the breakdown of the parties' marriage. " ' "[E]ven where the parties are divorced on the grounds of incompatibility, the conduct of the parties and fault with regard to the breakdown of the marriage are factors for the trial court to consider in fashioning its property division." ' " Culver v. Culver, 199 So.3d 772, 777 (Ala. Civ. App. 2016) (quoting Ex parte Drummond, 785 So.2d 358, 363 (Ala. 2000), quoting in turn Myrick v. Myrick, 714 So.2d 311, 315 (Ala. Civ. App. 1998) ). This court might not have reached the same property division as did the trial court. However, given the facts of this case and the arguments of the parties, we cannot say that the mother has demonstrated that the trial court erred in fashioning its property division and its division of the father's military-retirement income.

We affirm the trial court's property division. We reverse the child-support award and the trial court's determination not to reserve the issue of postminority support for the daughter, and we remand the cause for the entry of a judgment in compliance with this opinion. We pretermit discussion of the mother's argument on appeal that the trial court erred in failing to conduct a hearing on her postjudgment motion.

The mother's request for an attorney fee on appeal is denied.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

Pittman and Thomas, JJ., concur.

Donaldson, J., concurs specially.

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

DONALDSON, Judge, concurring specially.

I concur. Regarding the claim for postminority support, this court must apply Ex parte Brewington, 445 So.2d 294 (Ala. 1983), despite any conflict with Ex parte Christopher, 145 So.3d 60 (Ala. 2013). See Knepton v. Knepton, 199 So.3d 44, 48 (Ala. Civ. App. 2015) (Donaldson, J., concurring in the result).

      In their briefs submitted to this court, neither party submitted a "statement of jurisdiction" that was compliant with Rule 28(a)(3), Ala. R. App. P., and neither party addressed whether the order from which the appeal was taken was final.

      The child-support provision of the divorce judgment reads:
      "The mother currently receives from the State of Hawaii monthly stipends for the adopted children which total $1,352 per month or $676 per child. This support is ongoing and is paid in accordance with the provisions of Hawaii State Law. The Court recognizes that payment. In utilizing the Alabama Child Support Guidelines, the Court finds that the [father] should pay a total of $1,594.01 in child support to the custodial parent [ (the mother) ]. Accordingly, the father is to pay $242 to the mother as child support in addition to that received from the State of Hawaii. Said child support commences immediately and shall be due and payable on the 1st day of each month thereafter until each child reaches the age of majority according to the Law of the State of Alabama or shall marry, die or otherwise become emancipated. When each child reaches the age of majority, becomes married, dies or otherwise is emancipated the child support shall be reduced pro-rata by 50%. In the event that the stipend from the State of Hawaii is increased or decreased the child support shall be subject to modification."

      At the time of the divorce hearing, the daughter's expenses were paid by Medicaid and a program through which she was institutionalized. However, it is possible that the daughter will need postminority support because of her disability.

      The father had five retirement accounts with a total value of $182,176, and the parties owned stocks with a value of $6,380; all of those assets were awarded to the father. The mother was awarded bank accounts with lower values or that had been largely depleted during the pendency of the divorce action.

      As indicated earlier in this opinion, the father questioned the veracity of the mother's claim that she received only $300 in income every two weeks.

      We note that, after this court remanded the action and the trial court entered its March 30, 2017, final judgment, this court offered the parties the opportunity to submit amended briefs to this court, pursuant to Rule 28A, Ala. R. App. P., and that both parties indicated they would do so. In his amended brief after remand, the father argues that the trial court erred by awarding the wife any portion of his military-retirement benefits. However, the father did not file a cross-appeal challenging that award, and, therefore, this court is precluded from addressing his argument. The law of Alabama is well settled on this point. See McMillan, Ltd. v. Warrior Drilling & Eng'g Co., 512 So.2d 14, 24 (Ala. 1986) ("In the absence of taking an appeal, an appellee may not cross-assign as error any rulings of the trial court adverse to appellee."); see also Burns v. Motors Ins. Corp., 530 So.2d 824, 829 (Ala. Civ. App. 1987) ; and Smith v. Logan, 429 So.2d 598, 601 (Ala. Civ. App. 1982).