text:
    A.J. v. In re: Z.D.J., minor child
    2150867
    Court of Civil Appeals of Alabama.
    08/31/2016
   Dismissed.


source: Caselaw Access Project

license: Public Domain

text:
    B.H. v. E.A. and B.A.
    2150873
    Court of Civil Appeals of Alabama.
    09/26/2016
   Dismissed,


text:
    Jovita CARTER v. William SLOAN
    2150895
    Court of Civil Appeals of Alabama.
    09/12/2016
   Dismissed.


text:
    T.S.B. v. A.C.
    2150898
    Court of Civil Appeals of Alabama.
    09/07/2016
   Dismissed.


text:
    CASUAL CLASS CATERING, INC. v. ALABAMA DEPARTMENT OF REVENUE
    2150900
    Court of Civil Appeals of Alabama.
    08/24/2016
   Dismissed.


text:
    EX PARTE Jennifer DAY (In re: Jennifer Marie Day v. Jerry L. Day)
    2150909
    Court of Civil Appeals of Alabama.
    09/15/2016
   Dismissed.


text:
    Jim H. BALL, Jr. v. Sam LUSCO
    2150930
    Court of Civil Appeals of Alabama.
    09/27/2016
   Dismissed.


text:
    EX PARTE T.C.M. and C.N.M. (In re: T.C.M. and C.N.M. v. In re: M.M.M., a minor child)
    2150935
    Court of Civil Appeals of Alabama.
    09/16/2016
   Dismissed.


text:
    EX PARTE A.L.P. (In re: A.L.P., minor child)
    2150954
    Court of Civil Appeals of Alabama.
    09/06/2016
   Mand. pet. denied.


text:
    EX PARTE A.B. (In re: A.B. v. Hon. Lori Collier Ingram, District Court Judge, Houston County)
    2150964
    Court of Civil Appeals of Alabama.
    09/29/2016
   Mand. pet. denied.


text:
    Courtney McBride SAFFOLD and Kevin Saffold v. Curtis POLAND
    2150973
    Court of Civil Appeals of Alabama.
    09/29/2016
   Dismissed.


text:
    Jonathan Ross MITTON v. ALABAMA DEPARTMENT OF PUBLIC SAFETY
    2150975
    Court of Civil Appeals of Alabama.
    09/22/2016
   Dismissed.


text:
    Michael B. CARDEN v. Ashley L. MILLER
    2150983
    Court of Civil Appeals of Alabama.
    09/27/2016
   Dismissed.


text:
    Stacia CROMARTIE v. The LAW OFFICE OF E. PEYTON FAULK et al.
    2150989
    Court of Civil Appeals of Alabama.
    09/29/2016
   Transferred to Sup. Ct. for lack of subject-matter jurisdiction.


author: DONALDSON, Judge.

text:
    ATLANTIS ENTERTAINMENT GROUP, LLC v. CITY OF BIRMINGHAM
    2150521
    Court of Civil Appeals of Alabama.
    January 13, 2017
    Rehearing Denied March 10, 2017

      S. Phillip Bahakel and Donna J. Beau-lieu of S. Phillip Bahakel & Associates, Pelham, for appellant.
    Nicole E. King and Pamela T. Jones, asst, city attys., City of Birmingham Department of Law, Birmingham, for appel-lee.
   DONALDSON, Judge.

Atlantis Entertainment Group, LLC (“Atlantis”), appeals from the judgment of the Jefferson Circuit Court (“the trial court”) affirming the resolution of the City of Birmingham (“the City”) that revoked Atlantis’s business licenses and rescinded approval of Atlantis’s division I dance permit and special retail liquor license. We affirm the judgment.

Facts and Procedural History

Atlantis operated a nightclub and event venue (“the nightclub”) in a building located within the territorial limits of the City. The building is in a shopping center that included a barbershop, a convenience store, a car wash, and a gas station.' Daniel Vu, who is described in the record as the owner of Atlantis, also owns the properties in which the nearby businesses are located. An apartment complex is adjacent to those properties.

In 2012, the Birmingham City Council (“the city council”) issued resolutions approving of Atlantis’s applications for a special retail liquor license and a dance permit. Atlantis began operating under that license and permit. The City also issued business licenses to Atlantis, but the record does not indicate when those licenses were issued.

On July 28, 2015, the city council conducted a public hearing (“the city council hearing”) to consider revoking Atlantis’s business licenses and rescinding its approval of Atlantis’s special retail liquor license and dance permit. At the city council hearing, Steven Hoyt, a city council member, and Julie Barnard, a representative from the legal department of the City, both reported that the City had received a number of complaints about the operation of Atlantis. Although Hoyt praised Vu’s operation of Atlantis, he stated that Vu had since turned over the operation of the business to other people. Hoyt expressed his concern for the safety of the patrons of Atlantis and residents living near the nightclub. Other council members also expressed their concerns over events that had been advertised and held by Atlantis.

Ralph- Patterson, a detective with the Birmingham Police Department and an investigator for the Alabama Public Safety Commission, stated that the city council members had been provided at the city council hearing with 12 police reports associated with Atlantis’s operations. According to Patterson’s statement, the police reports that were dated within six months of the hearing included descriptions of one false alarm, three incidents of assault resulting in injuries by gunshot, three incidents of shootings into occupied buildings, two incidents of shootings into occupied motor vehicles, and one incident involving the serving of an arrest warrant. Earlier police reports dated from October 26, 2014, to January 19, 2015, included incidents of harassment, a theft of personal property, a motor-vehicle break-in, a stolen motor vehicle, and a false alarm.

Jeremy Cooper, a manager of Atlantis, along with Vu and his wife Stephanie Dang, spoke in favor of maintaining Atlantis’s licenses and permits. Vu discussed efforts that had been made by Atlantis to provide sufficient security personnel for events. Vu stated that he was not aware of any shootings that had occurred at the nightclub, and he questioned the accuracy of the addresses used in the police reports. Cooper stated that the incidents referenced in the police reports happened nearby but not on Atlantis’s property. In response to questions from city council members about the location of the reported shooting incidents, Patterson stated the following:

“Each incident report was done at a time when the club was open or closing. Those were Thursday nights, which fall into Friday, or Saturday nights, which go into Sunday morning.
“Each of these reports was done sometime between 11 p.m. and most often about 4 a.m. when this venue had been open. And the reports were done with a lot of specifics in the narrative of the incident reports where the individuals that are victims stated that they were leaving Club Atlantis when the shootings took place, whether they were shot in a vehicle, whether they were shot outside.
“The five incidents on the 16th of February, the first person that yelled at him in the narrative, LVP, LVP, LVP, and then they shot him.
“Then following that, there were four apartments adjacent to this location that were shot up.
“In all fairness, we want to be very fair to, not only ownership, the management, the patrons, but these are independent police reports that were done either by off-duty officers or officers that were called from the west precinct to the scene.”

Patterson stated that the police officers described the parking areas for patrons of Atlantis in their reports and further stated:

“There is parking directly across the street that they use. There is a car wash over there that is vacant. At night there is a barber shop that’s across the street they use for parking. But everything is in close proximity to this establishment.”

At the city council hearing, the city council voted unanimously to revoke all of Atlantis’s business licenses and permits and to rescind the approval of Atlantis’s liquor license. The city council issued á resolution on July 28, 2015, declaring the following:

“WHEREAS, [the city council] heard testimony from [Atlantis’s] representatives and the Birmingham Police Department related to the incidents and complaints at the business of persons injured or shot at or in the parking lot of Atlantis Center and damage to neighboring property that occurred in February and March, 2015; and,
“WHEREAS, [the city council] finds that the business activity as conducted by the licensee relates to the assaults and shootings at the property; and,
“WHEREAS, Ordinance No. 97-193, as amended, provides grounds for which [the city council] may revoke the business license for any business, including
“ ‘If the licensee, his agent, servant, or employee has operated the business for which the'license was issued, in such a manner as to be detrimental to the public health, safety or welfare or so as to constitute a nuisance’; and,
“WHEREAS, Ala. Code 1975, See. 28-l-6(a), prescribes conditions under which [the city council] can refuse its consent to a business’s licensing by the Alabama Alcoholic Beverage Control [ (‘ABC’) ] Board and whereas [the city council] may consider those reasons to rescind its consent to a business’s ABC license; and,
“WHEREAS, [the city council] finds the existence of conditions under Ala Code. 1975, Sec. 28-l-6(a)(l)b.2„ ‘Circumstances clearly detrimental to or which would adversely affect the public health, safety, and welfare of the adjacent residential neighborhoods,’ and Ala. Code 1975, Sec. 28-l-6(a)(l)b.7„ ‘Any other reason that poses a risk’; and,
“WHEREAS, [the city council] finds' that it is in the best public interest of the City and the citizens óf Birmingham that the business licenses previously issued to [Atlantis] ... be revoked and, furthermore, that Resolution No. 226-12 for a Special Retail Liquor License, approved on February 21, 2012, and Resolution No. 227-12, for a Division I Dance Permit, approved on February 21, 2012, for this business be rescinded.
“NOW THEREFORE BE IT THEREFORE RESOLVED by [the city council] of [the City], that the following business licenses issued to [Atlantis] ... under the following schedules of the Business License Code of the City of Birmingham, Ordinance No. 97-183, as amended, hereby are revoked and canceled:
“007A AGENTS, DEALERS OR OTHER BUSINESS 084A DIVISION I DANCING
“150M RETAIL BEER (ON-PREMISES AND OFF-PREMISES ’CONSUMPTION)
“1500 SPECIAL RETAIL — MORE THAN 30 DAYS
“150Y MONTHLY THREE PERCENT (3%) LIQUOR TAX
“213B REAL ESTATE LEASE OR RENTAL — SELF STORAGE
“BE IT FURTHER RESOLVED by [the city council] of [the City] that Resolution No. 226-12 for a Special Retail Liquor License, approved on February 21, 2012, and Resolution'No. 227-12, for a Division I Dance Permit, approved on February 21, 2012, for this business are hereby rescinded and canceled,”

On August 4, 2015, Atlantis filed a complaint in the trial court alleging that the City had failed to follow its ordinances in revoking Atlantis’s business licenses and rescinding approval of its liquor license and dance permit and/or that the City took such action in an arbitrary and capricious manner. The City answered the complaint and asserted various defenses. The trial court determined that Atlantis’s complaint would be treated as a petition for the writ of certiorari and proceeded accordingly.

The trial court received into evidence a video recording of the city council hearing, the police reports • submitted to the city council with information redacted, and the police reports without any information redacted. The parties stipulated that Atlantis had received a properly issued liquor' license before the city council hearing.

> Testimony at the hearing before the trial court established the following. Vu operated Atlantis when it was first formed in 2012. In July 2014, Cooper began managing Atlantis’s operations. In March 2015, Patterson visited .the nightclub and spoke to Cooper. According to Patterson’s testimony, he informed Cooper of complaints that had been made against Atlantis and the reports of violence associated with the operation of the business. On July 8, 2015, Cooper and an attorney representing Atlantis attended a meeting of the City’s public-safety committee. During that meeting, police reports listing the nightclub as the site of the incidents described in .the reports were discussed. Cooper informed Vu about, the meeting and the contents of the police reports, Several of the incidents described in the police reports presented at'the city council hearing took place in the parking areas of the businesses located near the nightclub. The patrons of the nightclub used those .areas for- parking during events held by Atlantis. 'According to the testimony of several police officers, patrons of the nightclub also used the parking lots of a nearby apartment complex, resulting in complaints from residents of the apartments. Events at the nightclub often drew an audience of 300 to 400 people. Atlantis hired private contractors as well as off-duty Birmingham police officers to serve as security personnel. At Cooper’s . request, on-duty officers were called upon to help with the traffic congestion created, by patrons leaving after large events.

Vu testified that he hired 6 to 15 security personnel and a minimum of 2 to 15 off-duty- police officers to provide security for events at the nightclub. Two police officers who worked off-duty at the nightclub during the six-month period before the city council hearing testified that normally four to five off-duty police officers provided security services during the nighttime operations at the nightclub, with one or two officers working, outside in the parking area and the remainder working inside the building.

Patterson testified that he had w'orked for the City’s police department since 1992, that he had worked for 18 years investigating establishments with liquor licenses for compliance with licensing and permitting, and that he had worked as an off-duty police officer at establishments with liquor, licenses. Patterson testified that the police reports listed the address of the nightclub as the site of incidents involving victims or perpetrators who were patrons of Atlantis. According to Patterson’s testimony, the security personnel and safety measures utilized by Atlantis were insufficient for the size and type of the crowd attending Atlantis’s events.

Patterson testified that one of his duties was to collect all police reports, including reports of false-alarm incidents, listing the address of a licensed establishment in order to impartially present information to the city council at a hearing. The police reports presented to the city pouncil in this case included reports of an incident involving a false alarm and of an incident involving the serving of an arrest warrant by an off-duty police officer. Atlantis presented testimony that the address fpr the site of the incidents on some of the police reports presented to the city council had been redacted. Patterson testified that, at the city council hearing, he had seated that the police reports listed the address of the nightclub. The trial court acknowledged that, in a video recording of .the city council hearing, city -council members did not appear to examine the police reports during the hearing. Hoyt testified that the city council was presented with the police reports, and Patterson testified that the reports were provided to the city council before the hearing began.

Atlantis | presented the testimony of Scott Morro, who worked for four years with the public-safety comrpittee of the City and who made recommendations to the city council regarding business licensing of junkyards. Morro testified that Atlantis’s operation did not cause the incidents described in the police reports, that there was criminal activity in the area where the nightclub was located that was not associated with Atlantis, and that the police department rather than Atlantis was responsible for addressing that criminal activity. Morro further testified that the listing of the address of the nightclub in the reports was misleading when the incidents occurred in the parking area of a neighboring business or apartment complex.

On February 3, 2016, the trial court entered a judgment affirming the City’s resolution. Atlantis filed a motion to alter and amend the judgment, arguing among other things that the City’s resolution was based on false, inaccurate, and misleading evidence; that the revocation of Atlantis’s business licenses and the rescission of approval of its dance permit and liquor license was arbitrary and capricious; and that the City had failed to provide Atlantis with proceedings comporting with procedural due process guaranteed by the Fourteenth Amendment to the United States Constitution as well as by Article 1, § 6, of the Alabama Constitution of 1901. On March 7, 2016, the trial court entered an order denying Atlantis’s postjudgment motion. On March 21, 2016, Atlantis filed a notice of appeal to this court. This court transferred the appeal to the Alabama Supreme Court for lack of subject-matter jurisdiction. Our supreme court then transferred the appeal to this court, pursuant to Ala. Code 1975, § 12-2-7(6).

Discussion

Atlantis challenges on appeal the trial court’s judgment affirming the City’s decision to revoke Atlantis’s business licenses and to rescind its approval of Atlantis’s liquor license and dance permit. Initially, we must determine the appropriate standard of review. Atlantis devotes a large portion of its arguments toward the City’s rescission of its approval of Atlantis’s liquor license. Atlantis describes the City’s resolution as a revocation of its liquor license. We observe that the Alabama Alcoholic Beverage Control Board (“the ABC Board”) is vested with the power to issue and renew licenses permitting the sale of alcohol. § 28-3A-3(a), Ala. Code 1975. As described later, Atlantis could not receive a liquor license from the ABC Board without obtaining the approval of the City, but the ABC Board is vested with “full and final authority as to the suspension or revocation of any license” it has issued. § 28-3A-24, Ala. Code 1975. Proceedings before the ABC Board are required in order to revoke or suspend an issued liquor license, § 28-3A-3(c), and the record lacks any. indication that the ABC Board has revoked Atlantis’s liquor license. The City’s resolution, therefore, did not in itself revoke the liquor license issued by the ABC Board to Atlantis.

The proceedings in the trial court addressed only the City’s actions and did not include the ABC Board. The City argues that the trial court properly reviewed the City’s resolution regarding the liquor license under the standard applicable to a petition for the writ of certiorari. In Birmingham Derby Club, Inc. v. City of Birmingham, 134 So.3d 419, 421 (Ala. Civ. App. 2013), this court stated:

“Alabama appellate courts have held that a petition for a writ of certiorari is the proper method for seeking judicial review of municipal decisions as' to which no prescribed method of review exists. See Sanders v. City of Dothan, 642 So.2d 437, 440 (Ala. 1994) (revocation of municipal business license).”

Atlantis argues that it was entitled to a de novo review in the trial court pursuant to '§ ‘28-l-6(a), Ala. Code 1975, which provides:

“(1) All other provisions of law, rules, or regulations to the contrary notwithstanding, the Alabama Alcoholic Beverage Control Board shall absolutely have no authority to issue any form of license in a Class 1 municipality, including, but not limited to, off-premises consumption licenses, restaurant licenses, or club licenses, for the retail sale of any form of intoxicating beverages, including, but not limited to, malt liquor, beer,' wine, liquor, or other alcoholic beverage regulated by the board, unless one of the following requirements is satisfied:
“a. The application has first been approved by the governing body of the Class 1 municipality in which the site of the license is situated.
“b. The denial of approval by the Class 1 governing-body has been set aside by order of the circuit court of the county in which the site is situated on the ground that the municipal approval was arbitrarily or capriciously denied without a showing of one of the following:
“1: The creation of a nuisance.
“2. Circumstances clearly detrimental to or which would adversely affect the public health, safety, and welfare of the adjacent residential neighborhoods.
“3. A violation of applicable zoning restrictions or regulations.
“4. An individual applying for the license has a prior conviction involving the use of alcohol or a controlled substance.
“5. The proximity of the business to a school or child care facility and the business hours of the operation will create a harmful environment for the children.
“6. The traffic congestion created by licensing the proposed location will endanger others.
“7. Any other reason that poses a risk.
“(2) Proceedings in the circuit courts to review an action of a Class 1 municipal governing body denying approval of an application shall be expedited de novo proceedings heard by a circuit judge without a jury who shall consider any testimony presented by the city governing body and any new evidence presented in explanation or contradiction of the testimony. Any proceeding to review the denial of approval of a license application shall be commenced within 14 days of the action by the municipal governing body and shall be set for hearing by the court within 30 days thereafter,”

Section 28-l-6(a) limits the ABC Board’s authority to issue a liquor license to an applicant whose premises are located within a Class 1 municipality without the approval of the municipality. Accordingly, under such circumstances, an applicant for a liquor license must obtain approval from the appropriate municipality before the ABC Board may issue the liquor license. Section 28-l-6(a) provides for judicial review by a circuit court when a Class 1 municipality denies approval for a'liquor-license application. Because the City is a Class 1 municipality, § 28-l-6(a) applies to its denials of pending liquor-license applications.

Atlantis was not, however, an applicant for a liquor license at the time of the city council hearing. Atlantis ¿ad been operating for over three years with a liquor license that had already been approved by the City and issued by the ABC Board. Atlantis contends that the right to judicial review pursuant to § 28-l-6(a) impliedly extends to a review of the City’s resolution rescinding its prior approval of Atlantis’s application for a liquor license because the resolution, Atlantis asserts, was, in effect, a “deferred denial” of its liquor license. Atlantis’s argument, thus, equates a municipality’s denial of approval of a liquor-license application with a municipality’s rescission of approval of a.liquor license already issued by the ABC Board. Although a municipality’s denial of approval prohibits the ABC Board from issuing a liquor license pursuant to § 28-l-6(a), a municipality’s rescission of approval does not in itself revoke a liquor license. In other words, the two types of, municipal actions do not have an equivalent legal effect. Atlantis, therefore, fails to show.that the judicial review by a circuit court provided in § 28-l-6(a) extends to the City’s resolution-in this case.

Therefore, we agree with the City’s assertion that the trial court properly reviewed the City’s resolution regarding the liquor license pursuant, to the standard applicable to a. petition for the writ of certiorari because, in the absence of a right provided by statute, the only method of judicial review available to Atlantis was by a petition for the common-law writ of certiorari. See Phase II, LLC v. City of Huntsville, 952 So.2d 1115, 1119 n.3 (Ala. 2006) (“Where there is no statutory right of direct appeal from a .local government’s .decision to deny an application for a liquor license, the only proper method of judicial review is by the common-law writ of cer-tiorari.”); Sanders v. City of Dothan, 642 So.2d 437, 440 (Ala. 1994)(quoting Southall v. Stricos Corp., 275 Ala. 156, 159, 153 So.2d 234, 237 (1963))(“ ‘[C]ommon-law certiorari is the appropriate method to have the courts determine the question as to whether a liquor license was revoked without cause where there,is no prescribed method.’ ”).

The parties agree that the trial court properly treated the portion of Atlantis’s complaint regarding the revocation of its business licenses and the rescission of approval of its dance permit as a petition for the writ of certiorari. Because we have not been provided with authority prescribing any other method of review of the City’s resolution regarding Atlantis’s business licenses and dance .permit, we agree with the parties that the trial court also properly reviewed that, portion of the City’s resolution pursuant to the standard applicable to a petition for the writ of certiorari; See Birmingham Derby Club, 134 So.3d at 421 (“[This court is] not aware of[ ] any authority that would permit a circuit court to hear an appeal from a municipality’s denial of dance-permit applications”).

Therefore, the trial court properly applied the standard applicable to a petition for the writ- of certiorari to the City’s resolution regarding Atlantis’s liquor-license, business licenses, and dance permit. The following standard applied to the trial court’s review of the City’s resolution:

“ ‘[T]he standard-of review for certio-rari limits .the scope of review to questions of law and does not extend to review of the weight and preponderance of the evidence.’ Parker v. Reaves, 531 So.2d 853 (Ala. 1988). Thus, ‘if there is any legal evidence to support the decision of the lower tribunal, such is conclusive on the reviewing court.’ Lovelady v. Lovelady, 281 Ala. 642, 206 So.2d 886 (1968). In other words, the only question for the, reviewing court is ‘whether the evidence will justify the finding [of the lower tribunal] as a legitimate inference from the facts proved regardless of whether such inference would, or would not have been drawn by the appellate tribunal.’ Alabama Electric Cooperative v. Alabama Power Co., 278 Ala. 123, 126, 176 So.2d 483, 485 (1965).”

Sanders, 642 So.2d at 440.

“A municipality has the ‘broad’ discretion to approve or disapprove the issuance of liquor licenses with respect to locations within the municipality. See § 28-3A-11, Ala. Code 1975; Ott v. Everett, 420 So.2d 258, 260 (Ala. 1982). However, the decision of the municipality in denying an application for a liquor license is subject to judicial review and is reversible if it is shown that the municipality acted arbitrarily in ■ denying the application for a liquor license. See Black v. Pike County Comm’n, 375 So.2d 255 (Ala. 1979); Inn of Oxford, Inc. v. City of Oxford, 366 So.2d 690 (Ala. 1978); see also Hamilton v. Town of Vincent, 468 So.2d 145, 147 (Ala. 1985) (affirming trial court’s judgment, after finding that the liquor-license applicant had failed to carry burden of showing arbitrary and capricious action by licensing authority).”

Phillips v. City of Citronelle, 961 So.2d 827, 829 (Ala. Civ. App. 2007).

“ ‘ “A determination is not ‘arbitrary’ or ‘unreasonable’ where there is a reasonable justification- for its decision or where its determination is founded upon adequate principles or fixed standards. State Department of Pensions and Security v. Whitney, 359 So.2d 810 (Ala. Civ. App. 1978).
“ ‘ “If reasonable minds may well be divided as to the wisdom of [the] administrative board’s actions, or there appears some reasonable basis for the classification made by the board, such action is conclusive and the court will not substitute its judgment for that of the administrative body.” ’ ”

Phase II, 952 So.2d at 1119 (quoting City of Huntsville v. Smartt, 409 So.2d 1353, 1357-58 (Ala. 1982), quoting in turn Hughes v. Jefferson Cty. Bd. of Educ., 370 So.2d 1034, 1037 (Ala. Civ. App. 1979)).

“ ‘ “ ‘This court’s scope' of appellate review [of a judgment entered on a petition for the writ of certiorari] is the same- as that of the circuit court.””” Franks v. Jordan, 55 So.3d 1218, 1221 (Ala. Civ. App. 2010) (quoting Holland v. Pearson, 20 So.3d 120, 122 (Ala. Civ. App. 2008), quoting in turn South Alabama Skills Training Consortium v. Ford, 997 So.2d 309, 324 (Ala. Civ. App. 2008), quot ing in turn Colbert Cty. Bd. of Educ. v. Johnson, 652 So.2d 274, 276 (Ala. Civ. App. 1994)). The trial court’s judgment is therefore due to be affirmed if the record provides a reasonable basis on which the City could have relied in making its decision. See Sanders, 642 So.2d at 442 (affirming municipality’s decision when “[t]he evidence produced during the commission meetings [provided] a basis on which the commission — without acting arbitrarily or capriciously — could have decided to revoke the lounge’s license”).

Both parties presented testimony to the trial court, and neither party sought to exclude any testimony from being considered as evidence. .In our consideration of the trial court’s findings and conclusions based on disputed testimony, we are guided by the ore tenus standard of review:

“ “When the testimony is presented ore tenus, the trial court’s findings and conclusions thereon are given the same weight as the verdict of a jury, and will not be disturbed unless palpably wrong.’ Harrelson v. Glisson, 424 So.2d 591, 592 (Ala. 1982) (affirming municipal action upon lounge liquor-license application); see also Black[ v. Pike Cty. Comm’n], 375 So.2d [255,] 258 [(Ala. 1979)] (affirming trial court’s judgment entered after ore tenus liquor-license review proceeding where ‘its findings [were] supported by credible evidence, and [were] not clearly erroneous or manifestly unjust’). Under that standard, the circuit court’s judgment in this case, which contains no express findings, will be affirmed ‘ “if, under any reasonable aspect of the testimony, there is credible evidence to support the judgment.” ’ Transamerica Commercial Fin. Corp. v. AmSouth Bank, N.A., 608 So.2d 375, 378 (Ala. 1992) (quoting Clark v. Albertville Nursing Home, Inc., 545 So.2d 9, 13 (Ala. 1989)).”

Phillips, 961 So.2d at 830-31.

Atlantis contends that the City acted arbitrarily and capriciously in revoking its business licenses and in rescinding approval of its liquor license and dance permit. The party arguing that it was subject to arbitrary- and capricious action on the part of a municipality has the burden of “showing] that there is no reasonable justification supporting the municipality’s decision.” Phase II, 952 So.2d at 1119. Atlantis argues- that its business activity was not related to the incidents described in the police reports of assault, shootings, and damage to neighboring property.

In its resolution, the city council found that the operation of the nightclub created a nuisance or circumstances that were detrimental to the public health, safety, and welfare of the adjacent residential neighborhood. Atlantis does not dispute that the City could have relied upon those factors, if supported by credible evidence, to revoke its business licenses and to rescind approval for the liquor license and dance permit. Evidence in the record supported the following findings: either- the victims or perpetrators described in the police reports were patrons of Atlantis; the incidents in the police reports occurred either on Atlantis’s premises or in areas its patrons used for parking; Atlantis’s management was responsible for hiring security personnel; the security employed by Atlantis was insufficient to ensure safety in the areas where the patrons parked; and violence toward Atlantis’s patrons resulted in danger to residents and property damage in nearby apartments. In addition, the trial court received testimony that on-duty police officers were routinely called to assist with congested traffic conditions after events at the nightclub. Although Atlantis presented evidence to the trial court that conflicted with those factual findings, this court “ ‘will not disturb the decision of the trial court, sitting without a jury, on conflicting evidence that is partly ore tenus, unless it is contrary to the great weight of the evidence.”’ Ruttenberg v. Friedman, 97 So.3d 114, 121 (Ala. 2012)(quoting American States Ins. Co. v. Copeland, 534 So.2d 275, 278 (Ala. 1988)). Because substantial evidence supports the conclusion that Atlantis’s operation created a nuisance and circumstances that were detrimental to the public health, safety, and welfare of the adjacent- residential neighborhood, the judgment cannot be reversed based on the conflicting evidence Atlantis presented.

Atlantis asserts that the police reports relied upon by the city council were altered and/or false. The record indicates that some information on some of the police reports presented at'the city council hearing had been redacted. The trial court received testimony that the redactions' were made to protect personal information of individuals named in the reports. Testimony also showed that many of the incidents occurred in areas used by patrons of Atlantis' for parking and that the address of the nightclub was listed as the site for the incidents because the incidents involved patrons of Atlantis. Atlantis further asserts that, during the city council hearing, the police reports were not disseminated to the city council members and, thus, that the City’s resolution was based only on oral descriptions of the reports and not on the reports themselves. The trial court, however, received testimony that the police reports had been provided to city council members. Moreover, we are not presented with a legal reason why the city council could not have considered Patterson’s oral descriptions of the information in the police reports. “ ‘ “Questions of fact or weight or sufficiency of the evidence will not be reviewed on certiora-ri.”’” Taylor v. Huntsville City Bd. of Educ., 143 So.3d 219, 226 (Ala. Civ. App. 2013)(quoting Ford, 997 So.2d at 324, quoting in turn Personnel Bd. of Jefferson Cty. v. Bailey, 475 So.2d 863, 868 (Ala. Civ. App. 1985)); see also Ruttenberg, supra. We conclude that the trial court was not required to reverse the City’s decision on this basis.

Atlantis also argues that the city council’s consideration of the police reports was limited to ’ reports of incidents that occurred within the six months immediately preceding the city council hearing, pursuant to § 24.4 of Ordinance-No. 97-183 of the City (“the ordinance”), which states, in relevant part, regarding hearings on revoking or refusing to renew business licenses:

“(e) At the hearing, [the city cohncil] shall hear all evidence offered by any party and all evidence that may be presented bearing upon the question of revocation or the refusal of renewal, as the case may be. The licensee or applicant shall have the right to introduce witnesses and evidence in his behalf. [The-city council] shall hear all witnesses and evidence in support of the revocation or refusal of such license.
“(d) If, after the hearing, a majority of [the city council] shall be of the opinion that such licensee is operating or has within six months operated such business in an illegal manner or in such a manner as to be detrimental to public health, safety or welfare or as to constitute a nuisance, or that the licensee or his agent has filed or caused to be filed any application, affidavit, statement or other misleading statement or omission of a material fact in connection with the issuance or renewal of said license, [the city council] shall, by resolution, forthwith revoke the license of such licensee or refuse the renewal of said license. No refund of any license fee shall be made if the license is revoked.”

(Emphasis added.) '

Even if the ordinance applied to the city council hearing and the City’s resolution, we conclude that Atlantis’s argument fails to show any noncompliance with the ordinance by the City. The ordinance allows the city council to consider all evidence regarding the revocation or refusal of a license presented at the hearing. The ordinance requires that, after the hearing, if the city council decides to revoke or refuse a license based on the illegal or detrimental operation of the business, such operation must have occurred within six months before the hearing. .The evidence shows that many of the Incidents in the police reports occurred within six months of the city council hearing. Accordingly, the City could have found from that evidence th.at Atlantis operated its business in a manner detrimental to public health, safety, or welfare within the six-month period preceding the hearing.

Atlantis next contends that the city council conducted the city council hearing in a manner inconsistent with due process. “[Procedural due process, protected by the Constitutions of the United States and this State, requires notice and an opportunity to be heard when one’s life, liberty, or property interests-are about to be affected' by governmental action.” Brown’s Ferry Waste Disposal Ctr., Inc. v. Trent, 611 So.2d 226, 228 (Ala. 1992). The City does not argue- that Atlantis did not have a protected property interest at issue in these proceedings; therefore, we will proceed to address the arguments as presented.

• Atlantis argues that it was denied-a reasonable opportunity to controvert the evidence presented against its position. At one point in the city Council hearing, Vu asked the city council for the “correct[,] accurate addresses” of the incidents described in the police reports. The trial court, however, received testimony that, before the city council hearing, Atlantis’s manager and attorney attended a meeting of the City’s public-safety committee regarding the concerns with Atlantis where the police reports were discussed and that Vu was informed of what occurred at the meeting and of the police reports. We note that both Vu and Cooper stated to the city council that the incidents, including the shootings described in the police reports, did not take place on Atlantis’s premises. The record, therefore, indicates that Atlantis was not denied the opportunity to controvert the descriptions in the police reports showing that the incidents stemmed from Atlantis.

In further support of its argument that the process used by the city council was flawed, Atlantis refers to Vu’s testimony before the trial court that council member Lashunda Seales would not allow Cooper to respond to a question she asked and that she “just cut us off.” At the city council hearing, Vu stated that up.to 15 off-duty police officers were employed at events at the nightclub when larger crowds were expected. The following is the exchange, in relevant part, between Scales and Vu:,

.“MS. SCALES: ... So I want to know what kind of events are you having that requires 15 off-duty police officers. ⅛ it for crowd control or safety?
“MR. VU: It’s basically for crowd control, because sometimes in the (inaudible) when we are booking, artists, that day requires such — you know, that many police officers or security just for safety. And, also, if we feel like—
“MS. SCALES: Here is what I am saying, because I don’t want to cut you off. -
“MR. VU: Right..
“MS. SCALES: I don’t mean to. I don’t want to come across as being rude, because I don’t have long — I don’t have much more time to talk.
“MR. VU: Sure.
“MS. SCALES: But what I am asking, sir, are these rap acts that you are bringing or contests like Slap that B, blah, blah, blah, those kind of things, those highly sexual type of events that is going to draw a certain crowd that without proper crowd control is going to be a problem? Are those the kind of events that you have at Atlantis?
“MR. VU: No. Basically, just when we bring artists, rap artists.
“MS. SCALES: Are they rap artists?
“MR. VU: Yes..
“MS. SCALES: Okay. Are they gangster rap, regular rap? What kind of rap are we doing?
“MR. 'VU: To be' honest with you, I don’t — I don’t — I don’t know-anything about—
“MS. SCALES: You just make money off of it, I get it.
“Okay. Mr. Chair, I’m sorry. Thank you, sir.”

We determine that the trial court was not compelled by the exchange between Vu and Scales to find, as asserted by Atlantis, that “the City did not have, or care to have, the correct facts before them to make a fair decision whether to revoke Atlantis’s licenses.” See Taylor, supra; Ruttenberg, supra.

Furthermore, assuming that the city council had not allowed Atlantis to present information, Atlantis fails to identify what material evidence it would have provided. We conclude that Atlantis fails to show that the conduct of the city council hearing deprived Atlantis , of its right to due process.

Atlantis additionally -argues in its principal brief that “[Hoyt], who lives near the Atlantis location, had personal motives in spearheading, -along with [Patterson], the City’s action tó revoke Atlantis’s licenses.” Atlantis, however, -fails to provide facts from the record, other than the City’s adverse resolution, to show that Hoyt or Patterson had a personal motive or- bias behind their actions in this case, “‘[Aid-verse rulings during the course of the proceedings are not by themselves sufficient to establish bias and prejudice.’ ” Baldwin v. Baldwin, 160 So.3d 34, 38 (Ala. Civ. App. 2014) (quoting Hartman v. Board of Trs. of the Univ. of Alabama, 436 So.2d 837, 841 (Ala. 1983)). Atlantis therefore fails to demonstrate that the impartiality of the city council was compromised by Hoyt’s and Patterson’s participation in the proceedings. ■

Atlantis further asserts that other city council members’ treatment of the witnesses in support of Atlantis were displays of hostility that showed bias and prejudgment on the part of the rest of the city council. Atlantis refers Only to exchanges between the witnesses and one council member, Scales. In addition to the exchanges involving Vu and Cooper discussed in regard to Atlantis’s due-process arguments, Atlantis also refers to. the following exchange between Scales and Dang:

“MS. SCALES: ,.. Let me ask you something. Who is the — can you identify the young lady behind you, sir?
“MR. VU: This is—
“MRS. VU: . Yes. Good morning. Councilor. I’m Stephanie. I’m his wife.
“And we run the store for — or in the hood almost for ten years. And, you know, I love the hood. And I — you know, even though I have — yeah, neighborhood. And I — I have twins. I stay at home. Every day I come to the shopping center and, you know, make sure they keep everything clean.
“And, you know, I — you know, you can ask all of the neighborhood there, you know, how they love us and we love them and I have no trouble with that.
“MS. SCALES: Yes. Rut I haven’t asked you anything yet. I know you’ve got your script. I just needed him to identify who you are.
“MRS. VU: Yes, ma’am.
“MS. SCALES: I also heard the word 'the hood’ too.
“MRS. VU: Yes.
“MS. SCALES: So I got that too. Okay. I can — when you have got limited vision, you can hear extremely well. So I did hear that. Okay.
“Don’t hold that against her, sir. All right.
“Let me ask you something. Can you come to the microphone, sir? Ma’am, I won’t put you on the spot.
“MR. VU: Yes, ma’am.”

Our review of the record reveals no evidence compelling the trial court to find that the city council’s decision was based on hostility toward Vu, Dang, or Cooper. See Taylor, supra; Ruttenberg, supra.

Atlantis also argues that the City did not present evidence to the trial court that the neighborhood around the nightclub had improved after the City passed its resolution revoking Atlantis’s business licenses and rescinding approval of Atlantis’s liquor license and dance permit. The issue is whether the City had sufficient evidence at the time of that decision, not the effect of the decision. Moreover, Atlantis, not the City, had the burden to show that City’s decision was arbitrary and capricious. See Phase II, 952 So.2d at 1119. Atlantis also asserts phat thp city council failed to carefully inquire intq the basis for its decision. The city council conducted a hearing in which Atlantis was allowed to present evidence. Evidence in the record supports the credibility of the police reports describing incidents of violence and a connection between the operation of Atlantis and those incidents. The inquiry for this court is whether legal evidence supported the City’s decision. It is beyond the scope of our review to reweigh the evidence, to substitute our judgment for that of the City, or to assess the purported consequences of the City’s decision. See Taylor, supra; Ruttenberg, supra.

Atlantis also argues that the motion made at the city council hearing to revoke or rescind all of Atlantis’s licenses was improper based on a failure to follow Robert’s Rules of Order. Atlantis does not direct us to legal authority establishing that the city council was bound by such procedures in its consideration of Atlantis’s business and liquor licenses.

Because legal evidence reasonably justifies the City’s decision, we affirm the trial court’s judgment determining that the City did not act arbitrarily and capriciously in revoking Atlantis’s business licenses and rescinding approval of Atlantis’s applications for a dance permit and a liquor license. Atlantis’s request for attorney fees on appeal is denied.

AFFIRMED.

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

      . Regarding a special retail liquor license, § 28-3A-19, Ala. Code 1975, provides:
      "Upon applicant's compliance with the provisions of this chapter and the regulations made thereunder, the [Alabama Alcoholic Beverage Control Board] shall issue a special retail license in wet counties for a state park, racing commission, fair authority, airport authority, or civic center authority, or the franchises or concessionaire of such park, commission or authority, and may, in its discretion, issue a special retail license to any other valid responsible organization of good reputation for such period of time not to exceed one year and upon such terms and conditions as the board shall prescribe, which will authorize the licensee to purchase, where the retail sale thereof is authorized by the board, liquor and wine from the board or as authorized by the board and table wine and beer from any wholesale licensee of the board and to sell at retail and dispense such alcoholic beverages as are authorized by the board at such locations authorized by the board upon such terms and conditions as prescribed by the board. Provided, however, no sale of alcoholic beverages shall be permitted on any Sunday after the hour of 2:00 A.M.”

      . “Birmingham is a Class 1 municipality, as defined in § 11-40-12, Ala. Code 1975, because its population was more than 300,000 inhabitants as certified by the 1970 federal decennial census.” Biggs v. City of Birmingham, 91 So.3d 708, 711 n.2 (Ala. Civ. App. 2012).


author: THOMAS, Judge.

text:
    Tandra GORDON v. Brian GORDON
    2150775
    Court of Civil Appeals of Alabama.
    January 20, 2017
    Certiorari Denied March 10, 2017
    Alabama Supreme Court 1160367

      Austin Burdick of Burdick Law Firm, Bessemer, for appellant.
    Amanda Mulkey of Smith <& Staggs, L.L.P., Tuscaloosa, for appellee.
   THOMAS, Judge.

Tandra Gordon (“the mother”) and Brian Gordon (“the father”) are the parents of a child (“the child”) born in October 2006, In 2007 the mother began attending medical school in Illinois; the child and the father remained in' Alabama. At some point in 2011, the mother graduated from medical school and returned to Alabama to begin a medical-residency program.

On March 10, 2012, the parties were divorced by a judgment entered by the Tuscaloosa Circuit Court. The circuit court adopted the parties’ mediated agreement and, among other ■ things, awarded the parties joint legal custody of the child, named the father as the sole physical custodian, and ordered the mother to pay child support. The father, an assistant professor at the University of Alabama, worked and resided in Tuscaloosa; the mother practiced medicine in the Birmingham area, resided in Birmingham, and leased an apartment in Tuscaloosa to facilitate her visitation with the child.

In September 2014, the father file.d a petition seeking, among other things, a modification of the child’s custody and a recalculation of the mother’s child-support obligation. The father’s action was assigned case number DR-10-761.01 (“the .01 action”). That same month, the mother filed an answer to the father’s petition and a counterclaim seeking a modification of the child’s custody and a termination of her obligation to pay child support. The mother’s action was assigned cáse number DR-10-751.02 (“the .02 action”). On March 13, 2015, the’ mother filed a motion seeking, among other things, consolidation of the .01 action and the .02 action. On March 19, 2015,’ the circuit court entered an order, which provides, in pertinent part:

“It is hereby ORDERED, ADJUDGED and DECREED that [the .01 action] and [the .02 action] shall be consolidated for trial purposes and that all future pleadings shall be filed under DR-10-751.01.”

A trial was held on November 4, 2015, and January 12, 2016. On .March 17, 2016, the circuit court entered a judgment, increasing the amount of the mother’s child-support obligation and denying her request for a modification of custody upon its express determination that the mother had failed to provide evidence to meet the custody-modification requirements set out in Ex parte McLendon, 455 So.2d 863 (Ala. 1984)(“the McLendon standard”); however, the circuit court increased the mother’s “parenting time.”

The record reflects that the mother filed her postjudgment motion on Sunday, April 17, 2016. The circuit court held a post-judgment hearing, and, on May 20, 2016, it entered an order in which it amended certain custody-exchange and visitation provisions.. On June 8, 2016, the mother filed a timely notice of appeal, seeking this court’s review of two issues.

The Propriety of the Child-Support Modification

The mother contends that the circuit court erred by increasing her child-support obligation “solely on income and not the needs of the child.”

“ ‘Our standard of review in a case involving a modification of a child-support order is well settled. Matters related to child support, including subsequent modifications of a child-support order, rest soundly within the trial court’s discretion and will not be disturbed on appeal, absent a showing that the'ruling is unsupported by the evidence and thus is plainly and palpably wrong. Berryhill v. Reeves, 705 So.2d 505 (Ala. Civ. App. 1997); Williams v. Braddy, 689 So.2d 154 (Ala. Civ. App. 1996). A child-support award may be modified upon a showing of a material change of circumstances that is substantial and continuing. Id.; State ex rel. Shellhouse v. Bentley, 666 So.2d 517 (Ala. Civ. App. 1995). “Factors indicating a change of circumstances include a material change in the needs, conditions, and circumstances of the child.” Id. at 518. The primary consideration in awarding child support is the welfare and best interests of the child. Balfour v. Balfour, 660 So.2d 1015 (Ala. Civ. App. 1995).
“ ‘This court has further held that a trial court is required to determine if a deduction is to be allowed in a monthly child-support obligation based on the fact that health-insurance premiums are being paid on behalf of the child in accordance with Rule 32(B)(7), Ala. R. Jud. Admin, See Jordan v. Jordan, 688 So.2d 839 (Ala. Civ. App. 1997), Kennamore v. State ex rel. Jinnette, 686 So.2d 295 (Ala. Civ. App. 1996).’
“Jackson v. Jackson, 777 So.2d 155, 158 (Ala. Civ. App. 2000).”

Volovecky v. Hoffman, 903 So.2d 844, 847-48 (Ala. Civ. App. 2004).

“Rule 32(A) and (C), Ala. R. Jud. Admin., provide a method for determining the amount of child support according to the parents’ combined incomes and a schedule of basic child-support, obligations. There is a rebuttable presumption that the amount of child support calculated pursuant to, the , Rule 32 guidelines is the ‘correct amount of child support to be awarded.’ Rule 32(A), Ala. R. Jud. Admin.”

Batchelor v. Batchelor, 188 So.3d 704, 707 (Ala. Civ. App. 2015).

The mother had been obligated to pay $678 per month in child support. The parents each submitted a CS-41 Child-Support-Obligation Income Statement/Affidavit form. In its Form CS-42, the circuit court correctly indicates that the father had reported a monthly gross income of $6,131 and that the mothér had reported a monthly gross income of $10,769.24. After certain deductions, the mother’s share of the child-support obligation, pursuant to the child-support guidelines, is $929, which is the amount the circuit court ordered her to pay.

“The purpose of child support is to provide support for dependent children. Self v. Self, 685 So.2d 732 (Ala. Civ. App. 1996). ‘Child support is always subject to modification based upon changed circumstances and a parent’s ability to pay.’ Gordy v. Glance, 636 So.2d 459, 461 (Ala. Civ. App. 1994).”

Lo Porto v. Lo Porto, 717 So.2d 418, 421 (Ala. Civ. App. 1998).

The mother does not present any argument to this court regarding changed circumstances or an inability to pay. Instead, in her first sub-argument, the mother refers to § 30-3-155, Ala. Code 1975, as “the child support statute,” and she argues that § 30-3-155 is unconstitutional. Section 30-3-155 provides, in its entirety: “In making a determination of child support, the court shall apply Rule 32 of the Alabama Rules of Judicial Administration.” Rule 32(A) provides, in pertinent part:

“Guidelines for child support are hereby established for use in any action to establish or modify child support, whether temporary or permanent. There shall be a rebuttable presumption, in any judicial or administrative proceeding for the establishment or modification of child support, that the amount of the award that would result from the application of these guidelines is the correct amount of child support to be awarded. A written finding on the record indicating that the application of the guidelines would be unjust or inappropriate shall be sufficient to rebut the presumption.”

According to the mother, the Rule 32 child-support guidelines usurp the authority of fit parents to determine the extent of support that assures that “necessaries are provided for a child.” The alleged usurpation, according to the mother, violates the separation-of-powers doctrine and her right to equal protection and due process. The mother fails to develop a legal argument or to provide a relevant citation for her assertion that the Rule 32 child-support guidelines usurp the authority of fit parents. The mother cites Young v. Weaver, 883 So.2d 234, 235 (Ala. Civ. App. 2003), for her assertion that this court has held .that “children do not have a right to more, than the necessities.” However, Young, which examines whether a contract made with a minor is voidable, is inappo-site. It is well settled that “[t]his court will address only those issues properly presented and for which supporting authority has been cited.” Asam v. Devereaux, 686 So.2d 1222, 1224 (Ala. Civ. App. 1996). “Rule 28(a)(10)[, Ala. R. App. P.,] requires that arguments -in briefs' contain discussions of facts and relevant legal authorities that support that party’s position. If they do not, the arguments are waived.” White Sands Grp., L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1058 (Ala. 2008). Accordingly, we need not address this sub-argument further.

In her second sub-argument, the mother contends that the circuit court erred by increasing her child-support obligation because, she says, “it is undisputed that the child’s needs were being met.” The mother’s argument is framed largely within the context of awards of joint physical custody; however, in this case, the circuit court awarded the father sole physical custody. To the degree that the mother’s citation to authority is relevant, we note that Rule 32 contemplates that, a deviation from the child-support guidelines may be appropriate in some cases, and it provides discretion for trial courts to deviate from the guidelines for seven enumerated reasons. Furthermore, Rule 32(A)(1) allows a deviation, when justified in writing, “even if no reason enumerated in this section exists, if evidence of other reasons justifying deviation is presented.” Clearly, the circuit court could have entered any child-support order it deemed appropriate based'upon the evidence presented. The circuit court’s award of child support was properly based upon the evidence presented, including the parents’ reported income. The evidence presented was insufficient to rebut the Rule 32 presumption or to amount to proof of a denial óf the' mother’s fight to due process or equal protection. Thus, the circuit court did riot err by increasing the mother’s child-support obligation.

The Propriety of the Custody Modification

The mother complains that the McLendon standard is based on a misconception, violates public policy, and is a barriér to custody awards that are in the best interest of the child.

“When evidence in a child custody case has been presented,ore tenus to the trial, court, that court’s findings of fact based on that evidence are presumed -to, be correct. The trial court is in the beet position to make a custody determination — it hears the evidence and observes the .witnesses. Appellate courts do not sit in judgment of disputed evidence that was presented ore tenus before the trial court in a custody hearing. See Ex parte Perkins, 646 So.2d 46, 47 (Ala. 1994), wherein this- Court, quoting Phillips v. Phillips, 622 So.2d 410, 412 (Ala. Civ. App. 1993), set out the well-established rule: -
“ ‘ “Our standard of review is very limited in cases where the evidence is presented ore tenus. A custody determination of the trial court entered upon oral testimony is accorded a presumption of correctness on appeal, Payne v. Payne, 550 So.2d 440 (Ala. Civ. App. 1989), and Vail v. Vail, 532 So.2d 639 (Ala. Civ. App. 1988), and we will not reverse unless the evidence so fails to support the determination that it is plainly and palpably wrong, or unless an abuse of the trial court’s discretion is shown. To substitute our judgment for that of the trial court would be to reweigh the evidence. This Alabama law does not allow. Gamble v. Gamble, 562 So.2d 1343 (Ala. Civ. App. 1990); Flowers v. Flowers, 479 So.2d 1257 (Ala. Civ. App. 1985).’”.
“It is also well established that in the absence of specific findings of fact, appellate courts will assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous.”

Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala. 1996).

The law is well settled that “[a] parent seeking to modify a custody judgment awarding [sole] physical custody to the other parent must meet the standard for modification of custody set forth in Ex parte McLendon[, 455 So.2d 863 (Ala. 1984) ].” Adams v. Adams, 21 So.3d 1247, 1252 (Ala. Civ. App. 2009). Ex parte McLendon requires that

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

McCormick v. Ethridge, 15 So.3d 524, 527 (Ala. Civ. App. 2008). It is not sufficient for a noncustodial parent seeking a modification of custody to show that he or she is a fit custodian. Id. The noncustodial parent must prove all three McLendon factors- in order to warrant a modification of custody. Id.

The judgment reads, in pertinent part:

“Custody. In order to modify the preexisting custody judgment entered' on March 10, 2012, the Mother must demonstrate that there has been a material change in circumstances, that the proposed change in custody would materially promote the child’s best interests, and that the benefits of the change will more than offset the inherently disruptive effect caused by uprooting the child. Ex parte McLendon, 455 So.2d 863 (Ala. 1984). Based on the matters presented, the Court does not find that all of those elements have been met. Thus, the Mother’s petition to modify custody is hereby denied and custody of the child will remain as previously ordered. However, the Court does find that the Mother’s parenting time with the minor child is due to be modified.”

The father testified that, when the child was 10 months old, the mother moved to Illinois to pursue a medical degree, and he became the child’s primary caregiver. By the time the child was five years old,- the mother had graduated from medical school and had returned to Alabama, and • the parents had divorced'one another. As already mentioned, the father worked and resided in Tuscaloosa; the mother worked in the Birmingham area, resided in Birmingham, and leased an apartment in Tuscaloosa. The father said that the mother’s residency schedule had been inflexible; thus, for a period, he and -the mother had cooperated so that the mother could have the child whenever she could “work it out.” The father married Erica Gordon (“the stepmother”); there is one child (“the half sister”) of that marriage. According to the father, the child and the half sister are “very, close,” and the child is proud of being a big sister. He said that the child attends church and enjoys good health.

The father testified that the child had attended preschool at “CDRC” on the campus of the University of Alabama, then a pre-kindergarten program at North River Christian Academy, then kindergarten at “Northington,” then first grade at the Tuscaloosa Magnet School, then second grade at Saint Aloysius in Hoover (because the father had, at.that time, intended to relocate to .Jefferson County), and then third grade at North River .Christian Academy. He said that the child, was a well-adjusted third-grade student. The mother testified that she had not contributed to the child’s private-school tuition; however, it was undisputed that the father had not consulted her before enrolling the child in a private school.

The father testified that he and .the mother had exercised “50/50” custody of the child during certain summers. He said that, as a result, the child had suffered “very close to some mental and emotional stuff’ because, he testified, the mother had encouraged the child to lie, the child had missed the half sister, the child had had difficulty readjusting to the family’s schedule and rules, and the child had been “distant” with the father and the stepmother. The mother testified that the stepmother wanted to replace her as the child’s mother, that the child called the stepmother “mom,” that the mother had taught the child to tell the truth, and that the child had enjoyed spending time with her.

The mother testified that “some big changes have happened” since the divorce judgment was entered. She said that she had completed her medical residency, that her current employment schedule was flexible, that the father had interfered with her ability'to access the child’s school records, that the child had “grown and changed,” and that the mother could offer stability rajther than yearly changes to the school the child would attend. When asked for any other circumstances that had' arisen since the time the divorce judgment was entered, the mother said: “I would have to think on that and get back with you.”

The circuit court viewed the video deposition of the mother’s expert witness, Linda Nielsen, Ph.D., a professor of adolescent and educational psychology at Wake Forest University. Dr. Nielsen has published 5 books and 13 articles in scholarly journals oh thé topic of children of divorce, and she has provided continuing-legal-education courses on the same topic. She testified that, for 20 years, she had reviewed and compiled research comparing the outcomes of children who had lived in various types of custody arrangements, including joint-custody arrangements, which she referred to as “shared parenting” and defined as living with each parent “thirty-five percent to fifty percent of the time year round.” Dr. Nielsen explained that a large research study had conclusively shown that children in shared-parenting arrangements, even when their parents had been in “high-conflict,” had had equal or better “outcomes” than children in other types of custody arrangements in five areas: (1) the quality of their postdivorce relationships with both parents, (2) behavior (i.e., aggression, drug use, alcohol use,, and hyperactivity), (3) mental or emotional health (he., anxiety and depression), (4) physical illness (i.e., stress-related illness), and (5) academic performance. According to Dr. Nielsen, 80% of divorced parents remarry or “re-partner” within three years of a divorce; thus, her opinions had taken into account the effect of “blended” families and stepparents. When asked if studies had proved that moving from a “single parent situation into a shared parent situation” was inherently disruptive to a child, Dr. Nielsen said:

“It’s a change, but it does not have a negative outcome, otherwise, you would not find the positive outcomes that you did in the forty studies. All of the forty studies, those children changed from a— living with one parent to living with both parents. All forty studies, the children made a change, they switched.”

Dr. Nielsen said that, even if a child is “fine” or “okay” - in a certain custody arrangement, shared parenting creates a better outcome even when parents do not share the same parenting style. Dr. Nielsen testified: “[I]t’s a universal rule that shared parenting is preferable so long as both of the parents are fit.”

Dr. Nielsen had never met the child; however, she said that the child could easily adapt to shared parenting because she was well adjusted and loved both parents. Moreover, Dr. Nielsen labeled the parents as cooperative or, in her words, not “a high-conflict couple.” The mother characterizes Dr. Nielsen’s testimony as “undisputed factual and scientific evidence,” which, she says, “demands an award of shared parenting.”

We do not agree. The circuit court received Dr. Nielsen’s testimony and the testimony of the parents. “When the evidence is presented to the trial court ore tenus, it is the trial court’s duty to determine the weight and credibility of the witnesses and their testimony.” Smith v. Smith, 196 So.3d 1191, 1202 (Ala. Civ. App. 2015) (citing Ex parte Hayes, 70 So.3d 1211, 1215 (Ala. 2011), and Wheeler v. Marvin’s, Inc., 593 So.2d 61, 63 (Ala. 1991)), The circuit court was required to apply the McLendon standard and could have concluded that a change of custody would have had a disruptive effect on the child or that no material change in circumstances had occurred, based upon the evidence presented. Appellate courts do not sit in judgment of disputed evidence that was presented ore tenus before the trial coui’t in a custody hearing. T.O.B. v. C.J.B., 986 So.2d 433, 440 (Ala. Civ. App. 2007)(citing Ex parte Perkins, 646 So.2d 46, 47 (Ala. 1994)).

In conclusion, the circuit court did not err by increasing the mother’s child-support obligation or by declining to modify the child’s custody. The judgment of the circuit court is affirmed.

AFFIRMED.

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

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

      . The judgment actually awarded the. father “primary physical custody” of the child.
      "[T]here is but one way to interpret a judgment that awards ‘joint custody’ with an award of ‘primary physical custody’ to one parent — such a judgment must be interpreted as awarding the parents joint legal custody and awarding one parent sole physical custody, the term used by [§ 30-3-151, Ala. Code 1975,] to denote a parent being favored with the right of custody over the other parent, who will receive visitation.”
      Smith v. Smith, 887 So.2d 257, 262 (Ala. Civ. App. 2003).

      . The 30th day after the judgment was entered was Saturday, April 16, 2016. Therefore, the mother had until Monday, April 18, 2016, to file a postjudgment motion. See Rule 59(b), Ala, R. Civ. P„ and Rule 6, ,Ala. R. Civ. P.

      . We reject the father’s assertion that the mother’s appeal is untimely. The notice of appeal, in this consolidated action, was properly filed with the appropriate case numbers.

      . Assuming without deciding that the mother properly raised a constitutional challenge, the record contains an acceptance and waiver pursuant to § 6-6-227, Ala. Code 1975, which is dated March 25, 2015, filed by the attorney general for the State of Alabama.

      . We note that the mother did not develop any argument on appeal regarding an alleged violation of the separation-of-powers doctrine.

      , Although .our legislature has indicated that joint-custody arrangements are favored, see § 30-3-150, Ala. Code 1975, and should be considered in every child-custody case, see §■ 30-3-152(a) Ala. Code 1975, the McLendon standard does not violate that policy by requiring, in child-custody-modification actions, evidence demonstrating that a parent is a fit custodian, that material changes which affect a child's welfare have occurred, and that the positive good brought about by the change in custody will more than offset the disruptive effect of uprooting a child. "[T]he McLendon standard is not unconstitutional^ and] the McLendon standard has not been superseded by statute.” Gallant v. Gallant, 184 So.3d 387, 405 (Ala. Civ. App. 2014).


author: PITTMAN, Judge.

text:
    Shawna Day Mayo YOKLEY v. Brandon Alan Douglas YOKLEY
    2150814
    Court of Civil Appeals of Alabama.
    March 3, 2017

      Joshua B. Boone and Lee F, Holland, Mobile, for appellant.
   PITTMAN, Judge.

Shayma Day Mayo. Yokley (“the wife”) appeals from a judgment of the Mobile Circuit Court divorcing her from Brandori Alan Douglas Yokley (“the husband”). On appeal, the wife argues that the trial court erred in awarding the husband the parties’ marital residence and in failing to make a final child-support award retroactive. We affirm the trial, court’s judgment to the extent it awarded the husband the marital residence, reverse the judgment to the extent it failed to award the wife retroactive child support, and remand the cause for further proceedings.

Facts and Procedural History

The parties were married' in May 2007. They had two children during the marriage (“the children”). In June 2015, the wife and the children moved out of the marital residence, and, two months later, the wife filed a complaint for a divorce. In October' 2015, the trial court awarded the wife pendente lite custody of the children pending resolution of the divorce proceedings. The trial court, however, did not award the wife pendente lite child support. In March 2016, the trial court held a trial.

According to the testimony given at trial, at the time the parties married, the husband was employed as a police officer for the City of Mobile. The wife testified that, in May 2008, the husband left his job as a police officer so that he could attend nursing school. While the husband was attending nursing school, the wife worked at a nonprofit counseling service, where she' earned approximately $20,000 per year. The wife’s testimony is not entirely clear, but it appears she claimed that, during at least some of the time the husband was in nursing school, the wife paid the parties’ living expenses, including the husband’s $350-per-month child-support obligation from a previous marriage. The husband, on the other hand, testified that he had worked part time while attending nursing school and that.the money he had earned had been used “to pay bills and to pay [for] school.”

In January 2011, before the husband completed nursing school, the parties had their first child, E.L.Y. E.L.Y, was placed in day care six weeks after his birth. In May 2011, the husband obtained his nursing degree and began working the. night shift as an emergency-room nurse at a hospital in Mobile.

In January 2013, the parties had their second child, E.T.Y. Like the parties’ first child, E.T.Y. was placed in day care at six weeks of age. In April 2013, the husband quit his job at the hospital in Mobile so that he could pursue a career as a traveling nurse. The wife agreed during the trial that the husband had done so because he believed he could earn more money as a traveling nurse.

Two months after he stopped working at the hospital in Mobile, the husband began working as a nurse in California. The wife testified that, during the two months the husband had been out of work, she had paid the parties’ living expenses, including the husband’s child-support obligation from his previous marriage. It is not entirely clear, but the wife also appears to have suggested during the trial that the husband’s child-support obligation had, by that time, increased to $652 per month and that she had also paid a child-support ar-rearage the husband had accrued in the amount of $3,000. The wife also testified that she had had to borrow $4,000 against her retirement savings in order to pay the parties’ expenses. The husband, however, testified that the wife had borrowed funds at least in part so that she could attend college courses over the Internet. In addition, the wife admitted on cross-examination that the husband’s mother had loaned the parties money so they could pay their expenses, including the husband’s' child-support obligation.

The husband worked in California for approximately 13 weeks. The wife testified that, during the time the husband was in California, she. had cared for the parties’ children, as well as the husband’s son from .his previous marriage, who was scheduled to visit with the husband while he was working in California. The wife admitted that the husband had sent her money from California each week while he was there. According to the husband, he sent the wife between $1,500 and $1,800 every week during that period,

The wife testified that, approximately two months after returning from California, the husband resumed working the night shift as an emergency-room nttrse at the hospital in Mobile and that,'during the two-month interim period, she had paid the parties’ living expenses. The husband, however, 'testified that he had been out of work for only two or three weeks after returning from California.

The wife testified that the husband’s new job at the hospital in Mobile allowed him to work only on an “as needed” basis, suggesting that the husband did not work full time. The husband’s pay stubs from that period indicate that he had worked an average of 31 hours per week. In February 2014, the husband began working a more consistent schedule at the hospital, which he maintained until May 2015, at which time he obtained employment as a day-shift nurse at a different hospital near Mobile. The husband was still working at that particular hospital at the time of the trial. ’

• The wife .testified that, during the marriage, she had been responsible- for taking the children to day care, picking them up .from day care, and caring for them while they were at home. The husband, however, testified that he had helped with the children when he could, pointing out that he had worked mostly as a night-shift emergency-room nurse, which had -required him to leave the marital residence around 5:00 p.m. and return around 7:00 a.m. each day.

After the wife and the children left the marital residence in June 2015, they moved in with the wife’s parents, where they were still living at the time of the trial. The wife testified that, since she and the children had moved out of the marital residence, she had been responsible for providing for all of the children’s financial needs, with the exception of approximately $60 the. husband had given her and some groceries the husband had purchased. The husband did not deny that he had not provided much support for the children aftpr they had moved out of the marital residence, other than to claim that he had spent “a few hundred dollars” and had provided the wife with a check for $60.

According to the wife’s testimony, the parties purchased the marital residence in February 2012, at a price of $134,000. She testified that, in connection with that purchase, the parties had made a down payment of $2,500, which had come from the wife’s bank account.

It appears that the husband made all the mortgage-loan payments with respect to the marital residence, which were in the amount of $1,021 per month. The husband also testified that he had always provided the parties and the children with health-insurance coverage. The wife testified that she had been responsible for paying the remainder of the parties’ living expenses. The husband agreed when asked during the trial if the wife had “normally paid the bills,” although he testified that some of the money he had sent home from California should have been used to pay bills. We note that there also was some testimony indicating that the wife’s father had “helped” with maintenance and improvements to the marital residence.

In August 2015, after the wife and the children had moved out of the marital residence, the parties agreed to take out a home-equity loan,-which was to be secured by a mortgage on the marital residence. The net proceeds from' that loan were approximately $21,150. The parties initially intended to use the funds for improvements to the marital residence and for cosmetic surgery for the wife, but, at the husband’s request, the money was placed in the trust account of the wife’s attorney. The husband testified that, when the parties took out the home-equity loan, the wife had led him to believe that she wanted to reconcile and that, in his opinion, the wife had misled him.

The wife testified that, in connection with the home-equity loan, the marital residence had been appraised at a value of $210,000, although she also testified that, in her opinion, the residence was worth approximately $180,000. The husband, on the other hand, testified that, in his opinion, the house was worth between $160,000 and $170,000. He claimed to have based that opinion on the sale prices of other homes in the neighborhood; According to the wife’s testimony, which the husband did not dispute, at the time of the trial, the marital residence was encumbered by debt in the amount of $157,000, including the debt resulting from the home-equity loan. Depending upon the valuation accepted by the trial court, that amount of debt would leave equity in the marital residence in an amount between $3,000 and $53,000.

At the time of the trial, the wife carried student-loan debt in the amount of $82,000 and credit-card debt in the amount of $4,600, which, she informed the trial court, she was willing to pay. At the time of the trial, the-wife was earning approximately $40,000 per year, and the' husband was earning approximately $44,292 per year.

The .wife testified that she had sought a divorce because the husband had not sufficiently contributed to the parties’ marriage and to raising the parties’ children. The-husband, however, testified that he had begun contributing to household matters after the parties had started marriage counseling and that he had cared for the children when he had had time to do so. The wife also claimed that the marriage had broken down because the parties did not share a loving relationship, and she suggested that the husband had withdrawn his affection from her. The husband, however, testified that the wife had refused to have a sexual relationship with him.

The husband testified that, -at some point in 2013, a man with whom the wife had a working relationship had sent the wife a text message at 1:00 a.m. The husband testified that the text message had stated that the man had “had a good time with [the wife] and [that] he wanted to do it again.” The husband testified that, when he had confronted the -wife about the message, the wife had claimed that she had only had breakfast with the man and that, in any event, it would not happen again. The wife, however, denied altogether that the text message had been sent. The husband also testified that, at a subsequent time, he had discovered several photographs of a different man, which had been stored on the wife’s cellular telephone,' but that the wife had denied that she had had an inappropriate relationship with that man. In response to questioning by the husband’s counsel, the wife denied having sexual relations with anyone other than the husband during the marriage. After thé trial, the trial court commented on the record that, although the husband had implied that the wife had been unfaithful, “he hadn’t proven she was unfaithful.”

After the ore tenus proceedings, the trial court entered' a judgment divorcing the parties. The trial court awarded the parties joint legal custody of the children, awarded the wife “primary physical custody” of the children, and awarded the husband visitation with the children. The trial court directed the husband to pay the wife $759.78 per month in child support and to provide the children with health-insurance coverage. Any uncovered medical expenses are to be split equally between the parties.

The trial court awarded the wife a 2006 Kia sport-utility vehicle, awarded the husband a 2004 Chevrolet truck, divided the parties’ personal property, directed the parties to equally split an outstanding daycare bill, directed the husband to pay an outstanding medical bill in the approximate amount of $1,600, and made each of the parties responsible for all other debts in their own names. The trial court directed the parties to-split equally the approximately $21,150 in proceeds from the home-equity loan.

The trial court awarded the husband the marital residence and directed him to refinance the debt encumbering the residence to make himself solely responsible for that debt. The trial court stated that, in the event the husband does not refinance the debt within one year, he is to sell the martial residence and to provide the wife with half of any net sale proceeds.

After the entry of the divorce judgment, the wife filed a motion requesting the trial court to alter or amend that judgment so as to make the child-support award retroactive. The wife also asked the trial court to award her either 50% of the alleged equity in the marital residence or to award her all of the proceeds of the home-equity loan.

Statements made by the trial court during the hearing on the wife’s postjudgment motion suggest that, the trial court had been of the opinion that there had remained almost no equity in the marital residence after the home-equity loan had been taken:

“[The trial court:] Well, if I remember correctly, and I’m going to go back and pull my bench notes and re-read them, but the $21,[150] ... was the equity in the house. When they refinanced it, they took the equity out of the house and that’s the $21,[150] that was sitting in the [trust] account [of the wife’s attorney]. So if you — I don’t think there is any equity in the house. I’ll go" back and look at my notes. .,.
“So the- [$21,150], if I. remember correctly,- ... that was the equity in the house. At this point in time, there is no equity in the house unless — other than what he has been paying on for the last year and a half and will continue to pay on for the next year.”

In response to the trial court’s statements, the wife’s counsel pointed to the appraisal that had .been performed in connection with the. home-equity loan, which suggested that there was, indeed, equity remaining in the marital residence after the home-equity loan had been taken. After the hearing, the trial court entered a judgment denying the wife’s postjudgment motion without explanation.

The wife appeals, arguing that the trial court erred in awarding the husband the marital residence and in failing to award the wife retroactive child support. The husband did not favor this court with an appellee’s brief.

Discussion
'Marital Residence
“In reviewing a judgment in a divorce case in which the trial court was presented conflicting evidence ore tenus, we are governed by the ore tenus rule. Under this rule, the trial court’s judgment will not be disturbed on appeal unless it is plainly and palpably wrong. Hartzell v. Hartzell, 623 So.2d 323 (Ala. Civ. App. 1993). Matters of property division rest soundly within the trial court’s discretion and its determination regarding those matters will not be disturbed on appeal unless its discretion was plainly and palpably abused. Goodwin v. Estate of Goodwin, 632 So.2d 500 (Ala. Civ. App. 1993). A division of marital property in a divorce case does hot have to be equal, only equitable, and a determination of what is equitable rests within the sound discretion of the trial court. Pride v. Pride, 631 So.2d 247 (Ala. Civ. App. 1993). When dividing marital property, a trial court should consider several factors, including the length of the marriage; the age and health of the parties; the future prospects of the parties; the source, type, and value of the property; the standard of living to which the parties have become accustomed during the marriage; and the fault of the parties contributing to the breakup of the marriage. Hartzell, supra.

Golden v. Golden, 681 So.2d 605, 608 (Ala. Civ. App. 1996).

According to the wife, the marital residence had equity in the amount of $53,000, all of which, she says, the trial court awarded.to the husband. As noted, however, the evidence of the value of the marital.residence was disputed during-the trial. Although the appraisal performed in connection with the home-equity loan supports the wife’s position on appeal regarding the amount of equity, the wife’s own opinion testimony suggested that the house had no more than $23,000 in equity. In addition, the husband’s opinion, which he asserted was based on sales of comparable homes in the parties’ neighborhood, would support a conclusion that the marital residence had as little- as $3,000 in equity. Although the wife points to McCrimon v. McCrimon, 207 So.3d 49 (Ala. Civ. App. 2016), in support of her claim that this court has “approved using the value of an appraisal in contrast to the values stated by the parties,” nothing in McCrimon indicates that the trial court in the present case was required to rely on the appraisal. See also Edwards v. Edwards, 26 So.3d 1264, 1261 (Ala. Civ. App. 2009), overruled on other grounds by Enzor v. Enzor, 98 So.3d 15 (Ala. Civ. App. 2011) (“Either party was permitted to testify regarding their opinion of the value of the marital property; an appraisal was not required to establish the value of the property.”). The trial court’s directives in the divorce judgment regarding disposition of the marital residence, as well as the trial court’s statements during the postjudgment hearing, suggest that it accepted the valuation that resulted in there being almost no equity in the marital residence. We cannot conclude that the wife has demonstrated that the trial court’s finding, and its disposition of the marital residence, was plainly and palpably wrong.

Retroactive Child Support

Although no pendente lite child-support order was entered in this case, the trial court could have made the final child-support award retroactive. See Brown v. Brown, 719 So.2d 228, 232 (Ala. Civ. App. 1998) (“Given this state’s policy and law requiring a parent to support a minor child, we hold that a trial.court may, in its discretion, award child support retroactive to the filing of the complaint for divorce where the trial court has failed to enter a pendente lite child support order for the period in which the parent had a duty to support the child but failed to provide that support.”).

In Pate v. Guy, 942 So.2d 380 (Ala. Civ. App. 2005), this court, relying on Brown, as well as the subsequent opinion in Vinson v. Vinson, 880 So.2d 469 (Ala. Civ. App. 2003), reversed a divorce judgment that had failed to make a child-support award retroactive:

“[A] trial court may award child support retroactive to the filing of the complaint for divorce when the trial court has failed to enter a pendente lite child support order during the pendency of the divorce proceedings during which the noncustodial parent had a duty to support the children but failed to provide that support. See Brown, 719 So.2d at 232. More recently, this court reversed a trial court’s failure to award retroactive child support based upon Brown and the well-established principle that parental support is a fundamental right of all minor children. See Vinson v. Vinson, 880 So.2d 469 (Ala. Civ. App. 2003).”

942 So.2d at 385. In Pate, it was undisputed that the noncustodial parent had provided very little support for his children during the divorce proceedings. Id. at 385. Likewise, in McCaskill v. McCaskill, 104 So.3d 186 (Ala. Civ. App. 2012), this court, noting that a noncustodial parent had failed to support his children during divorce proceedings, reversed the judgment and remanded the case for the entry of a revised judgment that included an appropriate award of retroactive child support.

In the present case, it is undisputed that the husband provided little support for the benefit of the children during the divorce proceedings. Accordingly, based on Brown, Vinson, Pate, and McCaskill, we reverse the divorce judgment to the extent the trial court declined to award retroactive child support, and we remand the cause for the entry of such an award, taking into consideration the parties’ incomes and pertinent financial provisions of the divorce judgment.

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

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

      . We note here that, in her postjudgment motion, the wife asked the trial court to make the child-support award retroactive to the date she had been awarded pendente lite custody. However, on appeal, and during the hearing on the wife’s postjudgment motion, the wife asked the trial court to make the award retroactive to the date the wife had filed her divorce complaint.

      . Although, unlike in Brown, the wife in the present case never specifically asked the trial court to award her pendente lite child support, she did ask the trial court during the trial to make any final child-support award retroactive. See A.B. v. J.B., 40 So.3d 723 (Ala. Civ. App. 2009) (indicating that a trial court may award retroactive child support for a period of time during which pendente lite child support had not been requested).