author: MAIN, Justice. SHAW, Justice (concurring in part and dissenting in part). SELLERS, Justice (concurring in part and dissenting in part).

text:
    EX PARTE ALTAPOINTE HEALTH SYSTEMS, INC., and Altapointe Healthcare Management, LLC
    (In re: Jim Avnet, father and next friend of Hunter Avnet, an incompetent person v. Altapointe Health Systems, Inc., and Altapointe Healthcare Management, LLC )
    1160544
    Supreme Court of Alabama.
    September 8, 2017
    Lee T. Clanton of Porterfield, Harper, Mills, Motlow & Ireland, P.A., Birmingham, for petitioners.
    Joseph F. McGowin IV and J. Allan Brown of Law Office of J. Allan Brown, LLC, Mobile; and William H. Odum, Jr. Dothan, for respondent.
   MAIN, Justice.

Altapointe Health Systems, Inc., and Altapointe Healthcare Management, LLC (hereinafter referred to collectively as "Altapointe"), petition for a writ of mandamus directing the Mobile Circuit Court to vacate its order compelling Altapointe to respond to certain discovery requests and to enter a protective order in its favor in an action pending against it. We grant the petition in part and deny it in part.

I. Facts and Procedural History

On March 13, 2016, Jim Avnet, as father and next friend of Hunter Avnet, sued Altapointe Health Systems, Inc., and Altapointe Healthcare Management, LLC, in the Mobile Circuit Court. Altapointe operates group homes for adults suffering from mental illness. Avnet asserted that Hunter, a resident at one of Altapointe's group homes, was assaulted by another resident, Kerdeus Crenshaw. Avnet alleged that Hunter was attacked by Crenshaw with a blunt object and was stabbed numerous times in the head with a kitchen knife.

Hunter sustained serious injuries as a result of the attack. Avnet asserted various claims of negligence and wantonness against Altapointe, including claims that Altapointe failed to comply with various unspecified regulations and guidelines designed to protect Hunter's safety and that Altapointe was negligent or wanton in hiring, training, and supervising its employees.

Along with his complaint, Avnet served Altapointe with written discovery requests. Avnet's discovery requests sought the total amount of Altapointe's liability-insurance coverage limits; information regarding prior claims or lawsuits against Altapointe alleging personal injury or assault at the home; information concerning whether Altapointe was aware of any previous "aggressive acts" by Crenshaw; and information and documents regarding Altapointe's own investigation of the incident.

Altapointe objected to Avnet's discovery requests, contending that the information and documents requested were protected by certain discovery privileges. With regard to the request for its insurance limits and information regarding prior claims, Altapointe contended that the discovery was barred by provisions of the Alabama Medical Liability Act, § 6-5-480 et seq., Ala. Code 1975, and § 6-5-540 et seq., Ala. Code 1975 ("the AMLA")-specifically, § 6-5-548(d), Ala. Code 1975, and § 6-5-551, Ala. Code 1975. Section 6-5-548(d) bars discovery of "[t]he limits of liability insurance coverage available to a health care provider." Section 6-5-551 prohibits a party from conducting discovery "with regard to any other act or omission." With regard to the interrogatory as to whether Altapointe had knowledge of prior "aggressive acts" by Crenshaw, Altapointe contended that it could not respond to the interrogatory without violating the psychotherapist-patient privilege. See § 34-26-2, Ala. Code 1975; Rule 503, Ala. R. Evid. Finally, Altapointe argued that discovery of information and documents related to Altapointe's own investigation into the incident was precluded by the quality-assurance privilege of § 22-21-8, Ala. Code 1975.

Avnet then moved to compel production of the discovery objected to by Altapointe. Altapointe opposed the motion to compel and moved for a protective order. On March 21, 2017, following a hearing, the trial court entered an order granting Avnet's motion to compel and denying Altapointe's motion for a protective order. The trial court ordered Altapointe to provide the requested discovery within 10 days of the order. This petition followed.

II. Standard of Review

" 'Mandamus is an extraordinary remedy and will be granted only when there is "(1) a clear legal right in the petitioner to the order sought, (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so, (3) the lack of another adequate remedy, and (4) properly invoked jurisdiction of the court." Ex parte Alfab, Inc., 586 So.2d 889, 891 (Ala. 1991). In Ex parte Ocwen Federal Bank, FSB, 872 So.2d 810 (Ala. 2003), this Court announced that it would no longer review discovery orders pursuant to extraordinary writs. However, we did identify four circumstances in which a discovery order may be reviewed by a petition for a writ of mandamus. Such circumstances arise (a) when a privilege is disregarded, see Ex parte Miltope Corp., 823 So.2d 640, 644-45 (Ala. 2001).... The burden rests on the petitioner to demonstrate that its petition presents such an exceptional case-that is, one in which an appeal is not an adequate remedy. See Ex parte Consolidated Publ'g Co., 601 So.2d 423, 426 (Ala. 1992).'

" Ex parte Dillard Dep't Stores, Inc., 879 So.2d 1134, 1136-37 (Ala. 2003)."

Ex parte Fairfield Nursing & Rehabilitation Ctr., L.L.C., 22 So.3d 445, 447 (Ala. 2009).

III. Analysis

Altapointe first contends that the trial court erred in compelling discovery relating to Altapointe's liability-insurance coverage limits and prior claims. Specifically, it argues that information is protected from discovery by two provisions of the AMLA. Section 6-5-548(d) bars discovery of "[t]he limits of liability insurance coverage available to a health care provider," and § 6-5-551 bars discovery "with regard to any other act or omission." To determine whether those provisions preclude the discovery sought, we must make a threshold determination as to whether Avnet's claims fall under the AMLA.

The AMLA applies "[i]n any action for injury or damages or wrongful death, whether in contract or in tort, against a health care provider for breach of the standard of care." § 6-5-548(a), Ala. Code 1975. There is no dispute that Altapointe is a "health-care provider" as that term is defined by the AMLA. Nevertheless, the AMLA does not apply to all claims against health-care providers arising out of the relationship between the health-care provider and the patient. Ex parte Addiction & Mental Health Servs., Inc., 948 So.2d 533 (Ala. 2006).

" '[T]he [AMLA] applies "only to medical-malpractice actions," Mock v. Allen, 783 So.2d 828, 832 (Ala. 2000), "in the context of patient-doctor and patient-hospital relationships." Thomasson [v. Diethelm], 457 So.2d [397,] 399 [ (Ala. 1984) ]. By definition, a "medical-malpractice action" is one for redress of a "medical injury." See 6-5-540 (purpose of the [AMLA] is to regulate actions for "alleged medical injury") (emphasis added [in Taylor ] ); see also Ala. Code 1975, § 6-5-549.1 (same).' "

Addiction & Mental Health Servs., 948 So.2d at 535 (quoting Taylor v. Smith, 892 So.2d 887, 893 (Ala. 2004) ).

Recently, in Ex parte Vanderwall, 201 So.3d 525, 537 (Ala. 2015), this Court reviewed a case in which a physical therapist was alleged to have sexually assaulted a patient by inappropriately touching the patient's genitals and breasts during a physical-therapy appointment. It was undisputed that there was no therapeutic or medical reason for the therapist to have touched the patient in such a manner. In Vanderwall, this Court explored the text and interpretative history of the AMLA and concluded that the AMLA was not applicable to the claim and, thus, did not provide the physical therapist relief from discovery of information relating to other acts or omissions on the part of the physical therapist. In reaching this conclusion we overruled the "place and time" rule previously applied this Court. We concluded: "[I]t is clear that the AMLA is not just concerned with who committed the alleged wrongful conduct or when and where that conduct occurred, but also with whether the harm occurred because of the provision of medical services." 201 So.3d at 537-38.

In this case, Hunter is alleged to have suffered a violent and unprovoked attack by a fellow resident of the group home in which he lived. The gravamen of Avnet's complaint is that Altapointe negligently and wantonly failed to safeguard Hunter from such an attack. There are no express allegations of medical negligence. Rather, Altapointe's contention that the AMLA applies to Avnet's claims relies solely on the fact that the attack occurred in its facility. Altapointe summarizes its argument as follows:

"Hunter Avnet's mental illness prevented him from being able to independently live and care for himself, hence his residency at [the group home]. The attack on Hunter Avnet occurred during his residency. Thus, Hunter Avnet's injuries, and subsequent legal claims, arose out the rendition of healthcare services."

(Altapointe's petition, at 13.) Altapointe's contention, however, merely applies the discredited "time and place" argument to the facts of this case; it has submitted no actual evidence linking the violent assault on Hunter to his medical care. Because there is no evidence before us that would permit us to conclude that the assault on Hunter was somehow linked to the administration of medical care or professional services by Altapointe, we cannot say that the AMLA applies to Avnet's claims. Accordingly, Altapointe has not established a clear legal right to an order limiting discovery under the above provisions of the AMLA.

Next, we turn to the Altapointe's contention that it was entitled to a protective order from the discovery sought related to any prior aggressive acts by Crenshaw on the basis of the psychotherapist-patient privilege. In his written discovery request to Altapointe, Avnet propounded the following interrogatory:

"Prior to the incident made the basis of this lawsuit, were the Defendants aware of any prior aggressive acts of K[e]rdeus Crenshaw based on any reports, incarcerations, arrests, convictions, treatments, or other similar incidences at any location?"

Altapointe objected to this interrogatory on the ground that to answer it would violate the psychotherapist-patient privilege. In essence, Altapointe argues that, because all of its knowledge of Crenshaw stems from the patient-provider relationship, answering Avnet's interrogatory would necessarily violate the psychotherapist-patient privilege. This argument, however, is based on an overbroad definition of the privilege.

The psychotherapist-patient privilege is intended to protect confidential relations and communications between a patient and his or her psychotherapist. We have described the privilege and its underlying public policy as follows:

"The psychotherapist-patient privilege, as adopted by the legislature, provides, in pertinent part, that 'the confidential relations and communications between licensed psychologists, licensed psychiatrists, or licensed psychological technicians and their clients are placed upon the same basis as those provided by law between attorney and client, and nothing in this chapter shall be construed to require any such privileged communication to be disclosed.' Ala. Code 1975, § 34-26-2. Rule 503, Ala. R. Evid., 'Psychotherapist-Patient Privilege,' provides further explication of this privilege, providing, in pertinent part:
" '(b) General Rule of Privilege. A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications, made for the purposes of diagnosis or treatment of the patient's mental or emotional condition, including alcohol or drug addiction, among the patient, the patient's psychotherapist, and persons who are participating in the diagnosis or treatment under the direction of the psychotherapist, including members of the patient's family.
" '(c) Who May Claim the Privilege. The privilege may be claimed by the patient, the patient's guardian or conservator, or the personal representative of a deceased patient. The person who was the psychotherapist at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the patient.
" '....'
"....
" 'The strength of the public policy on which the statutory psychotherapist-patient privilege is based has been well recognized by this Court. It follows that the privilege is not easily outweighed by competing interests.' Ex parte United Serv. Stations, Inc., 628 So.2d 501, 504 (Ala. 1993). The Court has explained the public policy that supports the privilege as follows:
" 'Statutes such as § 34-26-2 are intended to inspire confidence in the patient and encourage him in making a full disclosure to the physician as to his symptoms and condition, by preventing the physician from making public information that would result in humiliation, embarrassment, or disgrace to the patient, and are thus designed to promote the efficacy of the physician's advice or treatment. The exclusion of the evidence rests in the public policy and is for the general interest of the community. See 81 Am. Jur. 2d Witnesses § 231 at 262 (1976) ; Annot., 44 A.L.R.3d 24 Privilege, in Judicial or Quasi-judicial Proceedings, Arising from Relationship Between Psychiatrist or Psychologist and Patient (1972).
" ' "[A] psychiatrist must have his patient's confidence or he cannot help him. 'The psychiatric patient confides more utterly than anyone else in the world. He exposes to the therapist not only what his words directly express; he lays bare his entire self, his dreams, his fantasies, his sins, and his shame. Most patients who undergo psychotherapy know that this is what will be expected of them, and that they cannot get help except on that condition. ... It would be too much to expect them to do so if they knew that all they say-and all that the psychiatrist learns from what they say-may be revealed to the whole world from a witness stand.' "
" ' Taylor v. United States, 222 F.2d 398, 401 (D.C. Cir. 1955), quoting Guttmacher and Weihofen, Psychiatry and The Law (1952), p. 272.'

" Ex parte Rudder, 507 So.2d 411, 413 (Ala. 1987)." Ex parte Northwest Alabama Mental Health Ctr., 68 So.3d 792, 796-97 (Ala. 2011).

Unlike Northwest Alabama Mental Health Center, in which the plaintiff sought production of all of a patient's mental-health records, Avnet's request in this case is much narrower. Avnet seeks to know whether Altapointe had knowledge of any prior "aggressive" actions by Crenshaw. It is, of course, possible that Altapointe has knowledge of such actions acquired through confidential communications with Crenshaw made during the course of Crenshaw's treatment or diagnosis. In that case, such knowledge would be protected by the psychotherapist-patient privilege. But it is also possible that Altapointe had knowledge of prior incidents of violence or aggression that it did not acquire in confidence.

Rule 503, Ala. R. Evid., defines a "confidential communication" for the purposes of the psychotherapist-patient privilege as follows:

"A communication is 'confidential' if not intended to be disclosed to third persons other than those present to further the interest of the patient in the consultation, examination, or interview, or persons reasonably necessary for the transmission of the communication, or persons who are participating in the diagnosis and treatment under the direction of the psychotherapist, including members of the patient's family."

Thus, by definition, a patient's interactions with a third party (other than those described by the rule) are not a "confidential communications" with a psychotherapist. Thus, it follows that a mental-health provider's independent knowledge of a patient's assault on a third party cannot be considered as resulting from a confidential communication protected by the psychotherapist-patient privilege. By way of example, Altapointe presumably knows of Crenshaw's assault of Hunter because it happened in its facility to one of its residents, and not because (or at least not solely because) it was confidentially relayed to Altapointe by Crenshaw in the course of his treatment. Thus, its knowledge of that event is not the result of a protected confidential communication. Likewise, if Altapointe has knowledge of other such incidents it learned of outside of its confidential comminations and relations with Crenshaw, its knowledge of such incidents is discoverable.

Thus, based on the above, we reject Altapointe's blanket contention that all information within its knowledge pertaining to Crenshaw is protected by the psychotherapist-patient privilege. Whether any particular information responsive to Avnet's interrogatory concerning Crenshaw is protected by the psychotherapist-patient privilege is an issue that may be further addressed by the trial court upon a properly supported motion for a protective order. Based on the materials and arguments now before this Court, however, Altapointe has not established a clear legal right to relief from Avnet's discovery under the psychotherapist-patient privilege.

Finally, Altapointe argues that the incident reports it prepared in the wake of the Crenshaw's assault on Hunter are "quality-assurance" materials protected from disclosure by § 22-21-8. Section 22-21-8 provides, in part:

"(a) Accreditation, quality assurance and similar materials as used in this section shall include written reports, records, correspondence, and materials concerning the accreditation or quality assurance or similar function of any hospital, clinic, or medical staff. The confidentiality established by this section shall apply to materials prepared by an employee, advisor, or consultant of a hospital, clinic, or medical staff and to materials prepared by an employee, advisor or consultant of an accrediting, quality assurance or similar agency or similar body and to any individual who is an employee, advisor or consultant of a hospital, clinic, medical staff or accrediting, quality assurance or similar agency or body.
"(b) All accreditation, quality assurance credentialling and similar materials shall be held in confidence and shall not be subject to discovery or introduction in evidence in any civil action against a health care professional or institution arising out of matters which are the subject of evaluation and review for accreditation, quality assurance and similar function, purposes, or activities. No person involved in preparation, evaluation or review of accreditation, quality assurance or similar materials shall be permitted or required to testify in any civil action as to any evidence or other matters produced or presented during the course of preparation, evaluation, or review of such materials or as to any finding, recommendation, evaluation, opinion, or other action of such accreditation, quality assurance or similar function or other person involved therein. ..."

This Court has given § 22-21-8 a broad interpretation. See, e.g., Fairfield Nursing, 22 So.3d at 452 (noting that the language of § 22-21-8 does not require the existence of a quality-assurance committee or limit the privilege to materials created by such a committee); Ex parte Krothapalli, 762 So.2d 836, 839 (Ala. 2000) (noting the "broad language used by the Legislature" in the title to the act that became § 22-21-8 ). Nevertheless, the party asserting the quality-assurance privilege has the burden of proving its applicability as well as the prejudicial effect of disclosing the information in question. Ex parte Coosa Valley Health Care, Inc., 789 So.2d 208, 219 (Ala. 2000) (noting that, with regard to § 22-21-8, "the burden of proving that a privilege exists and proving the prejudicial effect of disclosing the information is on the party asserting the privilege").

In Fairfield Nursing, a long-term-care facility sought mandamus relief from an order compelling production of incident reports related to the alleged wrongful death of a patient. In support of its assertion of the quality-assurance privilege, the facility offered two identically worded affidavits from its executive director and director of nursing, which stated:

" 'Incident reports and witness statements concerning residents are not kept in the ordinary course of business, nor do they become a part of the resident medical chart. ... Incident reports and witness statements are created for quality assurance purposes. The creation of the reports and the gathering of statements are needed to guarantee the high quality of care for all residents. ... The confidentiality of the incident reports and witness statements is needed to keep investigations of incidents at the facility candid and open. Production of incident reports and witness statements to those outside the facility would be detrimental to the quality of care provided for all residents.' "

22 So.3d at 448. We held in Fairfield Nursing that this evidence was sufficient to support application of the quality-assurance privilege.

In Ex parte Qureshi, 768 So.2d 374 (Ala. 2000), a patient sued her doctor and the hospital at which the doctor was credentialed alleging medical malpractice. The patient sought discovery from the hospital concerning the doctor's qualifications. The hospital objected to the discovery under § 22-21-8 and provided an affidavit from the chairman of its credentialing committee.

The chairman testified that the documents responsive to the discovery request were part of the hospital's credentialing file on the doctor; that it was essential that the materials gathered by the hospital be kept confidential, so as to ensure that physicians applying for hospital staff privileges would provide complete and accurate information about their qualifications; and that if the materials were not kept confidential, " 'physicians and health care institutions from whom materials are requested in the credentialing process would be less inclined to provide frank and open criticisms of physician applicants where warranted.' " 768 So.2d at 376. Based on this evidence, we held that the trial court erred in compelling production of the responsive documents.

In this case, Altapointe submitted the affidavit of Sherill Alexander, a registered nurse employed as Altapointe's corporate compliance officer, to support its claim of a quality-assurance privilege. Alexander testified:

"3. In the aftermath of the unexpected attack on Mr. Avnet, Altapointe, through its Performance Improvement Committee, of which I am a member, directed a group of employees to investigate the incident to determine the factors that caused the incident, and whether adequate safeguards were in place or whether there needs to be additional safeguards implemented or put into place to prevent future incidents from reoccurring. As a result of the investigation, we generated a 'Confidential Incident Report.'
"4. The process of the investigation, the interviews conducted and the interview reports/summaries, and the 'Confidential Incident Report' itself were made for the purpose of quality assurance.
"5. The investigation process, the interviews and interview summaries, and the Incident report are created to guarantee the high quality of care for all patients/consumers.
"6. Confidentiality is essential to ensure that we gather complete and accurate information.
"7. These documents do not become part of the consumers'/patients' medical chart, and are used solely for the purposes of quality assurance and improvement."

This testimony is precisely the type of evidence we have previously held to be sufficient to establish the existence of the quality-assurance privilege. Accordingly, we hold that Altapointe sufficiently established the application of the privilege. Thus, the incident reports and related documents created by Altapointe's Performance Improvement Committee in response to the incident are not subject to discovery pursuant to § 22-21-8.

V. Conclusion

Altapointe has offered sufficient evidence demonstrating that it is entitled to the quality-assurance privilege provided in § 22-21-8 as to Avnet's request for information and documents relating to Altapointe's own investigation of the incident. Accordingly, the petition for writ of mandamus is granted as to that request. As to the remaining requests, however, Altapointe has not sufficiently established that the discovery protections of the AMLA or the psychotherapist-patient privilege apply. Thus, as to those requests, the petition is denied.

PETITION GRANTED IN PART AND DENIED IN PART; WRIT ISSUED.

Bolin, Parker, and Wise, JJ., concur.

Bryan, J., concurs in the result.

Shaw and Sellers, JJ., concur in part and dissent in part.

Murdock, J., concurs in part, concurs in the result in part, and dissents in part.

Stuart, C.J., recuses herself.

SHAW, Justice (concurring in part and dissenting in part).

As to the rulings of the main opinion on the psychotherapist-patient privilege and the quality-assurance privilege in Ala. Code 1975, § 22-21-8, I concur. As to the portion of the main opinion discussing the applicability of the Alabama Medical Liability Act ("the AMLA") in this case, I respectfully dissent.

In discussing whether the AMLA applies in this case, the main opinion in part relies on the decision in Ex parte Vanderwall, 201 So.3d 525 (Ala. 2015). I dissented from that decision, but I do not believe that it commands the result in this case. It states: "[T]he AMLA is not just concerned with who committed the alleged wrongful conduct or when and where that conduct occurred, but also with whether the harm occurred because of the provision of medical services." 201 So.3d at 537. Not only does Ex parte Vanderwall acknowledge that "when and where" the wrongful conduct occurs is relevant, the analysis can also look to whether harm occurred because of the provision of medical services. To me, all of those factors are relevant in the instant case.

In its petition for a writ of mandamus, Altapointe argues as follows:

" 'The Legislature declared that it enacted the AMLA in response to increasing health-care costs caused by "the increasing threat of legal actions for alleged medical injury." ' Ex parte Vanderwall, 201 So.3d 525, 537 (Ala. 2015) (quoting Ala. Code § 6-5-540 (1975) (citations omitted)). Thus, the AMLA will apply to actions against healthcare providers alleging a 'breach of the standard of care.' Ala. Code § 6-5-540 (1975). A breach of the standard of care is defined as the 'fail[ure] to exercise such reasonable, care, skill and diligence as other similarly situated health care providers in the same general line of practice, ordinarily have and exercise in a like case.' Ala. Code § 6-5-548 (1975). This Court has interpreted the AMLA to apply to 'conduct that is, or that is reasonably related to, the provision of health-care services allegedly resulting in a medical injury.' Ex parte Vanderwall, 201 So.3d at 537 (citations omitted).
"Here, the standard of care applicable to Altapointe is to provide residential and mental health care in accordance with other similarly situated residential mental health facilities. Providing residential care was an integral part of the medical care that Hunter Avnet received while at Country Wood Court Group Home. Hunter Avnet's mental illness prevented him from being able to independently live and care for himself, hence his residency at Country Wood. The attack on Hunter Avnet occurred during his residency. Thus, Hunter Avnet's injuries, and subsequent legal claims, arose out of the rendition of healthcare services.
"Avnet himself characterizes the claims against Altapointe as based upon the 'fail[ure] to provide a reasonably safe environment at the Country Wood Court Group Home.' The very purpose of Country Wood is to provide residential care in conjunction with mental health services. Thus, providing a safe residential environment is both the basis of the applicable standard of care and Avnet's Complaint.
"Importantly, as part of Avnet's claims, he is asserting that Altapointe knew or should have known that Kerdeus Crenshaw was violent, and thus should have prevented the unexpected attack. In fact, Avnet claims that 'the remainder of the [discovery] requests are clearly tailored to discover factual information concerning this event and what Altapointe knew about Kerdeus Crenshaw's potential for violence.' In fact, Avnet has gone as far as to request:
" 'A complete copy of the resident file of K[e]rdeus Crenshaw, including but not limited to: write-ups, disciplinary reports, disciplinary actions, hospitalizations, list of medicines, therapeutic notes, progression notes, interview notes, therapy notes, and any other type of report, memo, or note, that in any way touches or concerns K[e]rdeus Crenshaw.'
"The only source for Altapointe's alleged knowledge about Crenshaw can only come from Crenshaw's medical records/mental health treatment. Thus, Avnet's own allegations point to one logical conclusion: that the AMLA applies to this action.
"... This case implicates the provision of medical services to the actual plaintiff within the context of a patient-hospital (or residential facility) relationship. ... Moreover, Avnet's injury actually occurred during the provision of healthcare services."

Altapointe's petition, at 12-15 (citations to exhibits omitted).

Altapointe is not arguing that the AMLA applied, as the main opinion states, "solely on the fact that the attack occurred in its facility," 249 So.3d at 1113, but also because the duty it allegedly breached was the failure to provide a reasonably safe environment at the facility, i.e., to properly house mental-health patients in a mental-health facility. It seems to me that how residents of mental-health facilities are housed, supervised, and protected from harming themselves or others involves the "provision of medical services." Ex parte Vanderwall, 201 So.3d at 537. Altapointe was not operating a hotel; it was operating a residential mental-health facility. Crenshaw was not a guest; he was a patient. A decision regarding whether the residents posed a danger to themselves or others, and how those residents should be housed to prevent such danger, involves a medical/psychological determination, not the decision of a layperson.

The main opinion states: "Because there is no evidence before us that would permit us to conclude that the assault on Hunter was somehow linked to the administration of medical care or professional services by Altapointe, we cannot say that the AMLA

applies to Avnet's claims." 249 So.3d at 1113. If the main opinion's holding is indeed based solely on a perceived failure to produce evidence, then the decision in this case is limited and should not be read broadly as adopting a blanket rule prohibiting the application of the AMLA in cases alleging tortious acts committed by mental-health patients under the care of a medical provider.

SELLERS, Justice (concurring in part and dissenting in part).

I concur in the holding of the main opinion that the psychotherapist-patient privilege is not so comprehensive as to exclude all knowledge the operators of a home for mentally disabled persons might learn about a patient. I agree that to the extent a health-care provider has information, not learned in confidence, such information is not subject to the privilege. I also concur in the holding that incident reports prepared for quality-assurance are not discoverable. However, I dissent from the main opinion insofar as it allows the plaintiff to discover the limits of liability insurance. I believe that, once it is established that a defendant is a health-care provider, then § 6-5-548, Ala. Code 1975, bars discovery of insurance limits. Notwithstanding that the act that is the subject of litigation may not have been related to the provision of medical services, once a threshold determination is made that the defendant is a health-care provider, insurance limits are not discoverable.

MURDOCK, Justice (concurring in part, concurring in the result in part, and dissenting in part).

As to the holding of the Court that the Alabama Medical Liability Act, § 6-5-480 et seq. and § 6-5-540 et seq., Ala. Code 1975 ("the AMLA"), is not applicable in this case, I concur in the result. I concur in that portion of the main opinion discussing the psychotherapist-patient privilege. I respectfully dissent as to the holding of the Court that certain documents qualify for quality-assurance protection under § 22-21-8, Ala. Code 1975.

As to the AMLA issue, I write separately only to note that §§ 6-5-548 and 6-5-551, Ala. Code 1975, apply to "health care providers." Section 6-5-542, Ala. Code 1975, defines a "health care provider" as a "a medical practitioner, dental practitioner, medical institution, physician, dentist, hospital, or other health care provider as those terms are defined in Section 6-5-481." Section 6-5-481(1), Ala. Code 1975, defines "medical practitioner" as one "licensed to practice medicine or osteopathy," while § 6-5-481(8) defines "other health care provider" as "[a]ny professional corporation or any person employed by physicians, dentists, or hospitals who are directly involved in the delivery of health care services." I am unsure how the defendants in this case qualify as "health care providers" under these definitions.

      In Vanderwall, we reasoned:
      "Vanderwall has asked us to apply an interpretation of the AMLA from cases that exalt a broad reading of the statute over the plain text. Mock [v. Allen, 783 So.2d 828 (Ala. 2000),] and O'Rear [v. B.H., 69 So.3d 106 (Ala. 2011),] posit that the legislature intended the AMLA to apply to any action in which the alleged injury was inflicted by a medical provider at the same place and time as medical treatment, rather than applying only to actions in which the alleged injury occurred because of medical treatment. ... We do not believe the legislature intended for the protections afforded under the AMLA to apply to health-care providers who are alleged to have committed acts of sexual assault; such acts do not, by any ordinary understanding, come within the ambit of 'medical treatment' or 'providing professional services.' "
      201 So.3d at 536-37.

      Before Altapointe filed this petition, Avnet formally withdrew his request for production of Altapointe's file on Crenshaw and informed counsel for Altapointe in writing that he did not seek Crenshaw's medical records and did not consider such records responsive to any of his discovery requests.

      We note that § 22-21-8 is a statute generally applicable to hospitals and health-care facilities and is not a part of the AMLA.

      Avnet has not asked this Court to revisit its interpretation of § 22-21-8.

      Avnet contends that the affidavit was untimely under Rule 6(d), Ala. R. Civ. P., because it was submitted the night before the hearing on Avnet's motion to compel and Altapointe's motion for a protective order. Nothing in the petition or attachments, however, indicates that Avnet objected to the affidavit or that the trial court excluded the affidavit. Thus, we presume that the trial court considered Alexander's affidavit. See Ex parte McKenzie, 37 So.3d 128, 131 n.1 (Ala. 2009).

      See Ala. Code 1975, § 6-5-480 et seq. and § 6-5-540 et seq.

      As does the main opinion, I use the name "Altapointe" to refer collectively to the petitioners Altapointe Health Systems, Inc., and Altapointe Healthcare Management, LLC.

      These arguments were made nearly verbatim in the trial court.

      The Court's application in this case of both the psychotherapist-patient privilege and Ala. Code 1975, § 22-21-8, demonstrates that there was no dispute that Crenshaw was receiving psychological care and that the "group home" was a medical facility.


source: Caselaw Access Project

author: DONALDSON, Judge.

license: Public Domain

text:
    Ronald MEEHAN v. Felicia MEEHAN
    Felicia Meehan v. Ronald Meehan
    2150734
    Court of Civil Appeals of Alabama.
    May 12, 2017 Certiorari Denied September 15, 2017
    Alabama Supreme Court 1160548 and 1160746
    L. Brian Chunn of Stone Crosby, P.C., Daphne, for appellant/cross-appellee Ronald Meehan.
    Robert E. Lusk, Jr., of Lusk Law Firm, LLC, Fairhope, for appellee/cross-appellant Felicia Meehan.
    On Application for Rehearing
   DONALDSON, Judge.

This court's no-opinion order of affirmance issued on March 17, 2017, is withdrawn, and the following is substituted therefor. Ronald Meehan ("the husband") appeals from a judgment of the Baldwin Circuit Court ("the trial court") divorcing him from Felicia Meehan ("the wife"), awarding alimony, and dividing the parties' property. The wife cross-appeals, challenging the amount of the child-support award and the division of property. We affirm the judgment.

Facts and Procedural History

The husband and the wife met in Georgia in 1994 through their employment with a home-building company. In 1997, they became involved in a romantic relationship while the husband was still married to his second wife. On February 1, 2000, the parties' child, S.L.M. ("the child"), was born. In 2002, the husband divorced his second wife, and, in 2004, the parties began living together.

In 2006, the wife and the child moved from Georgia to Baldwin County in anticipation of the child's starting school. The husband remained in Georgia with the intent to relocate to Baldwin County within the next year. The wife and the child lived in a house on lot 7, one of two lots ("lot 7 and lot 8") that the husband owned on Fort Morgan Road. On August 5, 2006, the parties were ceremonially married. According to the husband's testimony, he was forced to continue his employment in Georgia because of the recent economic crisis, and the husband believed that he would be unable to find new employment at 60 years old in the home-building industry. As a result, the husband continued to live in Georgia and traveled to Baldwin County to visit the wife and the child on the weekends.

The child did not attend public school in Baldwin County, as the parties had planned, but attended different private schools in the area. From 2006 to 2011, the wife drove over 200 miles each day transporting the child from Fort Morgan to the child's school in Mobile. In 2011, the wife and the child moved to a house that the parties purchased in Daphne that was located closer to the child's school. The husband retired in May 2014 and began living full-time with the wife and the child in the house in Daphne.

On February 3, 2015, the husband filed a complaint for a divorce in the trial court. The wife filed an answer and a counterclaim for a divorce in which she asserted, among other things, that the parties had been common-law married since 2004. Throughout the course of the proceedings, each party filed numerous motions that were addressed by the trial court before the trial.

On March 17 and 18, 2016, the trial court held a trial. The husband was 67 years old and the wife was 50 years old at the time of the trial. At the beginning of the trial, the husband and the wife stipulated to a custodial and visitation arrangement wherein the wife would have sole physical custody of the child. The parties also agreed that two specified financial accounts would be used for the purpose of funding the child's private-high-school tuition and college tuition.

The husband testified that, when the wife and the child moved to Baldwin County, the parties planned on the husband's retiring and the wife's finding employment. The husband testified that the wife never sought employment and refused to work outside the home. The husband testified that his income dropped significantly when he retired. The husband had earned $231,328 in 2013, but, in 2014, his income was $65,487. The husband testified that, about six months after he retired, he and the wife had a discussion about her spending habits and the need for her to obtain employment but that the wife refused to seek employment and instead told the husband to find employment. The husband testified that, although she transported the child to and from school, the wife would not perform housework, including laundry and cleaning the house. The husband also testified that the parties had not shared a bed since 2007 or 2008.

The husband testified that, in July 2014, as part of his retirement planning, he created the Ronald Meehan Revocable Trust ("the trust") for the purpose of ensuring that all five of his children were taken care of after his death. The husband has four children from his previous marriages in addition to his child with the wife. The husband placed into the trust lot 7 and lot 8 and a financial account for his anticipated long-term-care expenses that the husband had accumulated before the parties' marriage. The long-term-care account had approximately $255,000 in it at the time of the trial. The husband testified that he had used approximately $50,000 from that account over the past year to pay taxes, insurance, and expenses for lot 7 and lot 8.

The husband testified that his monthly income was approximately $4,800, which consisted of a pension benefit, his Social Security benefit, and a Social Security benefit that he receives for the child until she reaches the age of 18. The husband testified that he had not drawn any money from his retirement accounts since his retirement in May 2014 and that he wanted to wait as long as possible before drawing from his retirement accounts. The husband testified that he had a retirement account with an approximate balance of $337,000 and another retirement account with an approximate balance of $538,000. The husband testified that, when he begins to draw income from his retirement accounts, his monthly income will be between $5,000 and $10,000 per month. The husband testified that his monthly expenses ranged from $1,500 to $1,800. The husband testified that he could afford to pay alimony to the wife for a short period.

The wife described her relationship with the husband as "being in prison." The wife testified that, on average since 2004, the husband had deposited $10,000 per month in an account for the use of the wife and the child. The wife testified that the husband had always paid off credit-card account balances in full every month until June 2015. The wife testified that she and the husband had never had discussions about her obtaining employment and that he never restricted her spending.

The wife testified that she had earned her general equivalency diploma or GED. She testified that her last employment was from 1994 to 2004 when she worked for a home-building company and earned $65,000 annually. The wife testified that she had $43,000 in a retirement account from that employment. The wife testified that, over the past few months before trial, she had sought employment at four or five different places without success.

The wife testified that she would need at least $7,000 each month in alimony. She testified that her basic monthly expenses were $4,221 per month and that she needed an additional $2,321 for other expenses, which included gas, prescriptions, cell-phone expenses, vehicle maintenance, insurance, clothing, shoes, etc. When asked how much she would be willing to contribute to her monthly expenses, the wife replied: "Depends on when I get a job and how much I make."

On March 18, 2016, the trial court entered the following order: "MOTION FOR SUMMARY JUDGMENT PURSUANT TO RULE 56 filed by MEEHAN FELICIA ANN was set this date. Testimony concluded. Following testimony, order issued with Attorney R. Powell to prepare order." On March 31, 2016, the husband filed what he described as a motion to alter, amend, or vacate the trial court's March 18, 2016, order in which he challenged the sufficiency of the evidence.

On April 7, 2016, the trial court entered a final judgment. In the judgment, the trial court ordered, among other things:

"6. The husband shall pay to the wife $574/month in ongoing monthly child support until the child reaches the age of majority.... A copy of the completed Child Support Guidelines has been submitted herewith for the Court's record. Under no circumstances shall the payment of this child support be dischargeable in bankruptcy.
"7. The husband shall be responsible for payment of the child's health insurance premiums until she reaches the age of majority, or until she is no longer insurable pursuant to the policy provisions, whichever is longer.
"8. The husband shall be responsible for 100% of the child's non-covered medical expenses, including any deductibles therefor, until the child reaches majority. The wife shall provide the husband with written documentation for any non-covered medical expenses within thirty (30) days after the date of said medical service. The husband shall reimburse the wife 100% of said non-covered medical expense within thirty (30) days thereafter.
"9. The parties shall make every reasonable effort to communicate about medical expenses for the child, and whenever possible, a joint decision shall be reached by the parties regarding [the child's] medical treatment(s) ahead of time. In the event the parties cannot agree, the non-covered medical expense for that treatment shall be split 50/50 and reimbursement shall follow the same procedure set forth above.
"10. Based on the evidence provided at trial, the Court finds that the effective date of the parties' marriage is the same date as their ceremonial marriage, to-wit: August 6, 2006. The court does not find any credible evidence that a Common Law marriage existed prior to the date of the ceremonial marriage.
"11. The Court will accept the parties' stipulation that the T. Rowe Price College tuition account created and intended for [the child's] college tuition shall be maintained and utilized solely for any and all tuition, room, board, fees, books, or other college expenses until it is exhausted. In the event that [the child] receives scholarships, or that the funds in the said college tuition account are not exhausted upon [the child's] completion of college, any remaining monies shall be given to [the child].
"12. The Court will accept the parties' stipulation that the Wells Fargo account for UMS high school tuition account created and intended for [the child's] UMS high school tuition shall be maintained and utilized solely for any and all tuition, room, board, fees, books, or other high school expenses until it is exhausted, in the event that [the child] receives scholarships, or that the funds in the said high school tuition account are not exhausted upon [the child's] completion of high school, any remaining monies shall be utilized first for college expenses and, thereafter, if there are remaining funds, shall be given to [the child].
"13. The Court finds that the Daphne Home is jointly-owned property and should be immediately placed on the real estate market for sale. Once sold, the wife shall receive any and all proceeds after any indebtedness, reasonable real estate commissions and closing costs are paid. Until the Daphne home is sold, the wife shall be 100% responsible for the payment of the home's mortgage and/or any other financial obligations relating to the said home.
"14. The Court finds that Lot 7 and residence at Fort Morgan were initially the husband's separate property, but have been used throughout the marriage as marital property. Accordingly, Lot 7 and the residence thereon shall immediately be placed on the real estate market for sale. Once sold, the husband shall receive any and all proceeds after any indebtedness, reasonable real estate commission and closing costs are paid.
"15. Based on the evidence provided at trial, the Court finds that the Ronald L. Meehan Revocable Trust is a valid trust and the properties or assets included in the trust shall belong to the trust excepting Lot 7 and residence at Fort Morgan (more specifically set out in Paragraph 1[4] hereinbefore).
"16. The husband's retirement accounts shall be awarded to the husband and the wife shall have no claim or interest therein.
"17. The wife's retirement account shall be awarded to the wife and the husband shall have no claim or interest therein.
"18. The husband shall be 100% responsible for payment of the parties' joint credit card (balance approximately $34,000). The wife shall be held harmless by the husband from any liability thereon.
"19. Each party shall be 100% responsible for payment of any credit cards, or other debts, in their own name (except for mortgage payment on the Daphne Home as set out in detail in Paragraph 1[3] ).
"20. Based on the evidence provided at trial and the disparity in the parties' respective incomes the Court does award the wife alimony to be paid by the husband as follows:
"1. a. The husband shall pay $5000/month for a term of sixty (60) months; and
"b. After the initial sixty (60) month term, the husband shall pay $2500/month until the wife remarries, cohabitates or dies.
"2. The husband shall pay the wife's health insurance for a period of two (2) years after the date of this decree. After said two (2) years, the husband shall no longer be responsible for the wife's insurance.
"3. The husband shall receive his Toyota Rav 4.
"4. The wife shall receive her Toyota Tundra.
"5. The husband shall receive his 1964 Corvette, boat, and woodworking equipment.
"6. All personal belongings have been already satisfactorily divided.
"7. The husband shall be awarded $1000 in attorney's fees to be reimbursed by the wife for her contempt (see October 2015 Order). The wife shall be awarded $5000 in attorney's fees to be reimbursed by the husband. These respective attorney's fees amounts may be set off, one against the other. Each shall be a judgment for which let execution lie...."

On May 7, 2016, the wife filed a motion to alter, amend, or vacate the divorce judgment. The husband's premature motion filed on March 31, 2016, "quickened" on April 7, 2016, the day the judgment was entered.

Miller v. Miller, 10 So.3d 570, 572 (Ala. Civ. App. 2008). On May 31, 2016, after a hearing, the trial court denied each party's postjudgment motion. On June 2, 2016, the husband filed a timely notice of appeal to this court. On June 14, 2016, the wife filed a timely cross-appeal.

The Husband's Appeal

The husband challenges the trial court's award of alimony in three respects: first, that it exceeds the husband's current monthly income; second, that the trial court wrongfully considered the husband's retirement accounts and trust assets in making the alimony award; and third, that the award does not consider the wife's earning ability and age and the health of the parties or account for the property division.

"The determination of whether the petitioning spouse has a need for periodic alimony, of whether the responding spouse has the ability to pay periodic alimony, and of whether equitable principles require adjustments to periodic alimony are all questions of fact for the trial court, Lawrence v. Lawrence, 455 So.2d 45, 46 (Ala. Civ. App. 1984), with the last issue lying particularly within the discretion of the trial court. See Nolen v. Nolen, 398 So.2d 712, 713-14 (Ala. Civ. App. 1981). On appeal from ore tenus proceedings, this court presumes that the trial court properly found the facts necessary to support its judgment and prudently exercised its discretion. G.G. v. R.S.G., 668 So.2d 828, 830 (Ala. Civ. App. 1995). That presumption may be overcome by a showing from the appellant that substantial evidence does not support those findings of fact, see § 12-21-12(a), Ala. Code 1975, or that the trial court otherwise acted arbitrarily, unjustly, or in contravention of the law. Dees v. Dees, 390 So.2d 1060, 1064 (Ala. Civ. App. 1980)."

Shewbart v. Shewbart, 64 So.3d 1080, 1089 (Ala. Civ. App. 2010).

"A petitioning spouse proves a need for periodic alimony by showing that without such financial support he or she will be unable to maintain the parties' former marital lifestyle." Shewbart, 64 So.3d at 1087. The wife testified to the parties' marital standard of living, and she and the husband both testified that she had reduced her monthly expenses. It was undisputed that the wife terminated her employment to stay home with the child and that the wife had not been employed outside the home for over 10 years. The wife testified that her recent attempts to secure employment had been unsuccessful. The wife testified regarding, and submitted documentary evidence related to, her monthly expenses to support her contention that she needed alimony in order to maintain some semblance of the life that she had enjoyed while married. The evidence supports the trial court's conclusion that the wife demonstrated a need for periodic alimony.

"Once the financial need of the petitioning spouse is established, the trial court should consider the ability of the responding spouse to meet that need." Shewbart, 64 So.3d at 1088 (citing Herboso v. Herboso, 881 So.2d 454, 458 (Ala. Civ. App. 2003) ). The husband asserts in his brief that his monthly income, which includes his pension benefit and Social Security benefits, totals $4,057, and that the alimony award of $5,000 per month exceeds his income. We note that, during the trial, the husband testified that his monthly income was approximately $4,800 and that he could afford to pay the wife alimony for a short period. The husband asserts that the alimony obligation, coupled with his other court-ordered monthly expenses of $574 in child support and $712 in insurance premiums, along with his personal monthly expenses of $1,500, imposes an undue economic hardship on him.

The husband argues that the trial court wrongfully considered his retirement accounts and trust assets in making the alimony award, and he asserts that the trial court could consider only his current income. We agree, generally, that "[t]he source of periodic-alimony payments must be the current income of the payor spouse." Rose v. Rose, 70 So.3d 429, 433 (Ala. Civ. App. 2011) (citing Smith v. Smith, 866 So.2d 588, 591 (Ala. Civ. App. 2003) ). The current income, however, is not the sole factor for the trial court to consider in determining an award of periodic alimony.

"[W]hen determining the amount of periodic alimony to be awarded, the trial court shall consider the earning capacity of the parties. See, e.g., Ebert v. Ebert, 469 So.2d 615, 618 (Ala. Civ. App. 1985) ('[The] ability to earn, as opposed to actual earnings, is a proper factor to consider in deciding ... an initial award of ... periodic alimony ....'). As with the matter of voluntary underemployment for child-support purposes, the factual question of the earning capacity of a spouse is to be decided by the trial court as an exercise of its judicial discretion. See Lackey v. Lackey, 18 So.3d 393 (Ala. Civ. App. 2009). Hence, we may reverse a judgment based on a finding regarding the earning ability of a spouse for alimony purposes only if the trial court has exceeded its discretion in making that finding. See Warner v. Warner, 693 So.2d 487, 488-89 (Ala. Civ. App. 1997)."

Stone v. Stone, 26 So.3d 1228, 1231 (Ala. Civ. App. 2009). See also Rieger v. Rieger, 147 So.3d 421, 431 (Ala. Civ. App. 2013) ("For purposes of determining a spouse's ability to pay, and for purposes of calculating an appropriate amount of periodic alimony, the trial court should ordinarily use the spouse's net income as the starting point for these evaluations.").

In Smith v. Smith, 866 So.2d 588, 592 (Ala. Civ. App. 2003), this court made clear that a trial court cannot "consider, as a source of income from which to pay periodic alimony, a retirement account from which the account holder is not currently drawing benefits." The evidence here was undisputed that the husband had not yet drawn any funds from his retirement accounts; therefore, the trial court could not consider those accounts in determining its alimony award. Nothing in the judgment indicates, however, that the trial court considered the retirement accounts in fashioning its alimony award. " 'This court cannot assume error, nor can it presume the existence of facts to which the record is silent.' " Leeth v. Jim Walter Homes, Inc., 789 So.2d 243, 247 (Ala. Civ. App. 2000) (quoting Newman v. State, 623 So.2d 1171, 1172 (Ala. Civ. App. 1993) ).

Although the trial court, in these circumstances, could not consider the husband's retirement accounts, the trial court could consider the husband's trust assets in determining whether he had the financial ability to pay alimony.

"The ability to pay [alimony] may be proven by showing that the responding spouse has a sufficient separate estate, following the division of the marital property, see § 30-2-51(a), Ala. Code 1975, and/or sufficient earning capacity to consistently provide the petitioning spouse with the necessary funds to enable him or her to maintain the parties' former marital standard of living. Herboso [v. Herboso, 881 So.2d 454 (Ala. Civ. App. 2003)."

Shewbart, 64 So.3d at 1088.

The evidence indicated that the husband had used at least $50,000 in funds from the long-term-care account held in trust over the course of the year preceding the trial. The husband testified that he had used those funds to pay for taxes, insurance, and maintenance on lot 7 and lot 8. The trial court found that lot 7 was marital property because the family had lived in the house on lot 7 for at least six years. Therefore, the trial court could have found that the husband regularly used the funds from the long-term-care account and that those funds were a source of income for the purpose of determining the award of periodic alimony. See § 30-2-51(a), Ala. Code 1975.

Furthermore, during the hearing on the postjudgment motions, the court noted its skepticism of the husband's credibility with regard to his financial situation:

"THE COURT: Okay. Look, I am going to go ahead and put a few things out here. As it regards [the husband], yes, I find there's credibility issues. I am not certain that his income is what he says it is. I mean, he has the ability to draw from his trust that he created specifically to protect himself and only himself. He has the ability to draw and that is why I set the alimony where it was."

The trial court, having received ore tenus testimony from the husband, could have concluded that the husband was not forthcoming with his true financial situation and that he had the ability to pay the ordered alimony.

"[T]he trial court was in the best position to observe the witnesses and their demeanor, and to adjudge their credibility. Porter v. Porter, 441 So.2d 921 (Ala. Civ. App. 1983). In determining the weight to be accorded testimony, the trial court, as sole judge of the credibility of witnesses, considers the demeanor and apparent candor or evasiveness of the witnesses, and the trial court may disbelieve and disregard portions of testimony and should accept only that testimony it considers worthy of belief. Reid v. Flournoy, 600 So.2d 1024 (Ala. Civ. App. 1992). See also Brown v. Brown, 586 So.2d 919 (Ala. Civ. App. 1991)."

Bunn v. Bunn, 628 So.2d 695, 697 (Ala. Civ. App. 1993).

After being satisfied that the petitioning spouse has a need for periodic alimony and that the responding spouse has some ability to meet that need, the trial court should consider the equities of the case. Shewbart, 64 So.3d at 1088. Although the length of the marriage in and of itself does not determine the right to an award of alimony, "the longer the parties have maintained certain living and financial arrangements, the more fair it will seem that those arrangements should be maintained beyond the divorce to the extent possible." Shewbart, 64 So.3d at 1088-89 (citing Edwards v. Edwards, 410 So.2d 91, 93 (Ala. Civ. App. 1982) ). The evidence indicated that, although the parties had been married less than 10 years, they had been in a long-term relationship and the husband had been supporting the wife and the child for at least 15 years. The wife testified that the husband had routinely deposited an average of $10,000 per month in an account for the wife until the parties were in the midst of the divorce proceedings. The wife denied the husband's assertions that the parties' mutually intended for her to obtain employment, and the trial court was free to believe the wife's testimony. See Bunn, 628 So.2d at 697. Based on the circumstances, we cannot say that the trial court exceeded its discretion in its alimony award.

Moreover, we note that the husband was awarded a significant portion of the marital estate, and alimony and property awards must be considered together.

"A trial court's determination as to alimony and the division of property following an ore tenus presentation of the evidence is presumed correct. Parrish v. Parrish, 617 So.2d 1036 (Ala. Civ. App. 1993). Moreover, issues of alimony and property division must be considered together, and the trial court's judgment will not be disturbed absent a finding that it is unsupported by the evidence so as to amount to an abuse of discretion. Id."

Morgan v. Morgan, 686 So.2d 308, 310 (Ala. Civ. App. 1996).

"A division of marital property in a divorce case does not have to be equal, only equitable, and a determination of what is equitable rests within the sound discretion of the trial court." Golden v. Golden, 681 So.2d 605, 608 (Ala. Civ. App. 1996) (citing Pride v. Pride, 631 So.2d 247 (Ala. Civ. App. 1993) ). The husband was awarded lot 7, to be sold, with an equity value of $392,000, and other assorted properties, including his separate property with a value totaling approximately $1.5 million. The wife was awarded the marital home in Daphne, to be sold, with an equity value of approximately $115,000, her retirement account worth approximately $43,000, and alimony of $5,000 per month for 60 months, followed by $2,500 per month. In considering the alimony award and property division together, we cannot say that the trial court exceeded its discretion.

The Wife's Cross-Appeal

The wife argues that "it was error for the trial court to conclude that the Ronald L. Meehan Revocable Trust was a valid trust and, therefore, the Husband's separate property" and that "this is a case of first impression in Alabama." The wife does not argue that the trust is invalid but, instead, argues that the trust should have been considered marital property, rather than separate property. This is not an issue of first impression. Pursuant to § 30-2-51(a), Ala. Code 1975,

"[i]f either spouse has no separate estate or if it is insufficient for the maintenance of a spouse, the judge, upon granting a divorce, at his or her discretion, may order to a spouse an allowance out of the estate of the other spouse, taking into consideration the value thereof and the condition of the spouse's family. Notwithstanding the foregoing, the judge may not take into consideration any property acquired prior to the marriage of the parties or by inheritance or gift unless the judge finds from the evidence that the property, or income produced by the property, has been used regularly for the common benefit of the parties during their marriage."

"The trial judge is granted broad discretion in determining whether property purchased before the parties' marriage or received by gift or inheritance was used 'regularly for the common benefit of the parties during the marriage.' " Nichols v. Nichols, 824 So.2d 797, 802 (Ala. Civ. App. 2001) (citing § 30-2-51, Ala. Code 1975 ).

The evidence indicated that the two assets remaining in the trust after the judgment included lot 8 and the long-term-care account containing approximately $255,000. The husband testified that the funds had been deposited into the long-term-care account before the parties' marriage, and the wife did not present evidence to refute the husband's testimony. The evidence also indicated that the husband had recently used funds from that account for insurance, taxes, and maintenance for lot 7 and lot 8. It was undisputed that the husband purchased lot 7 and lot 8 before the parties' marriage, and the evidence indicated that lot 8 was never used for the common benefit of the parties during the marriage.

Although, as we explained above, the trial court could consider distributions from the trust in determining the husband's ability to pay alimony, the trial court was not required to conclude that the trust was marital property even if the trial court found that trust property had been used for the common benefit of the parties during the marriage. "[W]hile the trial court may, at its discretion, award one spouse an allowance out of the other spouse's separate property, it is not compelled to do so, even if the property was used for the common benefit of the marriage." Mayhann v. Mayhann, 820 So.2d 836, 839 (Ala. Civ. App. 2001) (citing Ex parte Durbin, 818 So.2d 404, 408 (Ala. 2001) ). Accordingly, based on the deference afforded the trial court's determination, we cannot hold that the trial court exceeded its discretion in determining that the trust, containing lot 8 and the long-term-care account, was the husband's separate property.

The wife also argues that the trial court's child-support award should be reversed and the cause remanded because the record does not contain the requisite child-support-calculation forms. We note, however, that the parties filed a joint stipulation supplementing the record on appeal with the CS-42 child-support form that the trial court used in determining its child-support award. Despite the apparent absence of CS-41 forms, "this court has excused the filing of CS-41 and CS-42 forms in cases in which the evidence in the record clearly established that the child-support award complied with the child-support guidelines." Ruberti v. Ruberti, 117 So.3d 383, 386 (Ala. Civ. App. 2013). The parties discussed the computations for the CS-42 form and calculated their respective child-support obligations at the end of the trial.

The wife also argues that evidence indicated that the husband's monthly income was at least $14,800, rather than $4,800, and that the husband's basic child-support obligation should have been approximately $1,087 per month. The documentary evidence, and the husband's testimony, indicated that the husband's monthly income was approximately $4,800, which is what is reflected on the CS-42 form. The wife did not establish that the husband's income exceeded that amount. The wife further asserts that the husband's income of $4,800 per month on the CS-42 form cannot be reconciled with the alimony award of $5,000 per month. Any discrepancy in those awards, however, can be reconciled. "[T]here is no rigid standard or mathematical formula on which a trial court must base its determination of alimony and the division of marital assets." Yohey v. Yohey, 890 So.2d 160, 164 (Ala. Civ. App. 2004). As explained above, in awarding alimony, the trial court can consider the obligor's estate, ability to pay, and earning capacity in making an alimony award. Stone, 26 So.3d at 1231. In contrast, child-support obligations are governed by Rule 32, Ala. R. Jud. Admin., and application of the child-support guidelines creates a rebuttable presumption that the resulting child-support obligation is correct. Rule 32(A), Ala. R. Jud. Admin. Accordingly, the wife has failed to demonstrate a basis for reversing the trial court's judgment.

The wife's request for an award of attorney's fees on appeal is denied.

APPLICATION GRANTED; NO-OPINION ORDER OF AFFIRMANCE OF MARCH 17, 2017, WITHDRAWN; OPINION SUBSTITUTED; APPEAL-AFFIRMED; CROSS-APPEAL-AFFIRMED.

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

      The husband testified that he receives an additional monthly benefit from the Social Security Administration because he is retired and has a child under the age of 18.


author: MOORE, Judge.

text:
    L.R.S. v. M.E.J.
    2160560
    Court of Civil Appeals of Alabama.
    August 4, 2017 Rehearing Denied September 22, 2017
    Scott W. Hunter, Daphne, for appellant.
    Submitted on appellant's brief only.
    On Rehearing Ex Mero Motu
   MOORE, Judge.

This court's opinion of July 28, 2017, was withdrawn and the appeal was placed on rehearing ex mero motu by an order issued on July 28, 2017.

L.R.S. ("the mother") appeals from a judgment entered by the Mobile Juvenile Court ("the juvenile court") dismissing the petition filed by M.E.J. ("the father") seeking custody of J.J. ("the child") after the issuance of this court's opinions on original submission and on application for rehearing in a previous appeal filed by the mother. See L.R.S. v. M.J., 229 So.3d 772 (Ala. Civ. App. 2016) (" L.R.S. I"); and 229 So.3d at 777 (opinion on rehearing) (" L.R.S. II").

This case originated when the father filed a petition seeking "primary" custody of the child. In the father's petition, he alleged, among other things, that the mother "had neglected the child's educational needs, had abused drugs, and had abandoned the child on more than one occasion." L.R.S. I, 229 So.3d at 775. After a trial, the juvenile court entered a judgment declining to find the child dependent, stating that " 'the current action is an initial custody determination' " and finding "that custody should be awarded to the father based on the best interests of the child." L.R.S. I, 229 So.3d at 775. In L.R.S. I, this court reasoned:

"The assertions in the father's petition could be construed as allegations of the dependency of the child to the extent the father claimed that the mother, who was exercising sole physical and legal custody of the child at the time, see Ex parte L.E.O., 61 So.3d 1042 (Ala. 2010) (holding that, in determining dependency, juvenile court should determine whether legal custodian of child is providing adequate care), was failing to assure that the child attended school as required, see Ala. Code 1975, § 12-15-102(8) 4., had abandoned the child, see Ala. Code 1975, § 12-15-102(8) 5., and was abusing drugs, see Ala. Code 1975, § 12-15-102(8) 8. A juvenile court has exclusive original jurisdiction over petitions alleging the dependency of a child, Ala. Code 1975, § 12-15-114(a), even when the dependency petition involves a custody dispute between parents. See T.K. v. M.G., 82 So.3d 1 (Ala. Civ. App. 2011). However, in this case, the juvenile court did not find the child dependent. This court has consistently held that a juvenile court cannot use its dependency jurisdiction to dispose of the custody of a child unless the juvenile court finds the child to be dependent, see K.C.G. [v. S.J.R. ], 46 So.3d [499] at 501-02 [ (Ala. Civ. App. 2010) ] (citing, among other cases, Ex parte K.S.G., 645 So.2d 297 (Ala. Civ. App. 1992), Ex parte J.R.W., 630 So.2d 447 (Ala. Civ. App. 1992), E.H. v. N.L., 992 So.2d 740 (Ala. Civ. App. 2008), and T.B. v. T.H., 30 So.3d 429 (Ala. Civ. App. 2009) ), because a juvenile court has jurisdiction only to dismiss a dependency petition if the child at issue is not adjudicated to be dependent. See Ala. Code 1975, § 12-15-310(b). Thus, the juvenile court did not have the authority under § 12-15-114(a) to enter its judgment."

229 So.3d at 776. This court proceeded to discuss whether there were any other alternative jurisdictional bases on which the juvenile court could enter a judgment in the case; having found none, this court concluded that the juvenile court lacked subject-matter jurisdiction to enter its judgment and, therefore, that the judgment was void. L.R.S. I, --- So.3d at ----. This court dismissed the appeal with instructions to the juvenile court to set aside its void judgment. L.R.S. I, --- So.3d at ----. The father filed an application for rehearing, which prompted a second opinion from this court, see L.R.S. II, --- So.3d at ----, in which this court maintained its original disposition of the case.

After the issuance of this court's opinions, the mother filed a motion requesting from "the Presiding Judge of the Thirteenth Judicial Circuit ... an Order appointing a Circuit Judge to hear the Parties' Petitions and Motions." On March 13, 2017, the juvenile court entered an order denying the mother's motion and dismissing the father's petition; the juvenile court stated: "[A]s the Court of Civil Appeals has found no jurisdiction, and ordered the vacating of the [judgment], this Court lacks any other option [other than dismissing the petition]." The juvenile court's judgment also stated that any future custody petition should be filed in Utah, where the child currently lives.

On appeal, the mother argues that the juvenile court erred in dismissing the father's petition; instead, she argues, the juvenile court should have transferred the case to the Mobile Circuit Court. We note, however, that, in this court's opinion in L.R.S. I, we did not order the juvenile court to transfer the case to the Mobile Circuit Court. As we expressed previously, the father's petition contained allegations of dependency, which are within the exclusive jurisdiction of the juvenile court. L.R.S. I, --- So.3d at ---- (citing § 12-15-114(a), Ala. Code 1975 ). As stated in our previous opinion, once a juvenile court determines that a child is not dependent, pursuant to § 12-15-310(b), Ala. Code 1975, the only action it may take is to dismiss the case. L.R.S. I, --- So.3d at ----. Therefore, we conclude that the juvenile court complied with this court's opinion and § 12-15-310(b) by dismissing the father's petition.

The mother also argues that the juvenile court's declining to transfer the case violated her right to due process; however, the mother does not cite any authority establishing that the juvenile court's compliance with our instructions and the well-established law concerning the juvenile court's jurisdiction violates her due-process rights. Therefore, we cannot find any error on this point. See, e.g., White Sands Grp., L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1058 (Ala. 2008) ("Rule 28(a)(10)[, Ala. R. App. P.,] requires that arguments in briefs contain discussions of facts and relevant legal authorities that support the party's position. If they do not, the arguments are waived.").

The mother also argues that the juvenile court erred in concluding that Utah is the proper forum for a custody action under the Uniform Child Custody Jurisdiction and Enforcement Act, §§ 30-3B-101 et seq., Ala. Code 1975. As we previously recognized, however, the juvenile court, having declined to find the child dependent, lacked jurisdiction to take any action other than to dismiss the case. Ala. Code 1975, § 12-15-310(b). Therefore, any statement regarding the proper court in which to file a custody petition is without any legal effect, and, therefore, we will not address the mother's arguments regarding the merits of the juvenile court's statement on that point.

Conclusion

Based on the foregoing, we affirm the juvenile court's judgment dismissing the father's petition.

ON REHEARING EX MERO MOTU: AFFIRMED.

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

      The father was identified as "M.J." in the previous appeal.

      Note from the reporter of decisions: The July 28, 2017, opinion was withdrawn and the appeal placed on rehearing ex mero motu by an order issued July 28, 2017.