author: GREENLEE, J., FOR THE COURT:

text:
    Tammy ENGLISH, Appellant v. Richard D. DAVENPORT, Appellee
    NO. 2016-CA-00419-COA
    Court of Appeals of Mississippi.
    August 9, 2018
    ATTORNEYS FOR APPELLANT: B. BLAKE TELLER, GEORGE PHILIP SCHRADER IV, Vicksburg
    ATTORNEYS FOR APPELLEE: DAVID M. SESSUMS, PENNY B. LAWSON, J. MACK VARNER, Vicksburg
    BEFORE LEE, C.J., FAIR AND GREENLEE, JJ.
   GREENLEE, J., FOR THE COURT:

¶ 1. After finding that Tammy English was in contempt for failing to pay Richard Davenport lump-sum alimony, the Warren County Chancery Court ordered her to satisfy the arrearage in installments. The chancellor held that English would be incarcerated if she failed to do so. English appeals and claims the chancellor erred by (1) finding her in willful and contumacious contempt of her alimony obligation; and (2) ordering that she would be incarcerated. But it was within the chancellor's discretion to find that English failed to prove that she was unable to satisfy her lump-sum alimony obligation. And English's inability to pay as a defense to incarceration is not properly before us. Thus, we affirm the chancellor's judgment.

FACTS AND PROCEDURAL HISTORY

¶ 2. Incident to their 2012 divorce, English was ordered to pay Davenport approximately $8,400 per month in lump-sum alimony for 180 months. Davenport v. Davenport , 156 So.3d 231, 235 (¶ 11) (Miss. 2014). The award was intended to avoid dividing a number of companies that the former couple owned, including Good Samaritan Physical Therapy, Inc.

Id. at (¶ 10). English appealed, and the Mississippi Supreme Court retained the case.

¶ 3. Meanwhile, English and Davenport were in practically constant litigation related to English's lump-sum alimony obligation. English was held in contempt after she failed to make the September through November 2012 alimony payments, among other things. She apparently satisfied that contempt judgment, but she was later found in contempt again after she did not pay alimony from December 2012 through March 2013. She satisfied that judgment after she sold her home to her father.

¶ 4. Next, English failed to pay alimony from September through December 2013. English sold her lake house and became current through January 2014. However, she did not pay any alimony from January to May 2014. On May 13, 2014, the chancellor entered a judgment in Davenport's favor for more than $42,000. The chancellor held that English would be incarcerated if she did not become current on her alimony by May 30, 2014.

¶ 5. In November 2014, the supreme court affirmed the chancellor's divorce judgment. Id. at 241 (¶ 36). The supreme court also upheld the chancellor's valuation of the business, the equitable distribution of the marital property, and the lump-sum alimony award. Id. The supreme court found no merit to English's claim that she was unable to pay approximately $8,400 per month in lump-sum alimony. Id. at (¶ 35).

¶ 6. In March 2015, Davenport filed another contempt petition. At that time, English had not satisfied the previous contempt judgment, and she had failed to pay alimony from June 2014 through February 2015. English responded with an emergency motion to stay an arrest warrant and to modify her alimony obligation. She claimed she was unable to make the lump-sum alimony payments, so she should not be held in contempt. After hearing evidence over the course of three days, the chancellor found no merit to English's request to modify her alimony obligation. The chancellor also found that English was again in contempt. Consequently, the chancellor awarded Davenport a judgment for approximately $114,000. The chancellor held that English had to pay Davenport $50,000 by March 1, 2016. She then had to pay him another $50,000 on June 1, 2016. The remaining balance was due on August 1, 2016. The chancellor held that English would be incarcerated if she failed to make any of the payments. English also had to continue making alimony payments as they became due. After filing an unsuccessful motion for reconsideration, English appeals.

STANDARD OF REVIEW

¶ 7. In general, a chancellor has substantial discretion in deciding whether a party is in contempt. The chancellor, who sits in the unique position to observe the parties and their demeanor, the evidence, and the testimony, is infinitely more competent to decide contempt matters than we are. Because contempt is an issue of fact to be decided on a case-by-case basis, these matters are committed to the substantial discretion of the trial court. Therefore, [an appellate court] will not reverse a chancellor's finding where it is supported by substantial credible evidence.

Gutierrez v. Gutierrez , 233 So.3d 797, 815 (¶ 46) (Miss. 2017) (citations and internal quotation marks omitted).

DISCUSSION

I. Inability to Pay as a Contempt Defense

¶ 8. English does not dispute that Davenport adequately proved that she was in contempt. Instead, she argues that the chancellor should have found that she was unable to satisfy her alimony obligation. A defendant can rebut a prima facie contempt case related to nonpayment of alimony by proving her inability to pay. Doyle v. Doyle , 55 So.3d 1097, 1111 (¶ 46) (Miss. Ct. App. 2010). One must do so by a preponderance of the evidence and "with particularity, not just in general terms." Gutierrez , 233 So.3d at 815 (¶ 47) ; Stribling v. Stribling , 960 So.2d 556, 560 (¶ 9) (Miss. Ct. App. 2007). Thus, a defendant must prove "that [she] earned all [she] could, that [she] lived economically, and paid all surplus money above a living on the alimony decreed to [her husband]." Lane v. Lane , 850 So.2d 122, 126 (¶ 12) (Miss. Ct. App. 2002). "[T]he payment of other debts or expenses will not excuse or justify [her] default, unless such payment was necessary in order to continue [her] business or occupation, because [her husband's] right to alimony is a prior and paramount claim on [her] earnings." Id.

¶ 9. A significant portion of the contempt hearing was devoted to scrutinizing English's financial declarations and records. According to English, her net monthly income was approximately $11,600. She claimed her monthly expenses were around $10,800. That figure did not include her alimony obligation, but it also does not account for the fact that Good Samaritan reimbursed English or outright paid for many of her expenses. The chancellor could have reasonably found that English's expenses were not "necessary ... to continue [her] business" and she had not been living as economically as possible. See id. The chancellor also noted that English did not have exclusive access to her accounts. Without detailing every minute expenditure, it was within the chancellor's discretion to find that English spent lavishly on meals and several trips over the course of a year. It was not unreasonable for the chancellor to find that English's expenses were "out of control." The chancellor concluded that English "ha[d] continued to live as she always ha[d,]" "no one appear[ed] to be on any sort of budget[,]" and everyone "just spen[t] at will."

¶ 10. As mentioned above, "[a] chancellor has substantial discretion in deciding contempt matters because of the chancellor's temporal and visual proximity to the litigants." Crittenden v. Crittenden , 129 So.3d 947, 953 (¶ 18) (Miss. Ct. App. 2013) (quoting Gilliland v. Gilliland , 984 So.2d 364, 369 (¶ 19) (Miss. Ct. App. 2008) ). There was substantial credible evidence to support the chancellor's decision that English had not been living as economically as possible and contributing everything she could toward her alimony obligation. As such, we will not reverse the chancellor's judgment.

II. Inability to Pay as a Defense to Incarceration

¶ 11. On January 21, 2016, the chancellor entered her "order of contempt" and held that English must surrender herself for incarceration if she did not pay Davenport $50,000 by March 1, 2016. The chancellor entered the "final judgment on petition for contempt" after English failed to make that payment. Although there is apparently a warrant for English's arrest, the record does not indicate that English is in custody. Be that as it may, English claims that the chancellor should not incarcerate her because she cannot pay Davenport $50,000. English also claims that her incarceration would violate Article 3, Section 30 of the Mississippi Constitution, which provides that "[t]here shall be no imprisonment for debt." But our supreme court has held that the "constitutional prohibition against imprisonment for debt does not prevent a commitment to prison for nonpayment of alimony." Felder , 195 Miss. at 338, 13 So.2d at 827.

¶ 12. "Inability to pay to avoid incarceration is a continuing defense as imprisonment does not accomplish the purpose of the civil contempt decree." Vassar v. Vassar , 228 So.3d 367, 380 (¶ 48) (Miss. Ct. App. 2017) (quoting Riser v. Peterson , 566 So.2d 210, 211 (Miss. 1990) ). "[A] litigant may be incarcerated for civil contempt for failure to pay a judgment but that litigant is always entitled to offer evidence of inability to pay as a defense, not to the contempt, but to the incarceration." Id. Moreover:

the court's power to commit [someone] to jail until he complies with the decree requiring him to make monthly payments for support and maintenance depends on his then present ability to comply with the decree, and that, in determining such ability, the amount of past earnings and how they have been expended is not controlling .

Lewis v. Lewis , 213 Miss. 434, 438, 57 So.2d 163, 165 (1952) (emphasis added). So even if the contemnor's inability to pay "is due to misconduct, imprisonment cannot accomplish the purpose of the civil contempt decree, which is to compel obedience." Howard v. Howard , 913 So.2d 1030, 1039 (¶ 20) (Miss. Ct. App. 2005) (quoting Jones v. Hargrove , 516 So.2d 1354, 1358 (Miss. 1987) ).

¶ 13. Notwithstanding the foregoing, "the right to imprison [someone] until he has paid the total sum now in arrears would depend upon his ability to do so at the time he was ordered to pay the [arrearage] in order to purge himself of contempt." Lewis , 213 Miss. at 438, 57 So.2d at 165. Said differently, "[t]he trial court's power to commit [English] to jail until [s]he complies with the terms of the order depends upon [her] present ability to comply with the order at the time it is enforced." Howard , 913 So.2d at 1039 (¶ 21). "Regardless of whether [English] had the financial ability to pay the [$50,000 in January 2016], the court must, upon proper motion, revisit the issue at the time the order is executed." Id. Accordingly, English is entitled to "file a motion with the chancery court attempting to prove, with particularity, [her] present inability to pay." Id. at 1040 (¶ 21).

¶ 14. After English filed her notice of appeal, she tried to schedule a hearing on her inability-to-pay claim as a defense to incarceration in the context of an emergency motion to stay her incarceration. On April 14, 2016, the chancery court denied English's request without a hearing on the basis that it lacked jurisdiction to modify the judgment that, at that time, was pending in this appeal. English then filed an emergency petition with the supreme court to vacate the arrest warrant and stay her incarceration. In re: English , 2016-M-00418. A three-justice panel dismissed English's petition and agreed that the chancellor lacked jurisdiction to modify its contempt judgment while this appeal was pending. The panel's order seemed to suggest that the chancellor did have jurisdiction to consider English's emergency request for a stay. However, English never renewed her motion or a request for a hearing in the chancery court. Nor did she appeal the chancery court's April 14, 2016 order. Therefore, the denial of her request for a hearing is not properly before us.

CONCLUSION

¶ 15. There was substantial credible evidence to support the chancellor's decision that English failed to rebut Davenport's prima facie case of contempt. Consequently, we affirm the chancellor's "final judgment on petition for contempt."

¶ 16. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, WILSON AND WESTBROOKS, JJ., CONCUR. TINDELL, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION.

¶ 17. I concur with the majority's holding that sufficient evidence supported the chancellor's finding of contempt against English. I also concur with the majority's conclusion that English is entitled to file a motion to attempt to prove with particularity her present inability to pay to avoid incarceration. However, I believe that English should not be imprisoned for failing to pay this type of alimony. Since the Mississippi Supreme Court has never fully addressed the constitutional applicability of incarceration for default on property-division payments, this Court should do so now. Therefore, I will address English's constitutional argument.

¶ 18. Article 3, Section 30 of the Mississippi Constitution states "[t]here shall be no imprisonment for debt." These words are clear and unambiguous.

¶ 19. Mississippi caselaw has long upheld imprisonment for the nonpayment of alimony or child support because such obligations constitute a duty outside the Constitution's meaning of a debt. Felder v. Felder's Estate , 195 Miss. 326, 326, 13 So.2d 823, 827 (1943) ; Fanchier v. Gammill , 155 Miss. 316, 316, 124 So. 365, 366 (1929) ; Ex parte Bridgforth , 77 Miss. 418, 418, 27 So. 622, 622-23 (1900). In Felder , our supreme court elaborated that "alimony is not sued on as a debt ... in the ordinary sense but rather a legal means of enforcing the husband's obligation to his wife and children ...." Felder , 195 Miss. at 326, 13 So.2d at 828. The Felder court further provided that alimony "is imposed upon [the payor] by virtue of the marriage relation, for reasons of public policy, and not as a debt resulting from some business transaction or other contractual obligation." Id.

¶ 20. The precedent set by this line of cases predates the application of equitable distribution by Mississippi courts. "Alimony and equitable distribution are distinct concepts ...." Ferguson v. Ferguson , 639 So.2d 921, 929 (Miss. 1994). The doctrine of equitable distribution refers to the courts' authority to award property legally owned by one spouse to the other spouse. Id. at 927. Under the equitable-distribution system, marriage is viewed as a partnership with both spouses contributing to the marital estate in the manner they have chosen. Id.

¶ 21. With regard to the present parties, our supreme court previously recognized that the chancellor ordered English to pay Davenport lump-sum alimony, which mostly reflected Davenport's interests in the parties' businesses. Davenport v. Davenport , 156 So.3d 231, 238 (¶ 35) (Miss. 2014). At the time, Davenport had a monthly gross income of $3,107.51 and was ordered to pay $683.66 in monthly child support. Id. at 235 (¶ 11). Thus, the sums English failed to pay were not support; instead, the sums were meant to divest Davenport of the parties' businesses and assets. Under such circumstances, the payments English owed were more akin to a business debt than support for children or a destitute spouse. As such, there is simply no public-policy or moral-obligation argument that applies to exempt English from the rights she is guaranteed under Article 3, Section 30 of the Mississippi Constitution.

¶ 22. Other states have long recognized property-division obligations as a debt that falls within the meaning of their constitutional prohibitions against imprisonment and, thus, unenforceable through contempt proceedings. See Christopher H. Hall, Annotation, Divorce: Propriety of Using Contempt Proceeding to Enforce Property Settlement Award or Order , 72 A.L.R. 4th 298 § 7 (1989) (providing caselaw from multiple states that have found contempt proceedings may not be used to enforce property-settlement payments). For instance, in one Florida bankruptcy case, the court explained that "[t]he obligation to make periodic payments pursuant to a property[-]settlement agreement cannot be enforced by contempt proceedings[ ] because in such cases the parties stand as debtor and creditor." In re Wilbur , 304 B.R. 521, 526-27 (Bankr. M.D. Fla. 2003). In a Ninth Circuit case that applied Alaska caselaw, the court held property-settlement payments cannot be enforced by contempt proceedings because "[t]he provisions of a property[-]settlement agreement are governed by the law of contracts." Goggans v. Osborn , 237 F.2d 186, 189 (9th Cir. 1956). Similarly, the California Supreme Court recognized in Bradley v. Superior Court of San Francisco , 48 Cal.2d 509, 310 P.2d 634, 634 (1957), that, where property-settlement payments represent a contractual obligation between parties for an adjustment of property interests rather than "a severable provision for alimony," default cannot be enforced through contempt proceedings.

¶ 23. Because I agree with those states that view property-division payments as an obligation within the constitutional prohibitions against imprisonment for debt, I concur with the majority that English may be held in contempt for her failure to pay Davenport, but not that she may be incarcerated. The constitutional prohibition also applies equally to awards of other fees and costs not associated with the support of a spouse or children. For these reasons, I specially concur with the majority and write this separate opinion.

      This figure derived in large part from Davenport's interest in a business that the couple formed after they married. During the marriage, English and Davenport both received distributions from the business "to cover any expenses [that] were not covered by their salaries." Davenport , 156 So.3d at 234 (¶ 6). When the couple separated in 2007, the business had a net asset value of $2,520,000. Id. at 237 (¶ 18). After the separation, Davenport "no longer received distributions from" the business. Id. at 234 (¶ 6). However, English continued to receive distributions that "were later reclassified as 'loans to shareholder[.]' " Id. The distributions were reclassified as loans at the advice of an accountant so English could "avoid having to issue pro rata distributions" to Davenport. Id. at 236 (¶ 14). By the time of the divorce, the business had "loaned" English nearly $3,000,000. More than two-thirds of that figure "was expended on new business ventures, most of which were unsuccessful, leaving $723,560 being used for [English's] personal expenses." Id. at (¶ 15). By 2011, the net asset value of the business was nearly $2,700,000 - nearly all of which was in the form of "loans" that, according to testimony related to the divorce proceedings, English may never repay. Id. at 237 (¶ 18). The supreme court upheld the chancellor's valuation and equitable distribution of the business based on that calculation. Id.

      English was also held in contempt because she had not reimbursed Davenport for a tax liability that he had incurred after the business falsely reported that he had been paid taxable income. Additionally, English had not given Davenport personal property that he was awarded incident to the divorce.

      When English filed her notice of appeal, there was an outstanding warrant for her arrest because she failed to make the March 1, 2016 payment.

      On January 30, 2018, one of English's attorneys filed a suggestion of bankruptcy noting that, six days earlier and through different counsel, English had filed for Chapter 7 Bankruptcy in the United States Bankruptcy Court for the Western District of Louisiana. On January 31, 2018, counsel for both parties convened for the oral argument that had been scheduled since late November 2017. As a preliminary matter, this Court asked counsel for English whether the automatic stay set forth in 11 U.S.C. § 362 (2012) applies to this appeal. The oral argument was ultimately continued and the appeal was held in abeyance until the applicability of the stay had been resolved. On English's motion, the bankruptcy court entered an order stating that "the automatic stay has no application" to the appeal that has been assigned to this Court.

      English and Davenport have three children together. English was awarded physical custody of them. They were teenagers as of the contempt proceedings that led to this appeal. Although English employed someone who stayed with the three children after school, English testified that she and the children primarily ate at restaurants because she did not have time to buy groceries or cook. English also has three adult sons from a previous relationship. Based on the number of expenditures in Starkville, Mississippi, on the same day that there were expenditures in other parts of Mississippi and Louisiana, it was reasonable for the chancellor to conclude that at least one of English's adult sons had access to her checking account. There was also evidence that English spent thousands of dollars on a number of trips for her and the children.

      The separate opinion makes a reasonable argument that the lump-sum alimony at issue in this case is not the type of alimony that our supreme court held "is not a debt." Felder v. Felder's Estate , 195 Miss. 326, 328, 13 So.2d 823, 827 (1943) (holding that "a constitutional prohibition against imprisonment for debt does not prevent a commitment to prison for nonpayment of alimony"). The lump-sum alimony in this case "served as a means to equitably divide the marital property." Davenport , 156 So.3d at 241 (¶ 35). It was not awarded based on a "duty" of spousal or child "support." Felder , 195 Miss. at 328, 13 So.2d at 827. Arguably, this sort of alimony is a "debt," and our Constitution makes clear that "[t]here shall be no imprisonment for debt." Miss. Const. art. 3, § 30 ; see Deborah H. Bell, Mississippi Family Law § 14.06[6][b], at 497-98 (2d ed. 2011) (stating that "imprisonment for nonpayment of alimony and child support does not contravene the constitutional prohibition," but "an argument can be made that property division is distinguishable from support payments"). However, English did not raise this issue in the chancery court, and on appeal she cites the constitutional provision only in passing. English has never made the constitutional argument now made by the separate opinion. "[The supreme c]ourt has ... consistently held that errors raised for the first time on appeal will not be considered, especially where constitutional questions are concerned." Ellis v. Ellis , 651 So.2d 1068, 1073 (Miss. 1995). English may raise this issue in any future proceedings in the chancery court, but the issue is not before this Court in this appeal.

      The chancellor ordered English to pay $1,515,914.33 in lump-sum alimony in 180 monthly installments of $8,421.75. Davenport , 156 So.3d at 235 (¶ 11). Of the total lump-sum alimony awarded, $1,179,380.89 was attributable to business assets. Id.


source: Caselaw Access Project

author: MURDOCK, Justice.

license: Public Domain

text:
    Douglas GHEE, as personal representative of the Estate of Billy Fleming, deceased v. USABLE MUTUAL INSURANCE COMPANY d/b/a Blue Advantage Administrators of Arkansas
    1160082
    Supreme Court of Alabama.
    October 27, 2017
    Richard Riley and Rip Andrews of Marsh, Rickard & Bryan, P.C., Birmingham, for appellant.
    Cavender C. Kimble and Jeremiah M. Glassford of Balch & Bingham LLP, Birmingham, for appellee.
   MURDOCK, Justice.

Douglas Ghee, as personal representative of the estate of Billy Fleming, deceased, appeals from an order of the Calhoun Circuit Court dismissing his wrongful-death claim against USAble Mutual Insurance Company d/b/a Blue Advantage Administrators of Arkansas ("Blue Advantage"). We dismiss this appeal as being from a nonfinal order.

I. Facts

Blue Advantage was the claims administrator for Fleming's self-funded employee-health-benefits plan, which Fleming received through his employment with Wal-Mart Stores, Inc. There is no dispute that the health-benefits plan falls under the auspices of the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq. That plan will be referred to hereinafter as "the ERISA plan."

Ghee filed a complaint in the Calhoun Circuit Court alleging a wrongful-death claim against Blue Advantage, among others, based on Fleming's death. The circuit court granted Blue Advantage's Rule 12(b)(6), Ala. R. Civ. P., motion to dismiss Ghee's complaint against it based on federal preemption under ERISA, specifically based on 29 U.S.C. § 1144(a). The allegations in Ghee's complaint were pivotal to this determination; therefore, it is best to relay the facts exactly as alleged in the complaint:

"18. On June 11, 2013, [Fleming] presented to the [Northeast Alabama] RMC [Regional Medical Center] emergency department. According to records, he was complaining of constipation and abdominal pain that he rated as a 10 on a 10-point scale.
"19. [Fleming] was diagnosed with abdominal pain with constipation and fecal impaction.
"20. [Fleming] was admitted to the hospital.
"21. On June 12, 2013, a CT of [Fleming's] abdomen showed, according to a written report, a moderate amount of fecal material within [Fleming's] sigmoid colon and rectum.
"22. On June 14, 2013, Dr. Rosen attempted to perform a colonoscopy on [Fleming], but according to Dr. Rosen's notes, he was unable to pass the scope beyond 30 centimeters, and stated that, '[g]iven the marked severity of constipation, the inadequate colon prep despite multiple colon preparations, the patient would benefit [from] subtotal colectomy.'[ ]
"23. On June 15, 2013, Dr. Crawford was consulted, and according to his notes, agreed that [Fleming] required a colectomy and scheduled the procedure for two weeks later as an outpatient procedure in order to give [Fleming's] colon an opportunity to flatten out.
"24. [Fleming] was discharged home from RMC on June 17, 2013.
"25. On July 2, 2013, [Fleming] visited Dr. Crawford as a followup at the Crawford Clinic and was scheduled to undergo his colectomy on July 10, 2013.
"26. Dr. Crawford and/or the Crawford Clinic, according to its records, sought pre-approval for the surgery from [Blue Advantage] via CPT code 564.9, which is unspecified functional disorder of intestine.[ ]
"27. On July 3, 2013, [Fleming] presented to RMC for his pre-anesthetic evaluation.
"28. On or about July 5, 2013, an agent of the Crawford Clinic called [Fleming] and informed him that he could not have the surgery because [Blue Advantage] had decided that a lower quality of care-continued non-surgical management-was more appropriate than the higher quality of care-surgery-that [Fleming] needed and that his surgeon felt was appropriate.
"29. [Fleming] and his family then had multiple conversations with agents of [Blue Advantage] in an unsuccessful attempt to convince the company that the higher quality of care (surgery, as recommended by [Fleming's] doctors) was the more appropriate course. Ultimately, an agent of [Blue Advantage] suggested to [Fleming] that he return to RMC in an attempt to convince hospital personnel and physicians to perform the surgery on an emergency basis.
"30. On the night of July 10, 2013 (after midnight so that the hospital records indicate a visit of July 11), [Fleming] returned to the RMC emergency department. According to records, he was complaining of severe abdominal pain.
"31. [Fleming] explained his history involving his prior admission and canceled surgery.
"32. A CT of [Fleming]'s abdomen showed, according to a written report, a moderate amount of retained stool throughout [Fleming's] colon.
"33. [Fleming] was seen and discharged that day (7/11/13) by Dr. Williams, D.O.
"34. On July 14, 2013, [Fleming] returned to the RMC emergency department and according to the records, complaining of severe abdominal pain and rectal bleeding.
"35. [Fleming] again reported his history involving his prior admission and canceled surgery.
"36. No diagnostic imaging was performed during this visit (7/14/13).
"37. [Fleming] was seen and discharged that day (7/14/13) by Summer Phelps, N.P., and Dr. Proctor.
"38. On July 15, 2013, [Fleming] was brought back to the RMC emergency department by Oxford EMS, and according to records, complaining of urinary retention, severe abdominal pain and constipation.
"39. [Fleming] again reported his history involving his prior admission and canceled surgery.
"40. Again, [Fleming] was seen and sent home, this time by Dr. Simmons.
"41. During this entire time, [Blue Advantage] was providing for a certain level of care to be provided to [Fleming]: non-surgical management of his life-threatening bowel obstruction. However, [Blue Advantage] never agreed to provide him with the higher quality of care he needed: life-saving surgical intervention.
"42. At approximately 10:30 a.m., [Fleming] was brought by Anniston EMS to Stringfellow Memorial Hospital in severe distress.
"43. [Fleming's] condition declined rapidly, he had to be intubated, eventually coded and died after midnight that night (the night of 7/15/13, the morning of 7/16/13).
"44. Dr. Thomas Garland performed an autopsy, which confirmed that [Fleming] had a perforated sigmoid colon with abundant fecal material identified within the peritoneal cavity.
"45. Dr. Crawford attended at least a portion of the autopsy.
"46. Dr. Vishwanath M. Reddy certified [Fleming's] death certificate listing the cause of death as follows: septic shock due to peritonitis due to colonic perforation."

On July 14, 2015, Ghee, as personal representative of Fleming's estate, filed a wrongful-death action in the Calhoun Circuit Court against Blue Advantage, Northeast Alabama Regional Medical Center, the Crawford Clinic, four doctors, and a nurse, asserting that their combined and concurring negligence and wrongful conduct proximately caused Fleming's death. Specifically with respect to Blue Advantage, Ghee alleged that it contributed to Fleming's death through the following actions:

"68. [Blue Advantage] had or voluntarily assumed one or more of the following duties, jointly or in the alternative: a duty to act with reasonable care in the determining the quality of healthcare [Fleming] would receive; a duty not to provide to [Fleming] a quality of healthcare so low that it knew that [Fleming] was likely to be injured or killed; and a duty to exercise such reasonable care, skill, and diligence as other similarly situated healthcare providers in the same general line of practice ordinarily have and exercise in a like case.
"69. [Blue Advantage] breached those duties, jointly or in the alternative, as follows:
"a. Negligently providing for a lower quality of healthcare for [Fleming];
"b. Wantonly providing for a lower quality of healthcare for [Fleming];
"c. Breaching the standard by (i) failing to provide a higher quality of healthcare to [Fleming] (necessary, life saving surgery) and (ii) failing to communicate adequately with [Fleming]'s healthcare providers his need for surgery.
"70. Those breaches combined with the actions of other defendants as a legal cause of death for ... Fleming, in that without the breaches, [Fleming] would have more likely than not survived.
"71. Per Dukes v. US Healthcare, Inc., 57 F.3d 350 (3d Cir. 1995), Ghee makes no complaint that benefits were denied to [Fleming]; indeed, [Blue Advantage] provided multiple, numerous and repeated benefits (a high quantity) to [Fleming] in an attempt to manage his bowel obstruction without surgery. Ghee's only complaint against [Blue Advantage], as detailed above, involves the quality of the benefit received, specifically that it was of such a low quality (did not include necessary surgery) that it caused [Fleming]'s death. Further, considering [Fleming] is deceased, he necessarily cannot attempt to force [Blue Advantage] to provide any benefits to him. He is dead. Because of this indisputable reality, Ghee does not seek any benefits or even compensatory damages (state law does not allow for such damages) but instead only the wrongful death, punitive damages allowed by Alabama state law."

On August 20, 2015, Blue Advantage removed the case to the United States District Court for the Northern District of Alabama on the basis of complete preemption under ERISA, specifically under 29 U.S.C. § 1132. On August 27, 2015, Blue Advantage filed a motion in the circuit court to dismiss the claim against it based on federal preemption. On September 9, 2015, Ghee filed a motion to stay all proceedings in federal court until the federal district court had ruled on the issue of subject-matter jurisdiction. The federal district court granted that motion the following day. On September 21, 2015, Ghee filed a motion to remand the case to the circuit court on the ground that the claims were not completely preempted by ERISA.

On December 2, 2015, the federal district court entered an order remanding the case to the circuit court. In its order, the federal district court explained that complete preemption did not apply because Ghee was not seeking benefits under the ERISA plan but, rather, was seeking only punitive damages under Alabama's "unique" wrongful-death statute. The federal district court noted that "[b]ecause the Alabama wrongful death statute does not allow recovery for the value of benefits denied, only punishment for causing a death, the suit could not be brought under the ERISA private enforcement action." Ghee v. Regional Med. Ctr. Bd., No. 1:15-CV-1430-VEH, Dec. 2, 2015 (N.D. Ala. 2015) (not reported in F. Supp. 3d).

On December 29, 2015, Blue Advantage filed a motion to dismiss based on the affirmative defense of ordinary, or defensive, ERISA preemption, specifically under 29 U.S.C. § 1144(a). Blue Advantage argued that Ghee's wrongful-death action "relates to" Blue Advantage's administration of the ERISA plan's benefits and that, therefore, the claims asserted therein were preempted. Specifically, it explained that "without ... Blue Advantage's coverage determination, Ghee would have no basis to allege that Blue Advantage failed to provide Fleming with the appropriate quality of care." Blue Advantage attached the ERISA plan to its motion to dismiss, noting that Ghee had referenced the plan in his complaint.

On March 1, 2016, Ghee filed a response in opposition to Blue Advantage's motion to dismiss. Ghee contended that he was not relying on Blue Advantage's administration of the ERISA plan but, rather, was asserting a claim based on Blue Advantage's intervening in Fleming's health-care treatment and mandating the treatment he must receive, which treatment, Ghee asserts, led to his death.

On October 4, 2016, the circuit court entered an order granting Blue Advantage's Rule 12(b)(6), Ala. R. Civ. P., motion to dismiss on the basis of defensive preemption. In the order, the circuit court also certified the order as final under Rule 54(b), Ala. R. Civ. P., because, it reasoned, Blue Advantage's preemption defense did not apply to any of the other defendants and the ruling did not affect Ghee's claims against the other defendants. The order further stated: "[Ghee] is granted leave to file an amended complaint within 30 days of the date of this order, should he choose to do so, to pursue any relief to which he may believe himself entitled under ERISA."

On October 26, before the 30-day window to amend his complaint had run, Ghee filed a notice of appeal to this Court.

II. Analysis

Although neither party argues on appeal that the circuit court's certification of its October 4, 2016, order as final under Rule 54(b) was inappropriate, if it was not appropriate, then this Court's jurisdiction is implicated. "[J]urisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu." Nunn v. Baker, 518 So.2d 711, 712 (Ala. 1987). See also, e.g., Fuller v. Birmingham-Jefferson Cty. Transit Auth., 147 So.3d 907, 911 (Ala. 2013) (affirming the authority of an appellate court to take notice of "jurisdictional matters, such as whether an order is final so as to support an appeal").

Rule 54(b) provides, in part:

"When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment."

This Court has stated:

" 'The purpose of Rule 54(b)... is to make final "an order which does not adjudicate the entire case but as to which there is no just reason for delay in the attachment of finality." ' Ex parte James, 836 So.2d 813, 852 (Ala. 2002) (Moore, C.J., concurring in the result in part and dissenting in part) (quoting Foster v. Greer & Sons, Inc., 446 So.2d 605, 609 (Ala. 1984), overruled on other grounds, Ex parte Andrews, 520 So.2d 507 (Ala. 1987) ). However, ' "[n]ot every order has the requisite element of finality that can trigger the operation of Rule 54(b)." ' Dzwonkowski[ v. Sonitrol of Mobile, Inc.,] 892 So.2d [354,] 361 [ (Ala. 2004) ] (quoting Goldome Credit Corp. v. Player, 869 So.2d 1146, 1147 (Ala. Civ. App. 2003) (emphasis omitted)).
" ' " Rule 54(b) certifications 'should be made only in exceptional cases.' " ' Posey v. Mollohan, 991 So.2d 253, 258-59 (Ala. Civ. App. 2008) (quoting Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 212 (Ala. Civ. App. 1997) )."

Stephens v. Fines Recycling, Inc., 84 So.3d 867, 874-75 (Ala. 2011). More specifically, a Rule 54(b) certification "must fully adjudicate at least one claim":

" '[F]or a Rule 54(b) certification of finality to be effective, it must fully adjudicate at least one claim or fully dispose of the claims as they relate to at least one party.' Haynes v. Alfa Fin. Corp., 730 So.2d 178, 181 (Ala. 1999).
" 'If an order does not completely dispose of or fully adjudicate at least one claim, a court's Rule 54(b) certification of the order is not effective. See Haynes v. Alfa Fin. Corp., 730 So.2d 178 (Ala. 1999). Damages are only one portion of a claim to vindicate a legal right, even though the damages claimed may consist of several elements. See id. at 181. An order is not final if it permits a party to return to court and prove more damages or if it leaves open the question of additional recovery. See Precision American Corp. v. Leasing Serv. Corp., 505 So.2d 380, 382 (Ala. 1987).'
" Grantham v. Vanderzyl, 802 So.2d 1077, 1080 (Ala. 2001)."

Certain Underwriters at Lloyd's, London v. Southern Nat. Gas Co., 939 So.2d 21, 28 (Ala. 2006) (emphasis omitted).

A "claim" for purposes of Rule 54(b) is not a separate "count" or legal theory set out in a complaint; it essentially is the cause of action from which the plaintiff's theories of recovery emerge.

"The Scrushy [v. Tucker, 955 So.2d 988 (Ala. 2006),] Court quoted with approval the United States Court of Appeals for the Seventh Circuit for ' "certain rules of thumb to identify those types of claims that can never be considered separate" ' for purposes of Rule 54(b). 955 So.2d at 998 (quoting Stearns v. Consolidated Mgmt., Inc., 747 F.2d 1105, 1108 (7th Cir. 1984) ). One such rule is that ' " 'claims cannot be separate unless separate recovery is possible on each.... Hence, mere variations of legal theory do not constitute separate claims.' " ' Id. (quoting Stearns, 747 F.2d at 1108-09, quoting in turn Amalgamated Meat Cutters v. Thompson Farms Co., 642 F.2d 1065, 1071 (7th Cir. 1981) ). The Scrushy Court also noted the similar rule of the United States Court of Appeals for the Second Circuit, see Rieser v. Baltimore & Ohio R.R., 224 F.2d 198, 199 (2d Cir. 1955), which was summarized by the commentators of Federal Practice and Procedure:
" ' "A single claimant presents multiple claims for relief under the Second Circuit's formulation when the possible recoveries are more than one in number and not mutually exclusive or, stated another way, when the facts give rise to more than one legal right or cause of action.... However, when a claimant presents a number of legal theories, but will be permitted to recover only on one of them, the bases for recovery are mutually exclusive, or simply presented in the alternative, and plaintiff has only a single claim for relief for purposes of Rule 54(b)." '
" 955 So.2d at 998 (quoting 10 Charles Alan Wright et al., Federal Practice & Procedure § 2657 (3d ed. 1998) (footnotes omitted))."

North Alabama Elec. Coop. v. New Hope Tel. Coop., 7 So.3d 342, 345 (Ala. 2008) (emphasis added). We also have stated:

"Neither federal nor state courts have been able to settle on a single test to determine when claims are separate or exactly what constitutes a claim. See, Tolson [v. United States ], 732 F.2d [998,] at 1001 [ (D.C. Cir. 1984) ] ; Cates v. Bush, 293 Ala. 535, 307 So.2d 6 (1975). However, authorities have stated that 'when plaintiff is suing to vindicate one legal right and alleges several elements of damage, only one claim is presented and subdivision (b) [of rule 54 ] does not apply.' 10 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure: Civil 2d, § 2657, at 69-71 (1983); Landry v. G.B.A., 762 F.2d 462, 464 (5th Cir. 1985)."

Precision American Corp. v. Leasing Serv. Corp., 505 So.2d 380, 381 (Ala. 1987) (emphasis added).

In this case, the circuit court purported to adjudicate Ghee's claim stemming from Blue Advantage's failure to approve a colectomy as treatment for Fleming's problem, but in so doing it entered an order that expressly allows Ghee to amend his complaint "within 30 days of the date of this order, should he choose to do so, to pursue any relief to which he may believe he is entitled under ERISA." Any claim for relief Ghee may state under ERISA would stem from the same conduct on the part of Blue Advantage that gave rise to Ghee's state-law claim. In other words, in the same order in which the circuit court purported to fully adjudicate Ghee's "claim," or cause of action, against Blue Advantage, it left open the possibility that Ghee could reframe and reassert that cause under another legal theory.

Such an order is not proper for Rule 54(b) certification. To permit a trial court to adjudicate a claim as pleaded by the plaintiff, while simultaneously permitting the plaintiff to amend his or her complaint in an effort to assert a different theory to vindicate the same right, would entirely undermine the purpose of Rule 54(b). Rule 54(b) exists because " ' " ' "[a]ppellate review in a piecemeal fashion is not favored." ' " ' " Schlarb v. Lee, 955 So.2d 418, 419 (Ala. 2006) (quoting Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So.2d 354, 363 (Ala. 2004), quoting in turn Goldome Credit Corp. v. Player, 869 So.2d 1146, 1148 (Ala. Civ. App. 2003), quoting in turn other cases (emphasis omitted)). Concomitantly, as noted, " ' " '[c]ertifications under Rule 54(b) should be entered only in exceptional cases and should not be entered routinely.' " ' " Id. (quoting Dzwonkowski, 892 So.2d at 363, quoting in turn State v. Lawhorn, 830 So.2d 720, 725 (Ala. 2002), quoting in turn Baker v. Bennett, 644 So.2d 901, 903 (Ala. 1994) ).

It is true that in his reply brief Ghee disavows having an ERISA claim stemming from the same conduct on which Ghee based his state-law claim. But nothing bars Ghee from changing his position and asserting such a claim on remand once this Court has addressed the present appeal. And the circuit court has expressly held open the record so as to make that possible. The circuit court cannot purport to enter a final adjudication of a claim while making it possible for the plaintiff to revive that very claim. Accordingly, the circuit court did not render a proper Rule 54(b) certification, and we do not have before us a final judgment.

Because the appeal before us is not from a final judgment, it is dismissed.

APPEAL DISMISSED.

Stuart, C.J., and Bolin, Main, and Bryan, JJ., concur.

      A colectomy is a surgery that involves removal of all or part of the colon.

      In its brief, Blue Advantage states: "This is a misnomer in the complaint. It should read 'ICD9 code 564.9.' CPT codes refer to procedures (the colectomy ). ICD9 codes refer to diagnosis (Fleming's unspecified functional disorder of intestine )."

      Blue Advantage could not appeal this decision because federal law prohibits review of a federal district court's remand, following a removal, that is based on subject-matter jurisdiction. See 28 U.S.C. § 1447(c) & (d); In re Loudermilch, 158 F.3d 1143, 1145 (11th Cir. 1998) ("[I]f the district court remands a case based on reasons set forth in section 1447(c), no review may be had: whether the district court's decision was correct or not makes no difference.").

      As noted, Ghee appealed the circuit court's order within 30 days of the date of the order, leaving open the possibility that Ghee could amend his complaint following our disposition of this appeal.


author: MOORE, Judge.

text:
    Lee Ladd Corrigan YOUNG v. Richard E. CORRIGAN
    Lee Ladd Corrigan Young v. Richard E. Corrigan
    2160325 2160326
    Court of Civil Appeals of Alabama.
    October 20, 2017
    Thomas H. Nolan, Jr., Mobile, for appellant.
    Joseph C. Sullivan, Jr., of Hamilton, Butler, Riddick, Tarlton & Sullivan, P.C., Mobile, for appellee.
   MOORE, Judge.

Lee Ladd Corrigan Young ("the mother") appeals from separate, but almost identical, judgments entered by the Mobile Circuit Court ("the trial court") in postdivorce contempt and modification proceedings between the mother and Richard E. Corrigan ("the father"). We affirm the judgments in part and reverse the judgments in part.

Procedural History

On December 17, 2008, the parties were divorced by a judgment entered by the trial court. That judgment, among other things, awarded the parties joint legal custody of their child; awarded the mother "primary" physical custody of the child; awarded the father visitation with the child every other weekend, on Wednesday of every week, for one month during the summer, every Father's Day, on the father's birthday, and on alternating holidays; ordered the father to pay child support for the child; ordered the father to "provide major medical insurance for the ... child"; ordered the parties to "equally divide all uninsured medical and dental expenses not otherwise covered by insurance after deductibles and co-pays are met by [the mother]"; and ordered the parties to "equally divide the costs of the attendance of the ... child ... at UMS-Wright Preparatory School." The father was also awarded the "first right of refusal to have the minor child of the parties stay with him in the event [the] Mother has the need for a babysitter."

On May 30, 2014, the father filed a petition for a rule nisi, alleging that the mother had failed to allow the child to visit him on his birthday and had failed to offer him the right of first refusal when she needed a babysitter for the child; that case was assigned case no. DR-06-501848.03. On June 10, 2014, the mother filed an answer. On July 21, 2014, the father filed a motion seeking to enforce his summer-visitation rights; he also requested sanctions for the mother's failure to allow him to exercise his summer visitation with the child. The father filed an amended petition for a rule nisi on July 22, 2014.

On January 14, 2015, the mother filed a petition requesting that the trial court hold the father in contempt for his failure to pay child support; she also requested both a suspension and a decrease of the father's visitation. That case was assigned case no. DR-06-501848.04. On June 26, 2015, the father filed in case no. DR-06-501848.03 another amended petition for a rule nisi, alleging that the mother had continued to interfere with his visitation. On that same date, the trial court entered orders in both cases appointing a guardian ad litem to represent the interests of the child. On August 14, 2015, the mother filed in case no. DR-06-501848.04 an amended petition seeking to hold the father in contempt and to modify the father's child-support obligation.

On March 14, 2016, the trial court entered an order, based upon an agreement of the parties, stating that a "visitation evaluation" would be conducted on the parties with the father paying the costs of the evaluation.

After a trial, the trial court entered, on November 2, 2016, separate, but almost identical, judgments finding the mother in contempt of court for allowing the child "to make her own decisions as to visitation with the [father]"; providing that the mother could purge herself of contempt by ensuring that the father receive "rehabilitative visitation, commencing November 4, 2016 throughout that weekend" and, "[t]hereafter, every weekend until January 6, 2017"; finding the father in contempt of court "for his willful failure to pay child support and tuition" for the child; modifying the father's monthly child-support obligation to $896.60 in compliance with Rule 32, Ala. R. Jud. Admin.; ordering the mother and the father to "confer so that major decisions affecting the welfare of the child shall be determined jointly[, including,] but not limited to, [decisions regarding] education, discipline, religion, medical, and the general upbringing of the child"; ordering the mother and the father to "divide their custodial periods of time on a weekly basis, with the exchange occurring on Fridays afer school, or at 6:00 p.m. if there is no school on any given Friday"; ordering the mother to pay "$5,800.00 for ... reasonable attorney's fees and $3,700.00 for counseling fees"; ordering the parties to "maintain health insurance on the minor child in the same manner in which it currently exists"; and ordering the mother and the father to each "pay one-half of said insurance premium expense monthly and [to] pay one-half of all uninsured and/or unreimbursed medical, dental, pharmaceutical, psychological, psychiatric, optical or orthodontic expenses of the ... child, including copayments."

On November 3, 2016, the guardian ad litem for the child filed a postjudgment motion. On December 1, 2016, the mother filed a postjudgment motion. On January 27, 2017, the trial court amended the judgments regarding matters not pertinent to these appeals. On February 10, 2017, the mother filed her notices of appeal.

Discussion

I. Due-Process Issues

On appeal, the mother first argues that the trial court's judgments are void because, she says, the trial court failed to afford her due process to the extent that the judgments modify portions of the divorce judgment by providing for the payment of health-insurance costs, by ordering her to pay counselor fees, and by modifying the legal and physical custody of the child when there were no claims pending requesting such relief.

" ' "A judgment is void only if the court which rendered it [1] lacked jurisdiction of the subject matter, or [2] of the parties, or [3] if it acted in a manner inconsistent with due process." ' Neal v. Neal, 856 So.2d 766, 781 (Ala. 2002) (quoting Seventh Wonder v. Southbound Records, Inc., 364 So.2d 1173, 1174 (Ala. 1978) ). See also Smith v. Clark, 468 So.2d 138, 141 (Ala. 1985) ; Cassioppi v. Damico, 536 So.2d 938, 940 (Ala. 1988) ; Pollard v. Etowah County Comm'n, 539 So.2d 225, 228 (Ala. 1989) ; Satterfield v. Winston Indus., Inc., 553 So.2d 61, 64 (Ala. 1989) ; Fisher v. Amaraneni, 565 So.2d 84, 87 (Ala. 1990) ; Hughes v. Cox, 601 So.2d 465, 467-68 (Ala. 1992) ; Greene v. Connelly, 628 So.2d 346, 351 (Ala. 1993) ; and Rule 60(b)(4), Ala. R. Civ. P.
" ' "[I]t is established by the decisions in this and in Federal jurisdictions that due process of law means notice, a hearing according to that notice, and a judgment entered in accordance with such notice and hearing."
" ' Frahn v. Greyling Realization Corp., 239 Ala. 580, 583, 195 So. 758, 761 (1940) (emphasis added).' "

M.H. v. Jer. W., 51 So.3d 334, 337 (Ala. Civ. App. 2010) (quoting Neal v. Neal, 856 So.2d 766, 781-82 (Ala. 2002) ).

"In Carden v. Penney, 362 So.2d 266 (Ala. Civ. App. 1978), this court explained that Rule 54(c), Ala. R. Civ. P., authorizes a trial court to grant to a party the relief to which that party is entitled 'irrespective of the request for relief contained in the pleadings.' 362 So.2d at 268.
" 'However, Rule 54(c) does not sanction the granting of relief not requested in the pleadings where it appears that a party's failure to ask for particular relief has substantially prejudiced the opposing party. Albe[ ]marle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975) ; Rental Development Corporation of America v. Lavery, 304 F.2d 839 (9th Cir. 1962) ; Penney v. Carden, [356 So.2d 1188 (Ala. 1978) ]. Moreover, if the relief granted pursuant to Rule 54(c) is not justified by the proof or is justified by proof which the opposing party has not had an opportunity to challenge, the relief granted should not be sustained on appeal. See 10 Wright & Miller[,] Federal Practice and Procedure § 2662 (1973). Accordingly, logic dictates that in those situations where an opposing party has no notice, by pleadings or otherwise, regarding the claim upon which relief is granted by means of Rule 54(c) and is thereby denied an opportunity to have challenged or defended against such a claim, the opposing party has suffered substantial prejudice and the judgment granting relief must be reversed. See United States v. Hardy, 368 F.2d 191 (10th Cir. 1966). Indeed, such a rule is fundamental to the essentials of due process and fair play. Sylvan Beach, Inc. v. Koch, 140 F.2d 852 (8th Cir. 1944).'
" 362 So.2d at 268-69."

Myers v. Myers, 206 So.3d 649, 651-52 (Ala. Civ. App. 2016).

A. Health-Insurance Costs

With regard to the mother's challenge to the trial court's modifying the divorce judgment to provide for the payment of health-insurance costs, we note that the mother failed to make this argument to the trial court. "Unless there is an absence of jurisdiction over the subject matter, appellate courts will not consider constitutional challenges which were not presented to the trial court." Tucker v. State, 445 So.2d 311, 314 (Ala. Civ. App. 1984). See also Austin v. Austin, 159 So.3d 753, 759-60 (Ala. Civ. App. 2013) (holding that issue whether notice was afforded in accordance with due process must be preserved). Accordingly, we do not consider this argument.

B. Counselor Fees

With regard to the provisions of the judgments requiring the mother to pay the counselor's fees, we note that the father testified at the trial that he was requesting that the mother reimburse him for his payment of the counselor's fees. The mother did not object to the father's testimony on the basis that that issue had not been pleaded. When an issue is "raised at trial without objection, ... it [is] tried by the implied consent of the parties." S.A.M. v. M.H.W., 227 So.3d 1232, 1233 (Ala. Civ. App. 2017). Rule 15(b), Ala. R. Civ. P., provides that, "[w]hen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings." Because the mother failed to object to the father's testimony indicating that he was requesting that the mother be ordered to reimburse him for the counselor's fees he had paid, we conclude that the mother's argument on this point is without merit. We note that the mother also argues that the trial court was barred by the equitable doctrine of estoppel from ordering her to pay the counselor's fees and that the fee award was inequitable; however, those arguments were not preserved for review in the trial court, and we therefore decline to address them. Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala. 1992) ("This Court cannot consider arguments raised for the first time on appeal; rather, our review is restricted to the evidence and arguments considered by the trial court.").

C. Custody

The mother also argues that the trial court erred by modifying the legal and physical custody of the child. The divorce judgment awarded the parties joint legal custody of the child and awarded the mother "primary" physical custody.

"[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).

With regard to legal custody, both the divorce judgment and the judgments at issue in these appeals award the mother and the father joint legal custody of the child. See Ala. Code 1975, 30-3-151(2) (defining "joint legal custody" as "[b]oth parents hav[ing] equal rights and responsibilities for major decisions concerning the child, including, but not limited to, the education of the child, health care, and religious training"). Thus, we find no error with regard to the trial court's award of joint legal custody.

With regard to the award of joint physical custody, we note that the divorce judgment awarded the mother sole physical custody of the child and awarded the father certain specified visitation. The judgments at issue in these appeals, however, order the parties "to divide their custodial periods of time on a weekly basis, with the exchange occurring on Fridays afer school, or at 6:00 p.m. if there is no school on any given Friday." As the mother points out, there was no request for a modification of custody pleaded by either party.

" Rule 15(b), Ala. R. Civ. P., provides a trial court with the authority to amend the pleadings to conform to the evidence when the parties impliedly consent to litigate an issue. However, if the evidence purportedly related to an unpleaded claim overlaps with, or actually relates solely to, a pleaded claim, introduction of that evidence will not imply the consent necessary to allow amendment of the pleadings under Rule 15(b). See CVS/Caremark Corp. v. Washington, 121 So.3d 391, 398-99 (Ala. Civ. App. 2013)."

Myers, 206 So.3d at 653.

In the present cases, although evidence regarding the child's custody was introduced, that evidence also related to other issues that were properly pleaded and were before the trial court. Thus, we cannot conclude that the issue of a modification of the physical custody of the child was tried by implied consent. Because the mother did not have notice of or an opportunity to be heard concerning a modification of the physical custody of the child, we conclude that her rights to due process were violated. M.H., 51 So.3d at 337 ; Myers, 206 So.3d at 651-52. Therefore, we reverse the trial court's judgments to the extent that they modify the physical custody of the child. We further note that a "modification of custody is not the proper remedy for a visitation dispute." Cochran v. Cochran, 5 So.3d 1220, 1228 (Ala. 2008).

II. Contempt

The mother next argues that the trial court erred in holding her in contempt of court because, she says, the child decided on her own not to visit the father.

" 'Absent an abuse of discretion, or unless the judgment of the trial court is unsupported by the evidence so as to be plainly and palpably wrong, the determination of whether a party is in contempt is within the sound discretion of the trial court.' Shonkwiler v. Kriska, 780 So.2d 703, 706 (Ala. Civ. App. 2000) (citing Shellhouse v. Bentley, 690 So.2d 401 (Ala. Civ. App. 1997) )."

Carnes v. Carnes, 82 So.3d 704, 715 (Ala. Civ. App. 2011).

Although there are several cases in which this court has held that a custodial parent should not be held in contempt for a child's refusal to visit his or her noncustodial parent, see, e.g., Ezell v. Graham, 135 So.3d 979 (Ala. Civ. App. 2013), Shellhouse v. Bentley, 690 So.2d 401 (Ala. Civ. App. 1997), and Stringfellow v. Stringfellow, 553 So.2d 1161 (Ala. Civ. App. 1989),

"[i]n some instances the custodial parent, in defiance of court-granted visitation rights, uses his or her position to alienate the other parent from the affections of the child, or to create fear of the non-custodial parent in a child, or by his or her words or actions actually encourages a child not to visit with the other parent."

Hagler v. Hagler, 460 So.2d 187, 189 (Ala. Civ. App. 1984).

In the present case, the evidence indicated that, when the child was 12 years old, she became angry because the father had had multiple girlfriends present at various times during her visitations with him. At a later date, the mother drove the child to the father's house so that the child could discuss her feelings with the father. The discussion escalated and ultimately resulted in the mother, the father, and the child fighting over some of the child's personal belongings. The mother testified that the father had threatened to hit the mother. After that incident, the child had visited with the father only twice and had then stopped visiting altogether. She had not visited the father in the two years preceding the trial.

The child testified that the mother had told her that it was her decision whether to visit the father, and, she said, she does not want to visit him. The mother testified that she had highly encouraged the child to visit. The father testified that the mother had told him that, because the child was 12 years old, it was the child's decision whether she wanted to visit with the father. He further testified that the mother had told him that the child would go into a rage if she tried to force her to visit. According to the father, the mother had told him that the child needed to spend time with her friends instead of visiting the father.

Catalina Arata, a counselor who evaluated the parties and the child, reported that the mother had told the child that the father had cheated on the mother during their marriage and that the mother had allowed the child to view the private investigator's report from the divorce proceedings. Dr. Arata reported that the father's having the child around several different girlfriends was an exercise of poor judgment but that that should not have caused such an extreme reaction from the child. According to Dr. Arata, the mother's telling the child that the father had cheated on the mother during their marriage had contributed to the alienation of the child from the father.

Because one view of the evidence indicates that the mother's conduct had contributed to the child's alienation from the father, in turn causing an interference with his visitation, we cannot conclude that the trial court exceeded its discretion in finding the mother in contempt. Sullivan v. Sullivan, 211 So.3d 836, 839 (Ala.Civ.App. 2016) ; Carnes, 82 So.3d at 715.

III. Attorney's Fees

The mother also argues that the trial court erred in ordering her to pay the father's attorney's fees because, she says, she should not have been held in contempt. Because we have concluded that the trial court did not exceed its discretion in finding the mother in contempt, we decline to reverse the trial court's judgments on this point. See, e.g., Henderson v. Mogren, 149 So.3d 629, 639 (Ala.Civ.App. 2014) (upholding attorney-fee award when appellant limited his argument to the merits of the contempt finding that was determined to be without error); and Ala. Code 1975, § 30-2-54.

The mother also argues that the trial court should not have ordered her to pay the father's attorney's fees because, she says, the trial court found both parties in contempt of court, the father's conduct was more reprehensible, and the disparity in the parties' incomes weighs against requiring her to pay the father's attorney's fees.

"Whether to award an attorney fee in a domestic relations case is within the sound discretion of the trial court and, absent an abuse of that discretion, its ruling on that question will not be reversed. Thompson v. Thompson, 650 So.2d 928 (Ala. Civ. App. 1994). 'Factors to be considered by the trial court when awarding such fees include the financial circumstances of the parties, the parties' conduct, the results of the litigation, and, where appropriate, the trial court's knowledge and experience as to the value of the services performed by the attorney.' Figures v. Figures, 624 So.2d 188, 191 (Ala. Civ. App. 1993). Additionally, a trial court is presumed to have knowledge from which it may set a reasonable attorney fee even when there is no evidence as to the reasonableness of the attorney fee. Taylor v. Taylor, 486 So.2d 1294 (Ala. Civ. App. 1986)."

Glover v. Glover, 678 So.2d 174, 176 (Ala. Civ. App. 1996).

In the present cases, the trial court found that the father's income is $12,500 per month and that the mother's income is $4,506 per month. The evidence indicated that the mother had contributed to the child's alienation from the father, which, in turn, caused interference with the father's visitation rights. The father admitted that, in response to the interference with his visitation rights, he had stopped paying the court-ordered child support and educational expenses for the child. Both parties were found in contempt of court for violating provisions of the divorce judgment.

Although there are factors weighing both in favor of and against the attorney-fee award in these cases, the trial court could have concluded, in its discretion, that the mother's contemptuous actions precipitated the litigation in these cases and, therefore, that she should be responsible for the father's attorney's fees. Glover, 678 So.2d at 176.

IV. Admission of Evidence

Finally, the mother argues that the trial court erred in admitting a certain magazine publication as evidence because, she says, that exhibit was hearsay.

"Two fundamental principles govern the standard by which this Court reviews a trial court's rulings on the admission of evidence. Middleton v. Lightfoot, 885 So.2d 111, 113 (Ala. 2003). ' " 'The first grants trial judges wide discretion to exclude or admit evidence.' " ' 885 So.2d at 113 (quoting Mock v. Allen, 783 So.2d 828, 835 (Ala. 2000), quoting in turn Wal-Mart Stores, Inc. v. Thompson, 726 So.2d 651, 655 (Ala. 1998) ). However, 'a trial court exceeds its discretion where it admits prejudicial evidence that has no probative value.' 885 So.2d at 113 (citing Powell v. State, 796 So.2d 404, 419 (Ala. Crim. App. 1999), aff'd, 796 So.2d 434 (Ala. 2001) ).
" ' " 'The second principle "is that a judgment cannot be reversed on appeal for an error [in the improper admission of evidence] unless ... it should appear that the error complained of has probably injuriously affected substantial rights of the parties." ' " ' Middleton, 885 So.2d at 113 (quoting Mock, 783 So.2d at 835, quoting in turn Wal-Mart Stores, 726 So.2d at 655 ). See also Rule 45, Ala. R. App. P. ' "The burden of establishing that an erroneous ruling was prejudicial is on the appellant." ' Middleton, 885 So.2d at 113-14 (quoting Preferred Risk Mut. Ins. Co. v. Ryan, 589 So.2d 165, 167 (Ala. 1991) )."

Baldwin Cty. Elec. Membership Corp. v. City of Fairhope, 999 So.2d 448, 453 (Ala. 2008).

In the mother's brief to this court, she argues that the trial court's admission of the magazine publication was improper because, she says, it was hearsay; she does not, however, argue how the admission of that evidence was prejudicial. Id.; see also Rule 45, Ala. R. App. P. Because the mother has failed to meet her burden in this regard, we decline to hold that the trial court erred in admitting the magazine publication.

Conclusion

Based on the foregoing, we reverse the trial court's judgments to the extent they modified the physical custody of the child. We affirm the judgments in all other respects.

2160325-AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

2160326-AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

      We note that the mother does not argue that "[t]he pertinent 'action' in this case concerned child visitation, not support, and[, therefore, that] § 30-2-54, Ala. Code 1975, ... does not apply." Pate v. Guy, 934 So.2d 1070, 1072-73 (Ala. Civ. App. 2005). Therefore, we do not address that point. See, e.g., R.B.S. v. K.M.S., 58 So.3d 795, 800 (Ala. Civ. App. 2010) (" ' "An argument not made on appeal is abandoned or waived." ' " (quoting Muhammad v. Ford, 986 So.2d 1158, 1165 (Ala. 2007), quoting in turn Avis Rent A Car Sys., Inc. v. Heilman, 876 So.2d 1111, 1124 n.8 (Ala. 2003) )).