author: PITTMAN, Judge.

text:
    James ROBERTS and Virginia Roberts v. UNIVERSITY OF ALABAMA HOSPITAL.
    2070256.
    Court of Civil Appeals of Alabama.
    April 18, 2008.
    Rehearing Denied Dec. 19, 2008.

      Certiorari Denied Aug. 14, 2009 Alabama Supreme Court 1080392.

      William D. Davis III of Davis & Associates, P.C., Birmingham, for appellants.
    William Kent Upshaw of Comer & Up-shaw, LLP, Birmingham, for appellee.
   PITTMAN, Judge.

After suffering injuries in a motor-vehicle collision, James Roberts and Virginia Roberts were immediately taken to the University of Alabama Hospital (“the hospital”) for treatment. After their release from treatment, the hospital filed liens pursuant to Ala.Code 1975, § 35-11-370 et seq., which, in pertinent part, provides for the recording of liens “for all reasonable charges for hospital care, treatment and maintenance of an injured person” that attach to “any and all actions, claims, counterclaims and demands accruing to the person to whom such care, treatment or maintenance was furnished,” as well as “all judgments, settlements and settlement agreements entered into by virtue thereof on account of injuries giving rise to such actions, claims, counterclaims, demands, judgments, settlements or settlement agreements and which necessitated such hospital care.” Ala. Code 1975, § 35 — 11— 370.

In September 2005, the Robertses brought a civil action in the Jefferson Circuit Court against two persons who allegedly had proximately caused their injuries and against the Robertses’ uninsured-motorist insurers. In August 2006, at the Robertses’ request, the trial court granted a motion to authorize the addition of the hospital as a defendant in which the Rob-ertses sought a determination of the amount of charges secured by the hospital’s liens; the Robertses also interpleaded two drafts that had been issued by the tortfeasors’ liability insurer that were payable jointly to both the hospital and the Robertses, by and through their attorney. One month later, all claims in the action that had been asserted against parties other than the hospital were dismissed by stipulation. Subsequently, after an ore tenus proceeding, the trial court entered an eight-page judgment stating findings of fact and conclusions of law; that judgment, in pertinent part, declared that the hospital was entitled to liens in the amount of $19,447.46 as to unpaid charges for services provided to James Roberts and $17,806.63 as to unpaid charges for services provided to Virginia Roberts, amounts that excluded a 15% charge that, the trial court determined, was attributable to “the recovery of the unreimbursed cost of providing indigent care to other patients” at the hospital. Only the Rob-ertses have appealed.

The principal question presented by the parties’ briefs focuses on whether the trial court properly applied that portion of Ala.Code 1975, § 35-11-370, which provides for a hospital lien on the Roberts-es’ tort and insurance recoveries as to “all reasonable charges for hospital care, treatment and maintenance of an injured person” (emphasis added), to the facts presented. Whether the hospital is entitled under the statute to a lien as to all the unpaid charges for which it has billed the Robertses in this case (less the 15% indigent-care-recovery charge not at issue) may properly be deemed a “mixed question” of law and fact. See, e.g., Marcus v. J.R. Watkins Co., 279 Ala. 584, 588, 188 So.2d 543, 546 (1966) (whether a foreign corporation is or is not “doing business” in Alabama within the scope of constitutional and statutory provisions governing activities of foreign corporations in Alabama held a mixed question of law and fact); Pate v. Rasco, 656 So.2d 855, 857 (Ala.Civ.App.1995) (where unsuccessful claimant seeking unemployment compensation had her “residence” within scope of statute governing venue of judicial-review proceeding held a mixed question of law and fact). Appellate courts properly apply a presumption of correctness to factual determinations of trial courts, even in the context of mixed questions of law and fact (see Pate, 656 So.2d at 857), although determinations on questions of law are properly given no such presumption. See Alabama Farm Bureau Mut. Cas. Ins. Co. v. Cain, 387 So.2d 195, 197 (Ala.1980) (in order to reverse judgment on issue involving mixed question of law and fact, reviewing court need only conclude “that [it] differ[s] with the trial court, not on the facts, but on its application of the law to those facts”).

The trial court’s judgment fully summarizes the pertinent testimony adduced at trial:

“The Court received testimony from ... a nurse auditor in the Department of Finance for [the hospital]. [The auditor] testified that all of the charges which appeared on the accounts for both plaintiffs were necessary in that all charges were verified to be as a result of a treating physician’s orders, thereby making the services and the charges associated therewith necessary. There was one service rendered for which the audit indicated a proper charge of $200.00 had not been made in the treatment of Plaintiff James M. Roberts.
“The Court also received testimony from [the hospital’s] Manager of Claims and Collections. [The manager] testified as to the procedures by which the hospital liens were prepared and filed in the amount which corresponded to the amounts billed by the said hospital. The Court received into evidence the two liens for each Plaintiff. Due to the payment of $1,000 on each account, the amounts of the liens were established in the testimony as $21,125.45 for Mrs. Roberts and $23,055.84 for Mr. Roberts.
“Finally, the Court received the testimony of [the hospital’s] Director of Reimbursement- [The director] testified that he has been employed by [the hospital] for 3 years in his current capacity after having served 20 years in a similar capacity at [another area hospital]. [The director] testified that he monitors the Blue Cross/Blue Shield reporting and sets the charges for services for the hospital.
“[The director] testified that he set prices on a schedule known as a Charge Master, which is a price list for services rendered by the hospital to inpatients. It is an industry standard to work from the said Charge Master. [The manager] testified that regardless of the means or methods of payment from the patient, the price list is applied uniformly across the board to all patients in order to establish the cost of services rendered. The Charge Master is reviewed and updated annually to set prices according to the market.
“[The director testified that the hospital] provides a substantial amount of uncompensated health care due to its maintenance of a Level I Trauma Unit, among other services, including the fact that [the hospital] is a research hospital. [The director] testified that as a part of the cost of providing health care to inpatients, a certain portion of operating overhead is applied to each case and that a part of that overhead is the cost of providing health care to patients who are unable to pay for the services. [He] testified that in his opinion 15% of the cost for services rendered to those patients able to pay for their care is attributed to recovery of cost for the hospital of services rendered to those unable to pay.
“On cross-examination, [the director] was questioned with regard to the various amounts that [the hospital] will accept as payment for services. The amounts from governmental benefits such as Medicare and Medicaid were significantly below the amount charged. However, [the director] testified that by law, the hospital must accept these sums in full payment for services rendered to those patients qualified to receive such governmental benefits and the fact of acceptance of such an amount in no way reflects upon the cost or the value of the services rendered to such patients. The alternative to the hospital in such cases, in lieu of accepting payment under a government benefit plan is to receive no payment at all[;] therefore the reduced amount under the government benefit program is accepted in payment by the hospital.
“Likewise, with regard to the amount accepted from a Blue Cross/Blue Shield patient, such amount is paid under a contract between the health insurer and the hospital. By contract, Blue Cross/ Blue Shield conducts an independent audit of the hospital in order to arrive at a per diem cost reimbursement per patient amount. Blue Cross/Blue Shield pays the hospital for treatment of its contract holders based upon this said contract cost reimbursement rate, which[, the director] testified, has many factors taken into consideration other than the cost of providing services to any single Blue Cross patient. In some cases, the per diem reimbursement rate is greater than the cost of providing services and in other cases, the said per diem rate is less than the cost of providing services. However, in order to be an institution which is qualified to receive Blue Cross reimbursement for treatment of Blue Cross patients, which is a vast majority of individuals in Alabama, the contract rate must be accepted. Again, [the director] testified that [the hospital’s] willingness to accept Blue Cross reimbursement as payment for hospital services rendered to a Blue Cross patient [is based upon] many other factors and considerations other than the cost or the value of the services rendered to the said Blue Cross patient.”

The trial court’s judgment declaring the amount of the hospital liens did not wholly embrace the hospital’s position that “all charges incurred by [a] hospital institution, including unreimbursed charges for the treatment of the indigent and those unable to pay, should be included as reasonable charges for the hospital care provided to any patient.” Specifically, the trial court deducted from the lien amounts “15% of the charges” levied by the hospital, an amount that was, according to the trial court, attributable “to the recovery of the unreimbursed cost of providing indigent care to other patients” rather than to the reasonable value of the services rendered to the Robertses. However, the trial court, in determining the amount of the hospital liens to be all the hospital’s billed charges less (1) that 15% additional charge, and (2) $2,000 representing medical-payments insurance benefits previously disbursed on behalf of the Robertses to the hospital, necessarily concluded that the charges assessed by the hospital for services provided to the Robertses that had remained unpaid on the trial date, apart from the 15% additional charge, represented the “reasonable value” of the hospital’s care, treatment, and maintenance of the Robertses. See Ex parte University of South Alabama, 761 So.2d 240, 244 (Ala.1999) (noting that the hospital-lien statute “giv[es] a hospital an automatic hen for the reasonable value of its services” in order “to induce it to receive a patient injured in an aceident[ ] without first considering whether the patient will be able to pay the medical bills incurred” (emphasis added)).

The trial court’s determination, based upon the evidence adduced at trial that the hospital had billed the Robertses only for services that were medically necessary and that the unenhanced charges for those services had been determined by reference to a uniform, industry-standard pricing list that is updated annually, was consistent with Alabama precedents indicating that evidence from hospital personnel concerning the reasonableness of treatment rendered and charges billed to patients is competent to demonstrate “reasonable charges” to which a hospital lien, under § 35-11-870, will extend. See Johnson v. Health Care Auth. of Huntsville, 660 So.2d 1017, 1018-19 (Ala.Civ.App.1995) (affirming summary judgment for hospital operator on claim that charges included in hospital lien were unreasonable based upon unrebutted affidavits of hospital’s nurse manager and budget coordinator concerning reasonableness of charges); see also Ex parte University of South Alabama, 737 So.2d 1049, 1053 (Ala.1999) (unrebutted testimony of acting director of hospital’s business services that hospital’s charges for services rendered to injured party were reasonable was evidence that supported hospital’s entitlement to judgment as a matter of law on quantum-meruit claim). Thus, the hospital made a prima facie showing of entitlement to hospital liens in the amounts determined by the trial court.

In an attempt to rebut the hospital’s evidentiary showing, counsel for the Rob-ertses sought to direct the trial court’s attention to the hospital’s practice of accepting less than the full amount of its billed rates from patients having contractual or legal relationships with third-party payors, such as Blue Cross and Blue Shield, Medicare, and Medicaid. For that evidence to be material and relevant, it would have had to bear upon the question of the “reasonable value” of the hospital’s services. However, as the trial court’s summation of the testimony of the hospital’s director of reimbursement given on cross-examination would indicate, that court deemed such evidence to be of no probative value concerning the ultimate question of the “reasonable charges” assessed against the Robertses.

The trial court’s decision not to deem persuasive evidence of sums paid to the hospital under different financing schemes does not amount to reversible error. As the director explained in his testimony, the hospital’s acceptance of lower payments from Blue Cross and Blue Shield, Medicare, and Medicaid patients stemmed from legal and contractual requirements that applied solely to those classes of patients. It is undisputed that the Robertses were not covered under a Blue Cross and Blue Shield plan, and there is no evidence indicating that they were covered under Medicaid. Although the Robertses were entitled to benefits under Medicare, the hospital had a clear right under federal law to reject a lesser payment under Medicare for the services it provided to the Robertses in lieu of seeking a larger payment from settlement proceeds. See generally Joiner v. Medical Ctr. East, Inc., 709 So.2d 1209, 1221 (Ala.1998) (recognizing right of hospital to obtain full payment of its charges from proceeds of patient’s settlement with tortfea-sor notwithstanding fact that settlement occurred more than 120 days after patient’s discharge from hospital).

Our conclusion that the trial court could properly disregard evidence of the hospital’s practice of accepting less than full reimbursement from third-party payors in other contexts is consistent with decisions in other states. For example, in Parnell v. Madonna Rehabilitation Hospital, Inc., 258 Neb. 125, 602 N.W.2d 461 (1999), the Nebraska Supreme Court rejected as inconsistent with that state’s hospital-lien statutes an argument similar to that made by the Robertses, i.e., that the “usual and customary charges” of the hospital treating a patient injured by a tortfeasor should be less than the billed charges:

“Parnell contends that because Madonna often receives less than the full amount of its billings for services provided to patients covered by medicaid, medicare, and workers’ compensation, the ‘usual and customary charges’ of the hospital are less than the amount that it bills to patients.
“In the absence of anything to the contrary, statutory language is to be given its plain and ordinary meaning; an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous. Section 52 — 401[, Neb.Rev.Stat.,] plainly states that a lien attaches to ‘the usual and customary charges ’ of the service provider. (Emphasis supplied [in Parnell ].) However, Parnell’s interpretation would require that the amounts actually collected by a service provider be considered instead of the amount charged. Such an interpretation is contrary to the plain language of the statute.”

Parnell, 258 Neb. at 129-30, 602 N.W.2d at 464 (citations omitted); see also Parnell v. Good Samaritan Health Sys., Inc., 260 Neb. 877, 880, 620 N.W.2d 354, 357 (2000) (declining to reconsider that principle of law). To like effect is Hillsborough County Hospital Authority v. Fernandez, 664 So.2d 1071 (Fla.Dist.Ct.App.1995), in which a Florida appellate court held that evidence of discounts extended by a hospital to patients enrolled in health-maintenance organizations and preferred-provider organizations and to patients eligible for Medicare, Medicaid, and workers’ compensation benefits did not sufficiently support a judgment reducing a hospital lien extending to “all reasonable charges” by 38 percent.

We note that other courts have held improper certain hospitals’ practices of “balance billing” patients enrolled in health-maintenance or preferred-provider organizations or receiving medical benefits pursuant to a governmental entitlement so that the hospitals might recover the difference between the lower contract or legal rate of reimbursement and those hospitals’ usual charges. See, e.g., Parnell v. Adventist Health Sys./West, 35 Cal.4th 595, 609, 109 P.3d 69, 79, 26 Cal.Rptr.3d 569, 581 (2005). However, we are aware of no reported case, and the Robertses have cited none, in which a patient outside such organizational or governmental coverages has been allowed to take advantage of such preferred rates of reimbursement in order to retain a greater share of a tort recovery at the expense of a treating hospital.

The judgment of the trial court is affirmed. The motion to strike the appendix to the hospital’s brief is denied as moot.

AFFIRMED.

THOMPSON, P.J., and BRYAN, THOMAS, and MOORE, JJ., concur.

      . Although this court, in University of South Alabama Hospitals v. Blackmon, 987 So.2d 1138 (Ala.Civ.App.2007), held that an order purporting to determine the amount of a hospital lien as to proceeds of settlement of tort claims is void when the claims had not been reduced to a judgment at the time of the order, this case may properly be distinguished from Blackmon because (1) the Robertses in-terpleaded the drafts that had been issued by the liability insurer of the tortfeasors and that had represented the amounts of the claimed hospital liens, (2) the hospital was expressly added as a party in this case, and (3) the trial court in this case entered its judgment determining the amount of the pertinent hospital liens after the Robertses' tort claims had been settled and dismissed.

        . Because the hospital had (and exercised) the option not to accept Medicare benefits as full payment in the circumstances of this case, the trial court’s statement that the Robertses were not "qualified to receive government benefits,” although overbroad, amounts to error without injury. See Rule 45, Ala. R.App. P.


source: Caselaw Access Project

license: Public Domain

text:
    J.J. v. J.H.W. et al. C.S.S. and R.W.S. v. J.H.W. et al.
    2061197 and 2070005.
    Court of Civil Appeals of Alabama.
    Oct. 10, 2008.
    Rehearing Applications Denied June 12, 2009.
    Certiorari Denied Sept. 14, 2009 Alabama Supreme Court 1081271.

      Brent L. Callihan, Pelham, for appellant J.J.
    Horace V. O’Neal, Jr., of Leo & O’Neal, Birmingham, for appellants C.S.S. and R.W.S.
    Douglas L. Key and Foster D. Key of Key Greer Frawley Key & Harrison, Birmingham, for appellee J.H.W.
   PITTMAN, Judge.

These appeals arise from a judgment entered in two related actions in the Shelby Juvenile Court denying petitions filed in April 2005 by C.S.S. and R.W.S. (“the maternal grandparents”), who are the maternal grandparents of T.S.W. and K.M.W. (“the children”), for termination of the parental rights of J.J. (“the mother”) and J.H.W. (“the father”) as to the children; determining the children to be dependent; and awarding custody of the children to the father subject to visitation by the maternal grandparents and the mother. Although the juvenile court initially entered an order transferring the cases to its counterpart in Jefferson County because a paternity action in Jefferson County involving the children and their parents had been litigated to a judgment, that transfer was not accepted, and the juvenile court implicitly reassumed jurisdiction (the children having been alleged in the termination petitions to be living at the maternal grandparents’ residence located in Shelby County). The father then filed an answer and a counterclaim for pendente lite and permanent custody of the children, and the juvenile court subsequently awarded him pendente lite custody of the children.

In July 2006, after partially completing ore tenus proceedings, the juvenile court issued an order determining the children to be dependent, denying the maternal grandparents’ requests to terminate the parental rights of the mother and the father, altering visitation pendente lite, and setting the case for the receipt of further testimony. In August 2007, after further hearings, the juvenile court entered a judgment confirming its previous determinations regarding dependency and denial of the termination petitions and awarding the father custody of the children. The juvenile court extended the following visitation privileges to the maternal grandparents: a 48-hour weekend each month, weekly telephone contact between the children and the grandparents for 30 minutes, 2 lunch periods each month at the children’s school at which the grandparents would be entitled to be present, and visitation “at other times as may be agreed upon by the parties.” As to the mother, the juvenile court found that the mother had relinquished her parental rights to her parents (i.e., the maternal grandparents) and had no maternal bond with the children; however, the mother was nonetheless authorized to visit with the children “during the dates and times [the] children are visiting with the [m]aternal [grandparents.” Although the juvenile court set a September 2007 hearing on certain motions of the parties concerning visitation matters, the August 2007 judgment indicates an intent to dispose of all other pending matters, and it expressly states that any party would have the right to appeal within 14 days. After the denial, pursuant to Rule 59.1, Ala. R. Civ. P., and Rule 1, Ala. R. Juv. P., of their post-judgment motions, the mother (case No. 2061197) and the maternal grandparents (case No. 2070005) filed notices of appeal; those appeals have been consolidated for review, and the juvenile court has certified the record on appeal as adequate for review by this court.

In these two appeals, the mother suggests that the judgment is not final, asserts that the award of custody to the father is erroneous, and contends that she should have been awarded visitation rights that are not dependent upon those of the maternal grandparents. The maternal grandparents, in their appeal, likewise suggest nonfinality and assert error in the award of custody to the father; they further contend that the juvenile court should have included, in its August 2007 judgment, standard language specified in the Alabama Parent-Child Relationship Protection Act, AIa.Code 1975, § 30-3-160 et seq. (“the APCRPA”). We will address the appellants’ overlapping arguments regarding finality and error as to the custody award together, and we will then separately address those issues (i.e., the mother’s visitation argument and the maternal grandparents’ argument concerning the APCRPA) that are unique to each separate appeal.

The first issue raised by both the mother and by the maternal grandparents is whether the judgment under review is final. In its August 2007 judgment, the juvenile court determined that the children remained dependent, denied the maternal grandparents’ request for termination of the parents’ parental rights, and made a disposition of the children’s custody. Under our caselaw, a formal determination by a juvenile court of a child’s dependency coupled with an award of custody incident to that determination will give rise to an appealable final judgment even if the custody award is denominated as a “temporary” award and further review of the case is envisioned. See Potter v. State Dep’t of Human Res., 511 So.2d 190, 192 (Ala.Civ.App.1986); see also C.L. v. D.H., 916 So.2d 622, 625-26 (Ala.Civ.App.2005). We thus reject the appellants’ challenges to the finality of the judgment under review.

We next address the appellants’ contention that the juvenile court erred in awarding custody of the children to the father incident to its determination that the children were dependent. In Ex parte Alabama Department of Human Resources, 682 So.2d 459 (Ala.1996), the Alabama Supreme Court stated the applicable principles of appellate review in the context of a challenge to a juvenile court’s custodial disposition of a dependent child:

“Appellate review is limited in cases where the evidence is presented to the trial court ore tenus. In a child custody case, an appellate court presumes the trial court’s findings to be correct and will not reverse without proof of a clear abuse of discretion or plain error. Reuter v. Neese, 586 So.2d 232 (Ala.Civ.App.1991); J.S. v. D.S., 586 So.2d 944 (Ala.Civ.App.1991). This presumption is especially applicable where the evidence is conflicting. Ex Parte P.G.B., 600 So.2d 259, 261 (Ala.1992). An appellate court will not reverse the trial court’s judgment based on the trial court’s findings of fact unless the findings are so poorly supported by the evidence as to be plainly and palpably wrong. See Ex Parte Walters, 580 So.2d 1352 (Ala.1991).”

682 So.2d at 460. The pertinent question is, therefore, whether the juvenile court’s judgment awarding custody of the children to the father, rather than the maternal grandparents, is supported by the evidence when the evidence is viewed in a light most favorable to the judgment under review. See Whitt v. Whitt, 460 So.2d 1328, 1329 (Ala.Civ.App.1984); see also Russell v. Russell, 19 So.3d 879, 880 (Ala.Civ.App.2008).

The record reveals that, in March 1996, the mother, while unmarried, gave birth to the two children whose custody is at issue. At the time, both the mother and the father were still enrolled in high school. In a subsequent proceeding to determine the paternity of the children, the father was found to be the children’s biological father; was given certain visitation rights with the children; and was directed to pay $200 in monthly child support to the mother, who had continued to live with her parents (i.e., the maternal grandparents) after the birth of the children.

During the years immediately following the birth of the children, the father attended college in Tennessee and medical school in Alabama, ultimately becoming a medical doctor. Although disputed, there was testimony from the father and his parents (the paternal grandparents of the children) that the father had consistently exercised the twice-monthly weekend-visitation rights awarded him in the paternity judgment, with the exception of one weekend when the father was ill. Moreover, the father testified that, as required by the paternity judgment, he had paid child support throughout his enrollment in college and medical school.

Although the mother was awarded custody of the children in the paternity judgment, much of the actual care for the children was provided by the maternal grandparents for the first six years of their lives, after which the mother and the children moved from the maternal grandparents’ home to a separate residence in Homewood. The mother married her current husband, D.J., in 2003, and the mother and her husband moved with the children to Lawrence County. However, during 2004, while the children were living with the mother and her husband, the husband began treating the children harshly; according to the mother, he administered immoderate corporal punishment and engaged in behavior that amounted to abuse of the children, such as shaking one of the children until he began urinating. In response to her husband’s behavior towards the children, the mother sent the children back to the maternal grandparents’ home to live and executed written documents in which she purported to grant her custodial rights to the maternal grandparents. The children subsequently lived with the maternal grandparents until August 2005, when the father was awarded pendente lite custody.

The father testified in the juvenile court that, upon the relocation of the children in 2004 to the maternal grandparents’ home, the maternal grandparents had returned to the now eight-year-old children their former security objects (i.e., a blanket and a burp rag) from which they previously had been weaned by the mother. There was also evidence adduced at trial indicating that the maternal grandparents had come to the children’s school to eat lunch with them one to three times per week after the father had been awarded penden-te lite custody and that other students at the school had teased the children because of the maternal grandparents’ physical displays of affection. The father recounted having witnessed the maternal grandparents, while the children were competing in a youth football game, holding the children’s heads back and sticking water bottles in their mouths in a manner reminiscent of feeding infants. Additionally, there was evidence indicating that the maternal grandparents had coached the children as to specific incidents they should relate to counselors and to their guardian ad litem and that the maternal grandparents had given the children books in which they had written down accounts of actions of the father and his current wife that might bear on the ongoing litigation in the juvenile court.

As to the father’s fitness, there was evidence indicating that the father was working as a physician in upper-level residency, had married (and had a daughter with) his wife, L.A.W., and had acquired a residence in northern Jefferson County. The father’s wife is a retired high-school teacher and a full-time homemaker who assists the father with the children’s care. Although the children had repeated the first grade in school while under the care of the mother, the father testified that the children (who were in fourth grade at the time of trial) had been doing well in school while in his care. A home study undertaken by a representative of the Jefferson County Department of Human Resources concluded that the father’s home was “safe and secure” for the children and that the father and his wife appeared to be “committed to ensuring that the well being of the [children] is met in the most appropriate manner.”

At trial, the children’s guardian ad litem called as a witness a special advocate that had been appointed by the court to evaluate the children’s best interests. The spe-eial advocate testified concerning her observations that although the children were very pleasant, had bonded to both the father and the maternal grandparents, and had expressed no complaints as to the care of the father or the maternal grandparents, the children had tended to be slightly more “hyper” in the company of the maternal grandparents and to engage in behavior that is more characteristic of early childhood in the presence of the maternal grandparents. The special advocate intimated that the children might be susceptible to problems with acknowledging authority in their teenage years if their bond with the father was weaker than with the maternal grandparents, and she recommended that the children’s contact with the maternal grandparents be reduced to one weekend of visitation per month.

Citing S.P. v. V.T., 988 So.2d 572 (Ala.Civ.App.2008), in their appellate brief, the maternal grandparents appear to contend that precedents requiring reversal when a trial court has applied too stringent a substantive standard in determining a custody matter mandate reversal of the juvenile court’s judgment in this case. See generally Rehfeld v. Roth, 885 So.2d 791, 794-95 (Ala.Civ.App.2004) (summarizing principles governing when application of erroneous standard to custody matter is and is not reversible error). In this case, however, the juvenile court’s judgment, to the extent that it reflects the use of any particular custody standard, indicates that that court considered what custody and visitation arrangement would serve the “best interest” of the children. That standard is consonant with the role of juvenile courts in situations in which children have been found dependent, as in this case: “a juvenile court may make any disposition that advances the best interest and welfare of the child when faced with determining the proper placement of a dependent child.” B.H. v. Marion County Dep’t of Human Res., 998 So.2d 475, 481 (Ala.Civ.App.2008) (citing Ala.Code 1975, § 12-15-71(a), and J.S.M. v. P.J., 902 So.2d 89, 94-95 (Ala.Civ.App.2004)). We perceive from the record no erroneous application of a higher standard by the juvenile court than the “best interest” standard espoused by our legislature in § 12-15-71(a).

The maternal grandparents further intimate that reversal is appropriate based upon the doctrine of voluntary forfeiture, relying primarily upon the main opinion in Ex parte G.C., 924 So.2d 651 (Ala.2005), which had, in turn, relied upon our decision in K.C. v. D.C., 891 So.2d 346 (Ala.Civ.App.2004). As an initial matter, whether the father voluntarily forfeited any primary custodial rights before the maternal grandparents initiated these proceedings is immaterial. As we have noted, the juvenile court has determined the children to be dependent, and, therefore, that court was empowered to award custody in any manner “that advances the best interest and welfare of the child” (B.H., supra), including even placement with a nonparent (see J.W. v. C.H., 963 So.2d 114, 121 (Ala.Civ.App.2007)). Even were we to assume that the father’s potential forfeiture of custody is a material consideration, however, we note that in both G.C. and K.C. custodial dispositions were affirmed because the pertinent trial court had properly found from the facts that a child’s father had voluntarily forfeited custody to the child’s maternal grandparents. We have no such finding in this case, and the conduct of the father in this case does not equate with the conduct of the father in EC. (who asked the maternal grandmother to rear his child because he could not, see 891 So.2d at 347) or the father in G.C. (who was found to have a pattern of irresponsibility such that he was unfit to have custody of any child, see 924 So.2d at 656-57).

Based upon our consideration of the conflicting evidence in this case under the applicable standard of review, and viewing that evidence in a light most favorable to the judgment under review, as we must, we conclude that the mother and the maternal grandparents have not demonstrated reversible error as to the juvenile court’s custody award to the father. Thus, as to that issue, the juvenile court’s judgment is due to be affirmed.

Having addressed the common issues presented by the two consolidated appeals, we next consider issues raised separately by the maternal grandparents and the mother. The mother contends on appeal that the juvenile court’s judgment erroneously fails to afford her “unencumbered” visitation periods with the children. As the mother correctly notes, our cases have consistently held that a parent who retains residual parental rights (see § 12-15-1(24), Ala.Code 1975) as to his or her child is generally entitled to definite periods of visitation with that child; as the main opinion in D.B. v. Madison County Department of Human Resources, 937 So.2d 535, 541 (Ala.Civ.App.2006), states, “it is reversible error for a trial court to leave a noncustodial parent’s visitation rights with his or her child to the discretion of the custodial parent or other legal custodian of the child.” Thus, in L.L.M. v. S.F., 919 So.2d 307 (Ala.Civ.App.2005), we reversed a juvenile-court judgment allowing a mother to visit with her dependent child only ‘“when the father or the child [was] in the locality in which the mother reside[d],’ ” concluding that the judgment had “place[d] the father in control of the mother’s visitation” and that “a specific visitation schedule” should have been set forth. 919 So.2d at 314-15.

In this case, although the juvenile court determined that “the children have a right to contact and visit with their mother” notwithstanding evidence tending to show the mother’s relinquishment of her custodial rights to the maternal grandparents, that court specified that the mother’s visitation with the children was to occur on “the dates and times said children are visiting with the [m]aternal [grandparents.” Like the judgments condemned in D.B. and L.L.M., the condition placed upon the mother’s visitation rights is within the control of other parties — if the maternal grandparents do not actually exercise their visitation rights, there will be no regular period during which the children “are visiting with” the maternal grandparents, and the mother and children will have no independent right of contact with each other.

The father, in defense of the juvenile court’s judgment concerning visitation, points to testimony of the mother and the mother’s sister to the effect that any visitation between the mother and the children should occur out of the presence of the mother’s husband and at the home of the maternal grandparents. Although such testimony does appear in the record, we cannot infer from that testimony any intent on the mother’s part to waive a separate right of visitation. As the judgment currently reads, the mother would not be authorized to visit with the children at any time in the absence of the maternal grandparents, even during periods when the mother might be able to care for the children at the home of the maternal grandparents while the maternal grandparents are away. We conclude, therefore, that the mother has demonstrated reversible error as to the juvenile court’s visitation award.

However, we reject the maternal grandparents’ argument that the judgment of the juvenile court is due to be reversed based upon its failure to include provisions regarding parental relocation as mandated by the APCRPA. Although the APCRPA does indeed require that a court rendering a custody judgment include language that informs the parties of their rights and obligations in the event of a proposed relocation of the primary custodial parent of a child, see generally Ala.Code 1975, § 30-3-166, the maternal grandparents did not assert in the juvenile court that the failure to include the required language was erroneous. Thus, they have waived that ground as a basis for reversal. See Sankey v. Sankey, 961 So.2d 896, 898 (Ala.Civ.App.2007) (failure to present argument that APCRPA was unconstitutional to trial court barred appellate consideration of that argument). That said, should the maternal grandparents wish to insist upon inclusion of the mandated language in the judgment, the APCRPA provides that they may petition to modify that judgment accordingly. See Ala.Code 1975, § 30-3-162(a) (“Any person entitled to the legal or physical custody of or visitation with a child may commence an action for modification to incorporate the provisions of [the APCRPA] into an existing order determining the custody of or visitation with a child.”). Indeed, because the cases under review are being remanded because the provisions of the judgment pertaining to the mother’s visitation must be reexamined by the juvenile court, it would seem reasonable to conclude that the maternal grandparents may properly seek such relief in the juvenile court upon remand from this court.

Because the juvenile court improperly conditioned the mother’s visitation with the children upon the maternal grandparents’ exercise of their own visitation rights, we reverse the juvenile court’s judgment insofar as it addresses the issue of the mother’s visitation. In all other respects, we affirm the juvenile court’s judgment. The cases are remanded to the juvenile court for further proceedings in conformity with this opinion. The father’s requests for an award of attorney fees in these appeals are denied.

2061197 — AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

2070005 — AFFIRMED.

THOMPSON, P.J., and BRYAN, THOMAS, and MOORE, JJ., concur.

      . No party has contended that the juvenile court erred in determining that the children were dependent; thus, that issue is not presented for this court's review.


author: MOORE, Judge. MOORE, Judge.

text:
    Deborah Lynn WEEKS v. Michael Roy WEEKS.
    2070489.
    Court of Civil Appeals of Alabama.
    Dec. 19, 2008.
    Opinion Overruling Rehearing Feb. 20, 2009.
    Certiorari Denied Aug. 14, 2009 Alabama Supreme Court 1080651.

      Eddie Beason of McDowell, Beason & Hamilton, P.C., Russellville, for appellant.
    M. Lionel Leathers of Leathers Law Firm, Winfield, for appellee.
   MOORE, Judge.

Deborah Lynn Weeks (“the wife”) appeals from a judgment entered by the Marion Circuit Court (“the trial court”) divorcing her and Michael Roy Weeks (“the husband”) and dividing the parties’ property. We affirm.

Procedural History

On August 8, 2007, the wife filed a complaint requesting a divorce from the husband. The husband answered the complaint on August 22, 2007. After a trial, the trial court entered a judgment on October 16, 2007, awarding the wife $20,000 as alimony in gross, a 1999 Chrysler automobile, and certain other items of personal property. The trial court awarded the husband his retirement accounts, the parties’ real property, the parties’ bank accounts, a truck, and all personal property not specifically awarded to the wife. The trial court ordered the husband to pay the debt associated with the real property and the parties’ credit-card debt. On November 15, 2007, the wife filed a motion to alter, amend, or vacate the divorce judgment or, in the alternative, for a new trial. After a hearing, the trial court amended the judgment to require the husband to pay the wife $350 per month in alimony for a period of 10 years. The wife filed her notice of appeal to this court on February 22, 2008.

Issue

On appeal, the wife argues that the trial court exceeded its discretion in its division of property because, she says, the division of property is inequitable.

Standard of Review

Because the trial court heard oral testimony on this issue, the ore tenus rule is applicable.

“ ‘[W]hen a trial court hears ore tenus testimony, its findings on disputed facts are presumed correct and its judgment based on those findings will not be reversed unless the judgment is palpably erroneous or manifestly unjust.’ Philpot v. State, 843 So.2d 122, 125 (Ala.2002). ‘ “The presumption of correctness, however, is rebuttable and may be overcome where there is insufficient evidence presented to the trial court to sustain its judgment.” ’ Wattman v. Rowell, 913 So.2d 1083, 1086 (Ala.2005) (quoting Dennis v. Dobbs, 474 So.2d 77, 79 (Ala.1985)).”

Fadalla v. Fadalla, 929 So.2d 429, 433 (Ala.2005).

“[T]he ore tenus rule affords a correct and necessary deference to the trial court’s factual findings, recognizing that an appellate court sees only a written record and does not observe the appearance, behavior, and demeanor of live witnesses. The ore tenus rule simultaneously requires the appellate court to review the trial court’s judgment to determine if it is supported by the appropriate level of evidence. The rule thus preserves the safeguards of the standard of proof that was utilized by the trial court without improperly usurping the trial court’s role as fact-finder.”

J.C. v. State Dep’t of Human Res., 986 So.2d 1172, 1185-86 (Ala.Civ.App.2007). Additionally, “[a] property division made by a trial court will not be set aside on appeal absent a palpable abuse of its discretion.” TenEyck v. TenEyck, 885 So.2d 146, 154 (Ala.Civ.App.2003).

“The purpose of the division of marital property is to give ‘each spouse the value of [his or her] interest in the marriage. Each spouse has a right, even a property right in this.’ ” Lo Porto v. Lo Porto, 717 So.2d 418, 421 (Ala.Civ.App.1998) (quoting Pattillo v. Pattillo, 414 So.2d 915, 917 (Ala.1982)).

“On appeal, the issues of alimony and property division must be considered together. The trial court’s judgment on those issues will not be reversed absent a finding that the judgment is so unsupported by the evidence as to amount to an abuse of discretion. [Parrish v. Parrish, 617 So.2d 1036 (Ala.Civ.App.1993).] The property division need not be equal, but it must be equitable. Id. The factors the trial court should consider in dividing the marital property include ‘the ages and health of the parties, the length of their marriage, their station in life and their future prospects, their standard of living and each party’s potential for maintaining that standard after the divorce, the value and type of property they own, and the source of their common property.’ Covington v. Covington, 675 So.2d 436, 438 (Ala.Civ.App.1996).”

Courtright v. Courtright, 757 So.2d 453, 456 (Ala.Civ.App.2000).

Facts

The parties were married on August 4, 1995. The wife testified that, approximately one week before the parties married, she had filed a Chapter 7 bankruptcy proceeding in the United States Bankruptcy Court. At the time of the marriage, the wife was employed and owned a house, an automobile, her furniture, and personal items; the husband was employed and owned a house, $500 in a checking account, and an automobile valued at approximately $2,200. Upon the marriage, the wife quit her job, sold her house, netting $3,000, and sold her refrigerator for $500, and she and her younger child moved into the husband’s house.

After moving in with the husband, the wife worked only for a brief time, earning a total of $978.85. The wife testified that she became disabled in 1996, that she had received a lump-sum Social Security disability payment of $15,624.20 in 1998, and that she had since received a monthly Social Security disability benefit, which was $740 at the time of the trial. The wife testified that she takes prescription medication for pain and several other prescription medications for various conditions. During the marriage, the husband worked as a miner about 60 hours per week and earned approximately $60,000 to $70,000 annually. The husband worked until January 2006, when he suffered an on-the-job injury to his neck and lower back. At the time of the trial, the husband was receiving $629 weekly in workers’ compensation benefits for temporary total disability. See Ala.Code 1975, § 25-5-57(a)(l).

The husband testified that the wife’s monthly Social Security disability benefits had always been deposited into the wife’s separate bank account. The wife testified that she had used that money to purchase clothing for herself, the husband, and her younger child. She testified that she had also used that money to get her hair done, to pay her medical co-pays, to pay for her younger child’s automobile insurance, and to help her younger child pay his rent when he was enrolled in college. She also testified that she had purchased items for the house and had purchased groceries “every now and then.” The wife further testified that she had used her lump-sum Social Security disability payment to pay off the debt owed on an automobile that the husband had owned. The husband testified that the wife had used the money in her account for her personal items, for gifts, and to help her children. He also testified that he had paid all the parties’ bills and had also paid for some of the wife’s personal expenses. The husband testified that he had also contributed financially to the wife’s younger child’s well-being. The husband testified that when the wife’s younger child turned 16, he had purchased a car for the child and had paid the child’s automobile insurance. The husband testified that the wife had, without the husband’s knowledge, allowed her older child to use the husband’s credit card to purchase appliances. The evidence indicated that the wife’s older child had written the husband a check to pay the balance due on the credit card.

The wife testified that, after living in the husband’s house for some time, the parties decided to build a new house; the husband sold his house and purchased a house along with 19.75 acres of land (“the real property”). The wife testified that the husband had paid a portion of the purchase price of the real property with $15,268.92 that he had netted from the sale of his house and with money that he had borrowed from his father and that he had financed the remainder of the purchase price. The wife testified that the husband had made all the mortgage payments on the real property and had also made extra payments toward the mortgage throughout the marriage. At the time of the trial, the parties owed $42,362.79 on the mortgage. The most recent tax appraisal valued the real property at $164,425. The husband valued the real property at approximately $165,000. The wife, however, valued the real property at $229,000. The husband testified that he had told a real-estate agent that he would sell the real property if he could get $230,000 but that no such offer had been made.

In October 2002, the parties borrowed money on a home-equity line of credit to pay for a Chrysler automobile. In May 2007, the wife borrowed $3,000 from the parties’ home-equity line of credit. The husband testified that he had made all the payments on the line of credit. The balance on the home-equity line of credit was $11,652.32 at the time of the trial.

The wife testified that the parties own a 1999 Chrysler automobile and a 1994 truck. She testified that the husband had told her the Chrysler was worth $6,000; she testified that the truck is worth about $4,000. She testified that the parties own a tractor and a lawnmower, which the husband had told her were worth $5,500 and $1,300, respectively. She also testified that the husband had told her they had $11,561 in a savings account and $2,000 in a checking account. The husband also owned a boat that he had prior to the parties’ marriage. The wife testified that she has $200 in her own savings account.

The wife’s jewelry had an appraised value of $12,987.05. The wife testified that she had had some of the jewelry before the parties’ marriage and that the jewelry that she had acquired during the marriage had been gifts. She also testified that the husband had told her that the pieces of jewelry he had given her were not gifts but, instead, were investments. The wife testified that she believed the personal property awarded to the husband was worth approximately $6,000.

The wife introduced the testimony of a certified public accountant. The accountant testified that he had calculated the present value of the husband’s United Mine Workers of America pension to be $125,563. On cross-examination, however, the accountant admitted that he had calculated the value based on the husband’s entire employment period, not just the portion of the husband’s employment during the parties’ marriage. The calculation also included the time that the husband had been disabled and unable to work. The husband’s younger son, who is a civil engineer, testified that the present value of the husband’s pension, taking into consideration only the husband’s employment during the parties’ marriage, was $43,847. The wife testified that the husband had told her that his separate 401k retirement account was valued at $29,000.

After the birth of her grandchild in 2007, the wife made two trips to Florida to assist with caring for the baby. During the wife’s second trip to Florida, the husband went to Florida to pick up the wife and an argument ensued. The husband testified that the wife had subsequently telephoned him on August 1, 2007, and told him that she wanted a divorce. The wife testified that the husband had threatened to harm her; the husband denied making any threats. The husband testified that, although he had helped the wife throughout her years of disability, the wife had tried to get her mother to stay with the husband at the hospital during the surgery for his work-related injuries, instead of having to accompany him herself. The husband testified that, during the last year of the parties’ marriage, all the wife had done was lie around the house in her pajamas and go out on the porch to smoke. The wife testified that she planned on moving to Florida after the divorce.

Analysis

The trial court awarded the wife the personal items she had requested, $20,000 as alimony in gross, a car worth $6,000, and $350 per month in periodic alimony for 10 years. The trial court awarded the husband the real property, which has a net value of $110,409.89 (using the tax-appraised value of the property); both of his retirement accounts, valued at $72,847 (including only the present value of the pension account accumulated during the parties’ marriage), see Ala.Code 1975, § 30-2-51(b); the parties’ bank accounts, valued at $13,761; a truck, valued at $4,000; and various items of personal property valued at $15,500. Our calculations reveal that the marital property awarded to the husband has a net value of $196,517.89, or approximately 88.3% of the marital estate, and that the marital property awarded to the wife has a value of $26,000, or approximately 11.7% of the marital estate.

We acknowledge that this court has reversed judgments effectuating such a disproportionate division of property. See, e.g., Mullis v. Mullis, 994 So.2d 934, 940 (Ala.Civ.App.2007); Cunningham v. Cunningham, 964 So.2d 678 (Ala.Civ.App.2007); Kaufman v. Kaufman, 934 So.2d 1073 (Ala.Civ.App.2005); and Adams v. Adams, 778 So.2d 825 (Ala.Civ.App.2000). However, “there 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). “Even if a property division favors one party over the other, that is not, in and of itself, an abuse of discretion.” Jordan v. Jordan, 547 So.2d 574, 576 (Ala.Civ.App.1989). Instead, the trial court must consider many factors, including those set forth in Courtright, supra, in determining whether the division of property is equitable under the particular circumstances of the case. Jordan, 547 So.2d at 576; and TenEyck, 885 So.2d at 154.

We find it notable that, in the present case, substantial evidence indicates that the wife made only an insignificant economic contribution to the marriage. The wife used her income primarily as her separate money throughout the marriage, using that money mostly to pay for her personal expenses and for the personal expenses of her children from a previous relationship. The evidence indicates that all the parties’ major assets had been accumulated as a result of the husband’s working long hours as a miner. It was undisputed that the husband had made all the payments relating to the real property, including making the payments on the home-equity line of credit, which had been used to purchase the Chrysler automobile. The husband also testified that he had paid the household bills and had paid some of the wife’s personal expenses and some of the expenses of her younger child from a previous relationship. On the other hand, even before the wife became disabled, she had worked only sporadically.

Further, there is no evidence to indicate that the wife made any significant noneco-nomic contribution to the parties’ marriage. In fact, the evidence indicated that the wife attempted to shift the responsibility for caring for the husband during his injury to her mother. Further, the husband testified that, during the last year of the parties’ marriage, all the wife did was lie around the house in her pajamas and go onto the porch to smoke.

Despite the lack of any significant contribution to the acquisition of the marital property, the wife leaves the marriage with property of a value far greater than the property she owned upon entering the marriage. Although neither party will be able to maintain their former standard of living because they are now both disabled, the wife presented no evidence indicating that she will be unable to meet her financial needs with the property and alimony she was awarded. Based on the foregoing, we conclude that the trial court did not exceed its discretion in determining the “ ‘value of [the wife’s] interest in the marriage.’ ” Lo Porto, 717 So.2d at 421 (quoting Pattillo, 414 So.2d at 917) (emphasis omitted). Thus, we affirm the trial court’s judgment.

AFFIRMED.

PITTMAN, BRYAN, and THOMAS, JJ., concur.

THOMPSON, P.J., concurs in the result, without writing.

On Application for Rehearing

MOORE, Judge.

On application for rehearing, Deborah Lynn Weeks (“the wife”) argues that this court’s analysis of her economic and noneconomic contributions to her marriage to Michael Roy Weeks (“the husband”) is a “radical departure from existing well[-]established law and, in effect, diminished the trial court’s consideration of such factors as the parties[’] ‘station in life,’ the parties[’] ‘future prospects,’ the parties!’] ‘standard of living’ and ‘each party’s potential for maintaining that standard of living after the divorce.’ ” Appellant’s Application for Rehearing (quoting Courtright v. Courtright, 757 So.2d 453, 456 (Ala.Civ.App.2000), and Daugherty v. Daugherty, 579 So.2d 1377, 1379 (AIa.Civ.App.1991)). To the contrary, as this court pointed out in our opinion on original submission, Alabama law has long held that “ ‘[t]he purpose of the division of marital property is to give “each spouse the value of [his or her] interest in the marriage ....’” Lo Porto v. Lo Porto, 717 So.2d 418, 421 (Ala.Civ.App.1998) (quoting Pattillo v. Pattillo, 414 So.2d 915, 917 (Ala.1982)).” 27 So.3d 526, 529 (Ala.Civ.App.2008). It is definitely appropriate for a court to consider the economic and noneconomic contributions a spouse makes to the marriage in order to evaluate that spouse’s marital interest. This court did not err in any respect by analyzing the wife’s financial and other contributions to the parties’ marriage to determine whether the trial court had exceeded its discretion in dividing the parties’ marital property.

This court further disagrees with the wife’s assertion on rehearing that, by analyzing her contributions to the marriage, we necessarily diminished consideration of other factors pertinent to the determination of an equitable property division. In our opinion, this court specifically noted that, in fashioning an equitable property division, a trial court may consider other factors, including those set out in Courtright, supra. We point out, however, that those factors are not and never have been exclusive. See Huntress v. Huntress, 555 So.2d 1103, 1105 (Ala.Civ.App.1989). A trial court is not bound to focus solely on the health or future prospects of the parties to the exclusion of other pertinent factors. In the present case, this court merely considered the totality of the circumstances in concluding that the trial court had properly divided the parties’ property, although its division seemed disproportionate to the wife.

The wife also argues that the logical conclusion to be drawn from this court’s opinion is that a stay-at-home spouse, who brings no substantial assets into the marriage, is entitled to receive nothing in a division of property. We disagree. Had the wife stayed at home, but still contributed to the marriage, and had she not used her income almost entirely for her own benefit, our determination of whether the trial court had exceeded its discretion would have been different. But that is not the case. As this court has previously held, a trial court has wide discretion “to consider the unique facts and circumstances of each individual case” in making a property division. Robinson v. Robinson, 840 So.2d 180, 183 (Ala.Civ.App.2002).

The wife argues further that this court’s conclusion — that she used most of her money to pay for her personal expenses and the personal expenses of her children — is inaccurate. She cites her testimony in support of her argument. However, the husband’s testimony contradicted the wife’s testimony on that issue, and this court cannot resolve issues of disputed fact. See, e.g., Friedman v. Friedman, 971 So.2d 23, 28 (Ala.2007). The wife also argues that this court committed a factual error by stating that the trial court had awarded the wife the personal items she had requested. She argues that the trial court awarded her only the items she wished to take to Florida with her; however, we conclude that the trial court could have inferred from the wife’s statement that the personal property she wanted to take with her to Florida was, in fact, all the personal property she wanted.

The wife does point out one factual error in this court’s opinion on original submission. We stated that the husband had paid for the wife’s son’s ear and for his car insurance. In fact, the husband testified that he had paid only the wife’s son’s insurance. That error, however, does not change our conclusion in this case.

For the foregoing reasons, the wife’s application for rehearing is overruled.

APPLICATION OVERRULED.

PITTMAN, BRYAN, and THOMAS, JJ., concur.

THOMPSON, P.J., concurs in the result, without writing.

      . In her brief to this court, the wife does not include the value of her jewelry in her determination of the value of the assets she was awarded. She asserts that her jewelry is not marital property, either because it was owned by her before the marriage or because it was given to her as gifts by the husband during the marriage. For purposes of our calculations, we assume, without deciding, that the jewelry was the wife's separate property, and we do not include the jewelry as a marital asset in our analysis.


author: PITTMAN, Judge. THOMPSON, Presiding Judge,

text:
    SOLOMON MOTOR COMPANY v. Earnest DEAN.
    2060957.
    Court of Civil Appeals of Alabama.
    Dec. 19, 2008.
    Rehearing Denied June 5, 2009.
    Certiorari Denied Aug. 21, 2009 Alabama Supreme Court 1081204.

      R. Austin Huffaker, Jr., of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellant.
    Jere C. Segrest and Kevin Walding of Hardwick, Hause, Segrest & Walding, Do-than, for appellee.
   PITTMAN, Judge.

Solomon Motor Company (“the employer”) appeals from a judgment of the Houston Circuit Court in favor of Earnest Dean (“the employee”) on his claim against the employer under the Alabama Workers’ Compensation Act, Ala. Code 1975, § 25-5-1 et seq. (“the Act”). In its judgment, the trial court determined, in pertinent part, that the employee was permanently and totally disabled as a result of a work-related injury to his right knee and awarded benefits under the Act commensurate with a permanent and total disability. Because the facts of this case would support only an award of permanent-partial-disability benefits based upon the schedule of injuries in the Act, see generally Ala.Code 1975, § 25-5-57(a)(3)a., we reverse and remand.

In June 2005, the employee sued the employer, asserting that on or about July 16, 2003, while performing work for the employer as a master mechanic and transmission specialist, he had “suffered an injury to his right knee and leg when he accidentally fell on, over, or upon an air-hose”; he averred that he had been permanently and totally disabled as a result of his injury or, in the alternative, that he had been permanently partially disabled, and he requested an award of benefits under the Act. The employer answered the complaint and admitted that the employee had suffered a workplace injury and that the Act applied, but the employer denied the employee’s allegations as to the extent of his injury and affirmatively averred, among other things, that the employee’s right to compensation was limited by the seheduled-injury provisions of the Act. The employer admitted during the discovery process to having been properly notified of the employee’s injury, and the parties entered into express stipulations concerning the employee’s average weekly wage, his compensation rate, and the extent of the employer’s previous payments of temporary-total-disability benefits.

After an ore tenus proceeding, during which the trial court received a number of evidentiary exhibits and heard testimony from the employee, his wife, and two vocational expert witnesses, the trial court entered an interim order on March 5, 2007, opining that the employee was permanently and totally disabled but setting a subsequent hearing to determine whether the employee’s compensation should be limited to the schedule. After holding that hearing, the trial court entered a final judgment again determining the employee to be permanently and totally disabled and awarding nonscheduled compensation under the Act for a permanent and total disability. Following the trial court’s denial of the employer’s postjudgment motion to alter, amend, or vacate, the employer appealed.

The employer asserts that the trial court erred in awarding benefits under the Act for a permanent and total disability because, the employer says, the employee’s injury should have been treated as a “scheduled-member” injury under the provisions of the Act pertaining to permanent partial disabilities. See Ala.Code 1975, § 25-5-57(a)(3). In considering that issue, we are guided by the pertinent standard of appellate review established by our legislature in AIa.Code 1975, § 25 — 5—81(e)(1) and (2): although our review of “the standard of proof ... and other legal issues ... shall be without a presumption of correctness,” appellate review of “pure findings of fact” is subject to the caveat that reversal of a judgment based upon “pure findings of fact” by a trial court should not occur if those findings are “supported by substantial evidence.” See also Gold Kist, Inc. v. Porter, [Ms. 2060662, October 31, 2008] — So.3d —, —(Ala.Civ.App.2008).

In this court’s opinion in Norandal U.S.A., Inc. v. Graben, [Ms. 2061070, October 17, 2008], Judge Moore noted five salient points that are equally pertinent to this appeal: (1) that “[f]or purposes of workers’ compensation, a knee injury is treated as an injury to the leg” (18 So.3d at 409); (2) that such injuries “are ordinarily compensated under § 25-5-57(a)(3), Ala.Code 1975” (18 So.3d at 409); (3) that under the schedule set forth in that Code section, see Ala.Code 1975, §§ 25-5-57(a)(3)a.l6. & 25-5-57(a)(3)d., an injured employee is entitled to a proportionate award for a partial loss of use of a leg based upon a benchmark of “200 weeks of compensation for the total loss of use of a leg,” which award “is intended by statute to be ‘in lieu of all other compensation’” (18 So.3d at 410) (quoting § 25-5-57(a)(3)d.); (4) that notwithstanding those principles, caselaw provides that an injury to the knee may be compensated outside the schedule if the effects of the loss of the member extend to other parts of the employee’s body and interfere with their efficiency (18 So.3d at 410); and (5) that proof that the loss of a member “interferes with the efficiency” of other parts of one’s body under that exception requires that an employee demonstrate “that the normal effective functioning of another part of his or her body has been hindered or impeded due to the loss of the member” (18 So.3d at 410).

As directed by § 25-5-81 (e), we must now review the record to ascertain whether the trial court’s determination that the employee was entitled to compensation outside the schedule of injuries set forth in Ala.Code 1975, § 25-5~57(a)(3), is supported by substantial evidence. The employee, who was 63 years old at the time of trial, testified that he had suffered from arthritis and had hurt his back on two occasions before his workplace injury, but he had been able to return to full duty performing work on automobile transmissions and brakes; in addition, the employee’s medical records indicate that as early as 1991 he had been diagnosed with “bilateral degenerative joint disease of the medial aspect of’ his knees that was causing “gradually worsening” pain. On the date of his accident, the employee recounted, he had been working on the brakes of a particular automobile when he stepped on a stray air hose, tripped, and fell to the floor; although the employee fell on his left knee, his right leg apparently extended abnormally during the fall because, the employee testified, he “felt something pop in [his] right knee” and then he felt a sensation of pain “just like somebody had stuck a knife in [his] knee.”

After a primary-care clinic had declined to provide care for the employee’s right knee beyond taking X-ray images, the employee was referred to a group of specialist physicians that included Dr. Keith Gran-ger. The employee was diagnosed as having degenerative joint disease with a tear of the medial meniscus, i.e., knee cartilage, that caused pain aggravated by activity, and the employee subsequently underwent arthroscopic surgery to clean the affected knee joint. However, according to the transcript of Dr. Granger’s deposition testimony, which was admitted into evidence at trial, the employee continued to suffer from pain in his right knee after the surgery that was, according to Dr. Granger, “primarily from the degenerative joint disease.”

In addition to his right-knee symptoms, the employee testified at trial that he had “develop[ed] problems with [his] left knee and with [his] back” after sustaining the injury to his right knee, and the employee testified to having had complete replacements of both of his knee joints and having undergone “two shots” to alleviate back pain in addition to taking prescription pain medication for a period of over a year afterwards. However, the employee admitted at trial that he was taking the same over-the-counter analgesic medication as he was taking before his injury. Moreover, at his deposition, Dr. Granger testified that the employee’s “job injury resulted only [in] the medial meniscus tear only of the right knee,” and he opined that the employee’s left-knee pain stemmed from the same degenerative condition that had existed in 1991 and “absolutely had nothing to do with the on-the-job injury that I know of.” With specific regard to the employee’s subsequent back-pain complaints, Dr. Granger testified that he “[did] not think that the on-the-job injury ... [was] related to this back problem.” Although Dr. Granger did acknowledge that an altered gait from knee conditions “can sometimes exacerbate or aggravate preexisting problems such as spinal stenosis,” he added that he “ha[d]n’t seen” any such exacerbation or aggravation in the employee’s case and that “probably” none existed.

The pertinent question, as Norandal indicates, is whether the employee adduced substantial evidence establishing that the effects of his right-knee injury, which un-disputedly resulted in some quantum of loss of use of a scheduled member (his right leg), extend to other parts of the employee’s body and interfere with their efficiency, i.e., whether the employee has shown “that the normal effective functioning of another part of his ... body has been hindered or impeded” as a result of that injury. Norandal, 18 So.3d at 410 The employee contends that the evidence of record indicating that his right-knee injury had effects in his left knee and in his back satisfies that burden.

The employee’s position is not well taken. First, assuming, without deciding, that the employee’s left-knee replacement can properly be causally traced to the workplace injury rather than solely to a degenerative process, it is well settled that when, as here, the schedule sets forth compensation amounts both for a loss of one particular member (such as a single arm or leg) and for a loss of multiple members of the same class (such as both arms or legs), effects upon another member of the same class as the injured member do not avoid the schedule. See Stone & Webster Constr., Inc. v. Lanier, 914 So.2d 869, 876-77 (Ala.Civ.App.2005) (knee injury affecting other knee); General Elec. Co. v. Baggett, 1 So.3d 1015, 1017 (Ala.Civ.App.2007) (same); Alabama Workmen’s Comp. Self Insurers Guar. Ass’n v. Wilson, 993 So.2d 451, 455 (Ala.Civ.App.2006) (arm injury affecting other arm). Thus, any left-knee effects resulting from the employee’s right-knee injury are not of legal significance.

In contrast, this court has held that when a work-related leg injury causes adverse effects, such as might occur by means of alteration of one’s gait, upon a portion of the body that is not enumerated in the schedule, such as the back, an injured employee’s compensation is not limited to that set forth in the schedule. For example, in Norandal, we affirmed a judgment awarding permanent and total disability benefits under the Act based upon evidence establishing that a worker who had suffered a right-knee injury routinely experienced chronic pain extending into his low back and hip that worsened with prolonged walking and required that worker to rest in various postures after prolonged walking or standing. In accord is Boise Cascade Corp. v. Jackson, 997 So.2d 1042, 1047 (Ala.Civ.App.2008), in which medical evidence was adduced that a worker’s back pain was caused by his antalgic gait, which was itself a product of his workplace injury, and Pipeline Technic, L.L.C. v. Mason, 6 So.3d 1176, 1180 (Ala.Civ.App.2008), in which a similar judgment was affirmed in light of evidence indicating that a worker’s foot injury “cause[d] him to alter his gait” so as to, in turn, “eause[ ] him daily back pain and swelling.” On the other hand, in Chadwick Timber Co. v. Philon, 10 So.3d 1014, 1021 (Ala.Civ.App.2007), we held that a permanent-total-disability award was improper when the worker alone had testified that his leg injury had caused him to suffer back pain; the worker’s treating physician, in contrast, had testified that it was unlikely that that back pain had resulted from a change in the worker’s gait.

In this case, the employee’s testimony indicates that although he currently takes nothing more than over-the-counter analgesic medicines, he did experience “back problems” after his right-knee injury that were of a sufficient magnitude to warrant two injections of pain medication and ingestion of prescription analgesics. However, the employee did not testify that his back pain had persisted after that course of medication; moreover, as we have noted, Dr. Granger expressly opined that the employee’s back pain was not caused by his right-knee injury. Under Alabama law, “[i]n order to take [a] case outside the schedule, the effects of the injury must extend to the other parts of the body on a permanent basis ”; “[i]f the scheduled injury only temporarily affects another part of the body, but permanently affects solely the scheduled member, the schedule is and should be the exclusive remedy for the permanent disability.” 1 Terry A. Moore, Alabama Workers’ Compensation § 14:12 (Supp.2008) (citing, among other cases, E.C. Corp. v. Kent, 618 So.2d 1357, 1358-59 (Ala.Civ.App.1992) (holding that worker was limited to scheduled compensation for knee injury even though complications from certain initially prescribed medications had temporarily caused side effects in the worker’s ears)); see also Honda Mfg. of Alabama, LLC v. Alford, 6 So.3d 22, 28 (Ala.Civ.App.2007) (reversing permanent-total-disability award in light of evidence that worker’s post-knee-injury back pain was merely episodic; knee injury was not shown to be causally connected to that back pain). Thus, in the language of Norandal, the record supports the proposition that “the normal effective functioning” of the employee’s back “has been hindered or impeded” only by a degenerative process, not by the right-knee injury.

Based upon the foregoing facts and authorities, we conclude that the trial court erred in awarding benefits to the employee outside of the schedule in the Act. We reverse that court’s judgment and remand the cause for the entry of a judgment or for further proceedings consistent with this opinion.

In reversing on the substantive merits of the sole issue raised by the employer, we necessarily reject the proposition, advanced by the special writing in this case, that we should remand solely to direct the trial court to more explicitly state its rationale for making a permanent-total-disability award. First, the employer has not raised any noncompliance with Aa. Code 1975, § 25-5-88, as an issue, and it is a fundamental maxim of appellate procedure that “[a]n appellate court will consider only those issues properly delineated as such and will not search out errors which have not been properly preserved or assigned.” Ex parte Riley, 464 So.2d 92, 94 (Ala.1985). Second, a mere pro forma reversal when the record does not contain substantial evidence to support a permanent-total-disability award arguably would not “assure the just, speedy, and inexpensive determination of [this] appellate proceeding on its merits” (see Rule 1, Aa. RApp. P.). Finally, it is doubtful that § 25-5-88 has been violated so as to mandate reversal; as we noted in Werner Co. v. Williams, 871 So.2d 845 (Ala.Civ.App.2003), § 25-5-88 does not require “comment on every item of evidence, each word of testimony, and every line of every deposition offered in evidence”; “[t]o the extent some of the findings of the trial court may be meager or omissive, .... we [are] merely [to] conduct the same review as we would of more specific factual findings to determine whether,” as we have done in this case, “the ultimate finding made by the trial court is supported by substantial evidence.” 871 So.2d at 852-53.

REVERSED AND REMANDED.

THOMAS, J., concurs.

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

THOMPSON, P.J., concurs in the judgment of reversal but dissents as to the instructions on remand, with writing, which MOORE, J., joins.

THOMPSON, Presiding Judge,

concurring in the judgment of reversal but dissenting as to the instructions on remand.

I agree that the judgment should be reversed and the ease remanded; however, I respectfully dissent from the instructions the main opinion gives on remand. Section 25-5-88, Ala.Code 1975, requires that a workers’ compensation judgment contain “a statement of the law applicable to the case, the facts as they relate to the law, and the resulting conclusions.” Dees v. Daleville Florist, 408 So.2d 155, 156 (Ala.Civ.App.1981). Substantial compliance with § 25-5-88 will suffice. Id.; see also Roberts v. Veazey, 637 So.2d 1350, 1351 (Ala.Civ.App.1994). Even so, the trial court must reach a determination of each issue presented to it. Golden Poultry Co. v. Roper, 660 So.2d 1311, 1313 (Ala.Civ.App.1995).

In this case, the trial court heard arguments and received evidence on the issue whether Earnest Dean’s injury was a scheduled injury under § 25-5-57(a)(3), Ala.Code 1975, or whether that injury affected other parts of his body so as to remove compensation from the confines of that schedule; that issue was the ultimate issue in this action. In its March 5, 2007, order, the trial court made a finding that Dean was permanently and totally disabled, and it adopted and ratified that finding in its April 24, 2007, judgment. However, the trial court failed to make any findings of fact or legal conclusions in either its March 5, 2007, order or the April 24, 2007, judgment in support of its decision that Dean’s injury should be compensated outside the schedule in § 25-5-57(a)(3).

Pursuant to § 25-5-88, a trial court in a workers’ compensation action “ ‘is required to make findings of fact and conclusions of law, and these findings should encompass each and every issue presented to and litigated in the trial court; where this is not done, the judgment should be reversed.’ ” Ex parte Valdez, 636 So.2d 401, 404 (Ala.1994) (quoting Thompson & Co. Contractors v. Cole, 391 So.2d 1042, 1045 (Ala.Civ.App.1980)). Given the failure of the trial court to make a determination as to the ultimate issue in Dean’s workers’ compensation action, I would reverse the judgment and remand the cause to the trial court for the entry of a judgment in compliance with § 25-5-88, Ala.Code 1975.

MOORE, J., concurs.

       Note from the reporter of decisions: On February 20, 2009, on application for rehearing, the Alabama Court of Civil Appeals withdrew the October 17, 2008, opinion in Norandal U.S.A., Inc., and substituted another one. The October 17, 2008, opinion affirmed the judgment of the trial court; the substituted opinion reverses that judgment and remands the case. Norandal U.S.A., Inc. v. Graben, 18 So.3d 405 (Ala.Civ.App.2009). The quoted language appears in the substituted opinion.