author: BRYAN, Justice.

text:
    EX PARTE D.B. and K.S.
    (In re D.B. and K.S. v. K.S.B.)
    1160541
    Supreme Court of Alabama.
    September 22, 2017
    Kenneth R. Raines and W. Lee Webb of Raines Law Firm, Fairhope, for petitioners.
    Michael E. Mark, Mobile, for respondent.
   BRYAN, Justice.

D.B. and K.S. petitioned this Court for a writ of certiorari seeking review of the judgment of the Court of Civil Appeals affirming, without an opinion, a custody-modification judgment awarding K.S.B. ("the mother") custody of her daughter ("the child"). D.B. v. K.S.B. (No. 2150850, February 3, 2017), 241 So.3d 669(Ala. Civ. App. 2017) (table). We granted the petition, and we reverse the judgment of the Court of Civil Appeals and remand the cause for further proceedings.

Facts and Procedural History

The child was born in April 2007. D.B., the child's maternal grandfather ("the grandfather"), and K.S., the child's maternal stepgrandmother ("the stepgrandmother") (the grandfather and stepgrandmother are hereinafter referred to collectively as "the grandparents"), petitioned for custody of the child after the mother telephoned the grandfather in May 2010 and asked him to come get the child because she was "being mean" to the child. The mother did not appear at the hearing on the grandparents' custody petition, and the juvenile court awarded custody of the child to the grandparents in August 2010.

On February 29, 2016, the mother filed a petition to modify custody. Based on the juvenile court's August 2010 custody judgment in favor of the grandparents, it is undisputed that, in order to succeed in her request to modify custody, the mother was required to meet the well settled custody-modification standard set forth in Ex parte McLendon, 455 So.2d 863 (Ala. 1984) :

" 'Where a parent has transferred to another [whether it be a non-parent or the other parent], the custody of h[er] infant child by fair agreement, which has been acted upon by such other person to the manifest interest and welfare of the child, the parent will not be permitted to reclaim the custody of the child, unless [s]he can show that a change of the custody will materially promote h[er] child's welfare.'
" Greene v. Greene, 249 Ala. 155, 157, 30 So.2d 444, 445 (1947), quoting the Supreme Court of Virginia, Stringfellow v. Somerville, 95 Va. 701, 29 S.E. 685, 687, 40 L.R.A. 623 (1898).
"Furthermore,
" '[This] is a rule of repose, allowing the child, whose welfare is paramount, the valuable benefit of stability and the right to put down into its environment those roots necessary for the child's healthy growth into adolescence and adulthood. The doctrine requires that the party seeking modification prove to the court's satisfaction that material changes affecting the child's welfare since the most recent decree demonstrate that custody should be disturbed to promote the child's best interests. The positive good brought about by the modification must more than offset the inherently disruptive effect caused by uprooting the child. Frequent disruptions are to be condemned.'
" Wood v. Wood, 333 So.2d 826, 828 (Ala. Civ. App. 1976).
"It is not enough that the parent show that she has remarried, reformed her lifestyle, and improved her financial position. Carter v. Harbin, 279 Ala. 237, 184 So.2d 145 (1966) ; Abel v. Hadder, 404 So.2d 64 (Ala. Civ. App. 1981). The parent seeking the custody change must show not only that she is fit, but also that the change of custody 'materially promotes' the child's best interest and welfare."

455 So.2d at 865-66.

The brief record from the hearing on the mother's petition to modify custody contains the following pertinent evidence, presented ore tenus. At the time of the hearing, the child was nine years old and had been living with the grandparents since she was three years old. In the six years the child had been in the custody of the grandparents, the mother had begun regularly visiting the child only four months before the hearing. According to the mother, during those four months, she and the child had developed "a pretty strong bond."

The mother presented evidence indicating that she had a history of mental illness and drug abuse, which led to her being unable to care for the child in 2010. After the mother asked the grandparents to care for the child, she was imprisoned for two years; she was released in 2012. The mother testified that she had been misdiagnosed as bipolar for several years but that she was now able to control her mental condition-borderline personality disorder -with medication. The mother further testified that she had been drug-free, other than medication for her mental condition, for six years preceding the hearing. In December 2014, the mother married Y.B., an Army veteran. Y.B. had been diagnosed with post-traumatic stress disorder, and, according to the mother, Y.B. receives treatment for that condition approximately once a year. The mother stated that Y.B. is supposed to seek treatment more often but they had "kind of slacked up on it."

The mother and Y.B. live in a house Y.B. owns in Spanish Fort. The mother testified that she has two children in addition to the child and that both of those children live with her in the home she shares with Y.B. Her son, who was 11 years old at the time of the hearing, is autistic and had lived with the mother for only one year before the hearing. The mother testified that her son was born in 2005, that she was involved in drugs at that time, and that she decided it was in her son's best interest for him to live with her mother, the son's maternal grandmother. The maternal grandmother and her husband adopted the son in 2007, but, beginning approximately one year before the hearing in the present case, the maternal grandmother and her husband allowed the son to begin living with the mother. The mother testified that the child and her son "have a wonderful relationship," that they are "elated" when they are together, and that "the love between ... them is very strong." The mother also has a six-month-old daughter with Y.B.

The maternal grandmother testified that the mother had turned her life around after she was released from prison and that she had married a wonderful man, so she decided to let the son live with the mother and her husband on a trial basis. According to the maternal grandmother, that has worked out very well, and she thinks the mother would be able to care for another child in her home.

When asked why she believed it was in the best interest of the child for her to be awarded custody, the mother stated:

"I think that ... a little girl needs her mother. I think that I can care for her and ... love her just as much as where she's been for the last six years. They have taken good care of her. I do not argue that. They have taken good care of her but I can take care of her as well. She is ... my daughter and I can take care of her."

Additionally, she stated that the child has a good relationship with her siblings and that it would be better for the child to live with her siblings and her mother.

The grandfather testified that, in the six years he and the stepgrandmother had custody of the child, they had devoted all of their time and effort to caring for the child and the stepgrandmother had chosen not to return to work so she could stay home to care for the child. He stated that the mother did not ask to see the child after she was released from prison and that, though he offered, the mother did not come to live with him, the stepgrandmother, and the child after she was released from prison.

The stepgrandmother testified that she had been married to the grandfather for 28 years and that they loved the child "to death." The stepgrandmother potty-trained the child after the grandparents obtained custody, and she became actively involved in the child's schooling; she testified that she had taught "smart-board lessons" in the child's classroom, that she had been on all of the child's field trips in the past year, that she had served as "room mom" and an "assistant room mom," and that she had joined the PTA. The grandparents live in a neighborhood in Daphne where the child has friends and they take the child to church with them. The stepgrandmother stated that she had been diagnosed with breast cancer in March 2016. However, the record reveals only the following evidence on that subject:

"[The grandparents' attorney]: Ma'am, in your health situation right now, can you describe that to the court?
"[The stepgrandmother]: Well, I was diagnosed in March with breast cancer. I'm undergoing chemotherapy. And I finish in-the tumor's shrinking. And I finish in August.[ ] And I will be cured.
"[The grandparents' attorney]: Has that in any way affected your ability to take care of [the child]?
"[The stepgrandmother]: No, no. I have no side effects except no hair."

On June 17, 2016, the juvenile court entered a final judgment awarding the mother custody of the child after finding that she had met the custody-modification standard set forth in Ex parte McLendon, and the court set forth a schedule for a gradual transfer of physical custody from the grandparents to the mother. The grandparents filed a postjudgment motion, arguing that the mother had presented insufficient evidence to meet her burden under Ex parte McLendon. At the hearing on their postjudgment motion, the juvenile court stated:

"I am not going to vacate the order. I feel like ... the testimony bore out that the situation at the grandparents' home was not what it once was, that there's been some illness, that there's been some other things going on at the house that would make it such that, not only had mom's situation improved, but the grandparents' situation had diminished."

(Emphasis added.)

The grandparents appealed the juvenile court's custody-modification judgment, and the Court of Civil Appeals affirmed the judgment by issuing an order without an opinion pursuant to Rule 53, Ala. R. App. P. This Court granted the grandparents' petition for certiorari review to consider whether the Court of Civil Appeals' decision conflicts with Ex parte McLendon, supra.

Discussion

The grandparents contend that there was insufficient evidence to support the juvenile court's judgment and that the Court of Civil Appeals' affirmance of that judgment conflicts with Ex parte McLendon. In its no-opinion affirmance in this case, the Court of Civil Appeals cited, among other cases discussed herein, K.U. v. J.C., 196 So.3d 265, 268-69 (Ala. Civ. App. 2015) ; the part of that case to which the pinpoint citation in the Court of Civil Appeals' no-opinion affirmance directs us provides, in pertinent part:

" ' "Where a parent has transferred to another [whether it be a nonparent or the other parent], the custody of his [or her] infant child by fair agreement, which has been acted upon by such other person to the manifest interest and welfare of the child, the parent will not be permitted to reclaim the custody of the child, unless he [or she] can show that a change of the custody will materially promote his [or her] child's welfare." '
" Greene v. Greene, 249 Ala. 155, 157, 30 So.2d 444, 445 (1947) (quoting Stringfellow v. Somerville, 95 Va. 701, 29 S.E. 685, 687 (1898) ). To meet that burden, the party petitioning for modification must prove to the satisfaction of the trial court (1) that the circumstances upon which the original judgment was based have changed, (2) that he or she is fit to act as a custodian for the child, and (3) that ' "the positive good brought about by the modification ... more than offset[s] the inherently disruptive effect caused by uprooting the child." ' Ex parte McLendon, 455 So.2d 863, 865 (Ala. 1984) (quoting Wood v. Wood, 333 So.2d 826, 828 (Ala. Civ. App. 1976) ). On appeal, this court presumes the correctness of a judgment based upon evidence presented ore tenus. Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala.1996).
" ' "[W]e will not reverse [the judgment] unless the evidence so fails to support the determination that it is plainly and palpably wrong, or unless an abuse of the trial court's discretion is shown. To substitute our judgment for that of the trial court would be to reweigh the evidence. This Alabama law does not allow." '
" Ex parte Perkins, 646 So.2d 46, 47 (Ala. 1994) (quoting Phillips v. Phillips, 622 So.2d 410, 412 (Ala. Civ. App. 1993) ). However, this court reviews the interpretation and application of the McLendon standard, which involve pure questions of law, de novo. Gallant v. Gallant, 184 So.3d 387, 401 (Ala. Civ. App. 2014)."

After a thorough review of the record, we agree with the grandparents that the Court of Civil Appeals' decision in this case conflicts with the custody-modification standard set forth in Ex parte McLendon. Even if we assume that there was sufficient evidence to support a finding that there had been a material change in circumstances since the August 2010 custody judgment awarding custody to the grandparents and that the mother is now fit to have custody of the child, see K.U., supra, there was insufficient evidence to support a conclusion that a change in custody would materially promote the best interest and welfare of the child so that the positive good brought about by the modification would more than offset the inherently disruptive effect of the change in custody.

Initially, we must address the emphasized part of the above-quoted statement made by the juvenile court at the hearing on the grandparents' postjudgment motion because it provides insight into the juvenile court's decision to modify custody and it explicitly provides the court's reasoning for denying the grandparents' postjudgment motion. The juvenile court refused to vacate the custody-modification judgment because it believed that the evidence indicated that, in addition to the stepgrandmother's "illness," there were "other things going on at the [grandparents'] house that would make it such that ... the grandparents' situation had diminished." However, we have carefully reviewed the record in this case and we have found no evidence to support that conclusion. Indeed, the only evidence in the record indicating that something was "going on" at the grandparents' house was evidence indicating that the stepgrandmother was diagnosed with breast cancer shortly after the mother filed her petition to modify custody of the child.

Thus, we are left to consider the evidence that was actually presented to the juvenile court and to determine whether that evidence supported the juvenile court's implicit conclusion, which is inherent in the court's finding that the mother met her burden pursuant to Ex parte McLendon, that a change in custody would materially promote the best interest and welfare of the child so that the positive good brought about by the change in custody would more than offset the inherently disruptive effect of the change. The mother, in her brief to this Court, argues that, in light of the evidence that the stepgrandmother had been diagnosed with cancer and that, if the mother was awarded custody, the child would have the opportunity to live with her siblings, there was sufficient evidence to support the juvenile court's judgment.

In support of its no-opinion order affirming the juvenile court's judgment, the Court of Civil Appeals cited Scroggins v. Templeton, 890 So.2d 1017, 1022 (Ala. Civ. App. 2003). In that case, the father had custody of the parties' two children, who were eight and seven years old, and the mother petitioned to modify custody. The trial court determined that the mother met the McLendon standard based on the fact that, since he had been awarded custody, the father had become disabled and had a negative change in temperament. The evidence indicated that the father had injured his back in a work-related accident and that this injury was having a negative impact on the children. For example, the father was no longer able to run, bend, or lift more than 10 pounds, and the children had been enlisted to do household chores the father was no longer able to do. Additionally, the mother presented evidence indicating that the children were "dirty and unkempt," that the father's house was not clean, and that one child occasionally did not wear underwear when the child did not have time to do laundry. Scroggins, 890 So.2d at 1020. The evidence also indicated that a family member had arranged to take the children to visit other family members for one week, but when they got to the father's house to pick up the children, the father would not allow the eight-year-old child to go on the trip because he needed her to help him; the father was unable physically to get up at that time. The father appealed the custody-modification judgment in favor of the mother, and the Court of Civil Appeals affirmed. The Court of Civil Appeals held that the Ex parte McLendon burden was satisfied because the evidence indicated that "the father's parenting skills were adversely affected by his disability," Scroggins, 890 So.2d at 1022, while the mother had "remarried, obtained full-time employment, and moved into a new house close to the father and the children." 890 So.2d at 1023.

To the extent, if any, that the Court of Civil Appeals cited Scroggins in its no-opinion affirmance to support a conclusion that the juvenile court could have considered the stepgrandmother's cancer diagnosis as the basis for concluding that a change in custody would materially promote the best interest and welfare of the child, under the circumstances presented in this case, the court erred. The present case is distinguishable from Scroggins because there is no evidence in the record indicating that the stepgrandmother's illness affected her ability to care for the child in any way. For all that appears in the record, the stepgrandmother was well on her way to completing her treatment, and hair loss was her only side effect. In fact, the mother failed to present any evidence indicating that the stepgrandmother's diagnosis affected the child in any way.

Even if we assume that the juvenile court did not believe the stepgrandmother to be as healthy as she indicated she was, there is no evidence from which we could infer that, even under such circumstances, the best interest of the child would be materially promoted by changing custody because doing so would require removing the child from the home of the only stable parental figures she has ever known. The record indisputably shows that the grandparents, for all purposes, have been the child's parents for most of her life; the child calls the stepgrandmother "mom," the grandparents have been actively involved in the child's schooling and her religious upbringing, and, in their own words, the child had become "the center of [their] life." On the other hand, the mother began regularly visiting the child, for the first time in six years, only four months before the juvenile court awarded her custody of the child. Surely, under such circumstances, evidence of a custodial "parent's" cancer diagnosis, in and of itself, is insufficient to support a conclusion that the best interest of the child would be materially promoted by a change in custody, especially where, as here, the child would be removed from a stable home and exemplary caretakers. Accordingly, we cannot conclude that evidence of the stepgrandmother's illness provided a basis for finding that the child's best interest would be materially promoted by a change in custody so as to overcome the inherently disruptive effect of the change.

Regarding the child's ability to live in the same house as her siblings, we note that there is no evidence indicating that this is a situation where the child would have the opportunity to be reunited with siblings she once lived with. The mother's son was adopted by the maternal grandmother and her husband around the same time the child was born, and there is no evidence in the record indicating that the child and the mother's son ever lived together in the same house.

The Court of Civil Appeals also cited M.R.J. v. D.R.B., 34 So.3d 1287, 1291-92 (Ala. Civ. App. 2009), in its no-opinion affirmance to support its judgment in this case. In M.R.J., the mother had custody of the parties' child, and the father petitioned to modify custody. The juvenile court awarded the father custody after concluding that he met the McLendon standard. The evidence indicated that the mother had moved approximately 12 times in 4 years, that she had left the child in a hotel unsupervised while she went to a Wal-Mart department store and stole diapers, that she failed to show up to visitation exchanges, and that she failed to apprise the father of her telephone number when it changed. The evidence indicated that the father, on the other hand, had been employed by the same company for two years, had lived in the same house for one year, and was able to provide for the child better than the mother could. In the part of M.R.J. to which the pinpoint citation in the Court of Civil Appeals' no-opinion order in the present case directs us, the court stated:

"[The father] also testified that the child gets along well with him, his wife, and the child's half siblings. Further, the father's wife testified that she does not work outside the home and that she will be available to care for the child full-time. Based on that evidence, the trial court could have determined that the 'change in custody will materially promote the child's best interests, and that the benefits of the change will more than offset the inherently disruptive effect caused by uprooting the child.' Adams[ v. Adams ], 21 So.3d [1247,] 1252 [ (Ala. Civ. App. 2009) ]."

34 So.3d at 1291-92.

After considering all the facts presented in this case, we must conclude that M.R.J. is distinguishable from the present case and does not support a conclusion that the evidence in this case was sufficient to support a finding that the best interest of the child would be materially promoted by a change of custody. Although there was evidence, like there was in M.R.J., indicating that the child gets along well with her siblings and that she loves them, unlike the overwhelming evidence presented in M.R.J., there is no evidence in the present case of any instability in the grandparents' home or any evidence indicating that the grandparents ever put the child in danger. To the contrary, the evidence indicated that the grandparents were nothing short of model custodians for the child and that they indisputably provided the child with a safe, loving, and stable home.

The facts in this case are remarkably similar to the facts in Ex parte McLendon. In that case, the mother agreed to allow the child's paternal grandparents to have custody of her child when the mother divorced the child's father, and the paternal grandparents had custody of the child for approximately five years. During that time, the mother had infrequent visits with the child, and it was undisputed that the paternal grandparents provided a good home for the child. At the time the mother petitioned to modify custody, she had remarried and was able to provide a stable home for the child; the mother and her new husband also had a child together, the child's half sibling, who lived in their home. The circuit court entered an order modifying custody in favor of the mother, and the Court of Civil Appeals affirmed that order on appeal. This Court, however, reversed the Court of Civil Appeals' judgment. The Court noted that a natural parent loses his or her prima facie right to custody of his or her child "after a voluntary forfeiture of custody or a prior decree removing custody from the natural parent and awarding it to a nonparent." Ex parte McLendon, 455 So.2d at 865 (citing, among other cases, Ex parte Mathews, 428 So.2d 58 (Ala. 1983) ). After setting forth the applicable custody-modification standard, the Court stated:

"We have examined the record carefully and conclude that the parties are equally capable of taking care of the child, and that both would provide her with a nurturing, loving home. The most that the mother has shown is that her circumstances have improved, and she is now able to provide for the child in the same manner in which the grandparents have been providing for her. She failed to show that changing the custody materially promotes the welfare and best interest of the child."

455 So.2d at 866.

The same is true in the present case. The mother conceded that the grandparents had taken good care of the child, and she expressed no concerns in the juvenile court regarding the grandparents as custodians of the child; the mother simply testified that she believed that she could take care of the child and love her just as well as the grandparents. Ex parte McLendon requires more.

We are mindful, of course, of the deference owed to the juvenile court's judgment in light of the ore tenus standard of review. See Ex parte Perkins, 646 So.2d 46, 47 (Ala. 1994). However, for the reasons set forth above, we must conclude that "the evidence so fails to support" the juvenile court's judgment modifying custody of the child "that it is plainly and palpably wrong." K.U., 196 So.3d at 268. Accordingly, that decision must be reversed.

Conclusion

The judgment of the Court of Civil Appeals affirming the juvenile court's judgment modifying custody of the child is reversed and the cause remanded for further proceedings.

REVERSED AND REMANDED.

Stuart, C.J., and Bolin, Parker, Murdock, Shaw, Main, Wise, and Sellers, JJ., concur.

      The stepgrandmother gave this testimony at a hearing conducted on June 15, 2016.

      The mother did not cross-examine the stepgrandmother.

      Although it is clear from the record that the mother's 6-month-old daughter is the child's half sister, it is unclear whether the mother's 11-year-old son is the child's brother or half brother.


source: Caselaw Access Project

author: PITTMAN, Judge.

license: Public Domain

text:
    D.B. and K.S. v. K.S.B.
    2150850
    Court of Civil Appeals of Alabama.
    December 8, 2017
    Kenneth R. Raines and W. Lee Webb of Raines Law Firm, Fairhope, for appellants.
    Michael E. Mark, Mobile, for appellee.
    After Remand from the Alabama Supreme Court
   PITTMAN, Judge.

This court affirmed, without an opinion, the judgment of the Baldwin Juvenile Court awarding K.S.B. custody of her daughter. D.B. v. K.S.B. (No. 2150850, Feb. 3, 2017), 241 So. 3d 669 (Ala. Civ. App. 2017) (table). This court's judgment has been reversed, and the cause remanded, by the Alabama Supreme Court. Ex parte D.B., 255 So.3d 755 (Ala. 2017). On remand to this court, and in compliance with the supreme court's opinion, the judgment of the juvenile court is reversed, and the cause is remanded for the entry of a judgment consistent with the supreme court's opinion.

REVERSED AND REMANDED.

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


author: THOMAS, Judge.

text:
    D.T. v. W.G.
    2160082
    Court of Civil Appeals of Alabama.
    March 3, 2017 As Modified on Denial of Rehearing April 21, 2017 Certiorari Denied August 25, 2017
    Alabama Supreme Court 1160679
    M. Virginia Buck, Northport, for appellant.
    Yuri R. Linetsky, University of Alabama School of Law, Civil Law Clinic, Tuscaloosa, for appellee W.G.
    Luther Strange, atty. gen., and Sharon E. Ficquette, chief legal counsel, and Karen P. Phillips, asst. atty. gen., Department of Human Resources, filed brief of the Alabama Attorney General.
   THOMAS, Judge.

This is the second time that these parties have appeared before this court. See D.T. v. W.G, 255 So.3d 755 (Ala. Civ. App. 2016). As we explained in D.T.:

"In November 2013, the Tuscaloosa Probate Court ('the probate court') entered a judgment approving the adoption of A.S. ('the child') by the child's maternal grandmother, D.T. ('the adoptive parent'). In July 2015, W.G. ('the paternal grandmother') filed a petition seeking an award of grandparent visitation with the child pursuant to Ala. Code 1975, § 26-10A-30. The paternal grandmother did not request that a summons be issued or serve the adoptive parent with the petition by certified mail as required by Rule 4(a)(1), Ala. R. Civ. P. Instead, the paternal grandmother served the petition on the adoptive parent as one would serve a motion under Rule 5, Ala. R. Civ. P., by mailing a copy of the petition to the attorney who had served as the adoptive parent's counsel in the adoption proceeding. After a hearing, which the adoptive parent did not attend, the probate court entered a judgment on November 2, 2015, awarding visitation to the paternal grandmother."

(Footnotes omitted.) We dismissed the adoptive parent's appeal in D.T. based on our conclusion that the November 2, 2015, judgment was void because the paternal grandmother had not properly instituted her action and had not properly served the adoptive parent. D.T., 255 So. 3d at ----.

After the issuance of our opinion in D.T., the paternal grandmother instituted a new action seeking grandparent visitation under Ala. Code 1975, § 26-10A-30, and properly served the adoptive parent. The adoptive parent answered the complaint; in her answer, she included a constitutional challenge to § 26-10A-30. The probate court held a trial on the paternal grandmother's complaint on August 9, 2016, after which it entered a judgment on September 29, 2016, awarding the paternal grandmother visitation with the child. On October 6, 2016, the adoptive parent filed a postjudgment motion, which the probate court denied. The adoptive parent timely appealed the September 29, 2016, judgment to this court.

The trial testimony was either not recorded or not transcribed. Pursuant to Rule 10(e), Ala. R. App. P., the parties have submitted, and the probate court has approved, an agreed statement of the case. The facts contained in the statement of the case are as follows.

The paternal grandmother testified that she was present at the birth of the child in September 2008 and that she visited with the child every other weekend during the first six months of the child's life. According to the paternal grandmother, she had offered financial assistance to the child's parents by supplying them with diapers, wipes, food, and clothing for the child. The paternal grandmother also said that she babysat the child at her home during the day and, on occasion, overnight during the early months of the child's life. After the child's parents, who had lived together but were not married, separated, the paternal grandmother said, the mother and the child had lived in the home of the mother's great-grandmother. The paternal grandmother testified that she had continued to assist the mother with the needs of the child.

In March 2010, when the child was approximately 18 months old, the adoptive parent sought and was granted custody of the child through the Tuscaloosa Juvenile Court. Since that time, the adoptive parent said, the child has resided with her. The adoptive parent formally adopted the child in 2013. At the time of the child's adoption, the child's father was incarcerated.

The paternal grandmother testified that she had hosted birthday parties for the child each year until 2013. She also testified that she had been allowed overnight visits in her own home with the child until January 2012. After the adoption was finalized, the paternal grandmother testified, the adoptive parent began to severely limit her access to the child. During 2013 and 2014, the paternal grandmother said, the adoptive parent allowed only six visits with the child; two of those visits were two-hour supervised visits in the adoptive parent's home. According to the paternal grandmother, after September 2014, the adoptive parent refused to allow the paternal grandmother to visit with the child.

The paternal grandmother testified that her last unsupervised visit with the child was on the child's fifth birthday in 2012. According to the paternal grandmother, when she was returning the child to the adoptive parent's home, she told the child that she might not be able to visit with her for a long time. The paternal grandmother said that the child responded by stating that she "could pack a bag, climb out her window and the [paternal] grandmother could come pick her up." The paternal grandmother said that she had discouraged the child's idea.

The paternal grandmother moved from Demopolis to Louisiana in 2013 for employment-related reasons and to care for her ailing father. The paternal grandmother does not own a home in Louisiana and lives with her fiancé. She testified that the child's father is no longer incarcerated and that he is in a rehabilitation program. She stated that "she would 'absolutely not' restrict access to the child by her biological father during her visits." She also said that she intended to reunite the child with her father at some point in the future. The paternal grandmother stated that she would be present when the child visited with the father.

The adoptive parent explained that she had discontinued overnight visits with the paternal grandmother after the child had told her that, when she had become scared one night, she had gone into the paternal grandmother's bedroom, where the paternal grandmother was in bed with a man to whom the paternal grandmother was not married. The adoptive parent said that the paternal grandmother had admitted that the man had been in her bed and that he had been in her home during other overnight visits.

The adoptive parent said that she had several concerns about allowing the paternal grandmother unsupervised or overnight visitation with the child. She expressed discomfort with the fact that the paternal grandmother lives in another state and about the paternal grandmother's cohabitation with a man to whom she is not married. The adoptive parent also testified that she did not want the child to have contact with her father. The adoptive parent admitted that she had "blocked" the paternal grandmother's telephone number because the adoptive parent had become frustrated over the paternal grandmother's continual text messages requesting telephone visitation with the child and the paternal grandmother's refusal to "take 'no' for an answer."

The probate court made the following factual findings in its judgment:

"[The child] was born on September 18, 2008, to [the biological mother] and [the father] [ (referred to collectively as 'the natural parents') ]. The adoptive parent is the maternal grandmother of the ... child and [the paternal grandmother] is the natural paternal grandmother of the ... child. Both [the adoptive parent and the paternal grandmother] were present at the ... child's birth, and provided substantial support to her natural parents during the ... child's infancy. [The paternal grandmother] had a visible and active presence in the ... child's life since her birth. While the ... child was under the care and custody of her [biological] mother, [the paternal grandmother] visited [the child] every other weekend, assisted the ... child's natural parents financially, provided babysitting services during the day and overnight, gifts, and paid for necessities, such as food, diapers, wipes, and clothes.
"In or about 2010, it became evident that the ... child's natural parents could not provide the necessary care to the ... child. [The adoptive parent], without objection from the [the paternal grandmother], obtained custody of the ... child through the Tuscaloosa County Juvenile Court. After [the adoptive parent] was awarded custody, [the paternal grandmother] continued to see the ... child on a regular basis and continued to provide emotional and financial support to the ... child. [The paternal grandmother] hosted the ... child's birthday parties at [her] home every year until 2013. The testimony of the [adoptive parent] and [the paternal grandmother] clearly established that [the paternal grandmother] had a close and loving relationship with the ... child that benefited the ... child.
"In 2013, unbeknownst to the [paternal grandmother], [the adoptive parent] filed a petition in this Court to adopt the ... child. This Court granted the adoption in Case No. PC-2013-700 on November 12, 2013. After [the adoptive parent] became the ... child's adoptive parent, [she] refused to allow [the paternal grandmother] to maintain her relationship with the ... child. [The adoptive parent] refused to respond to text messages from [the paternal grandmother] seeking to talk to and visit with the ... child for weeks. [The adoptive parent] also blocked [the paternal grandmother's] [tele]phone number because [the adoptive parent] believed that the text messages from [the paternal grandmother] were 'annoying' and because [the paternal grandmother] 'refused to take "no" for an answer,' when it came to [her] requests to see her granddaughter.
"[The adoptive parent] offered no evidence to support her decision to cut-off [the paternal grandmother's] long-standing relationship with the ... child. Nor did [the adoptive parent] offer any evidence that having a relationship with [the] paternal grandmother ... would not be in the ... child's best interest. Furthermore, [the paternal grandmother] is the only connection the ... child has to the paternal side of her family and familial relationships are beneficial to the ... child."

On appeal, the adoptive parent asserts four arguments. She first contends that the probate court erred by not appointing a guardian ad litem for the child. She next argues that § 26-10A-30 is unconstitutional, both facially and as applied to her. Finally, the adoptive parent complains that the probate court's decision to award visitation to the paternal grandmother is not supported by clear and convincing evidence that such visitation would be in the child's best interest.

We will first consider the adoptive parent's arguments regarding the constitutionality of § 26-10A-30. Although she argues that the statute is both facially unconstitutional and unconstitutional as applied to her in this particular instance, the adoptive parent's arguments regarding constitutionality are premised almost entirely on the principle that she, as the child's parent, has the fundamental right to the child's care, custody, and control, which right the United States Supreme Court, in Troxel v. Granville, 530 U.S. 57, 73, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), concluded had been violated by a Washington statute allowing third parties to seek visitation with a child over the objection of the child's parent. The Troxel Court concluded that the judgment awarding visitation under the Washington statute amounted to an "unconstitutional infringement on [the parent's] fundamental right to make decisions concerning the care, custody, and control of her [children]." Troxel, 530 U.S. at 72, 120 S.Ct. 2054. However, as admitted by the adoptive parent, our supreme court has already rejected the argument that § 26-10A-30 is unconstitutional based on the holding in Troxel. See Ex parte D.W., 835 So.2d 186 (Ala. 2002). Our supreme court explained in Ex parte D.W. that § 26-10A-30 did not violate the principles articulated in Troxel because the adoptive relationship is a status created by statute and, thus, that the legislature is free to define the rights of adoptive parents as it sees fit, even to the extent of limiting those rights to allow for the possibility of court-ordered visitation with grandparents in certain instances. Ex parte D.W., 835 So.2d at 190-91 ; see also Weathers v. Compton, 723 So.2d 1284, 1286 (Ala. Civ. App. 1998) (stating that, in enacting former Ala. Code 1975, § 26-10-5, the predecessor statute to § 26-10A-30, the legislature "acknowledge[d] an exception to the general rule that an adoption order that terminates the rights of the natural parents also terminates the rights of the natural grandparents"). Although the adoptive parent argues that "a large body of law has evolved that makes clear that Ex parte D.W. was wrongly decided," this court is bound by the holding of Ex parte D.W., and we are therefore not at liberty to reach the conclusion that the adoptive parent urges. See Ala. Code 1975, § 12-3-16 ("The decisions of the Supreme Court shall govern the holdings and decisions of the courts of appeals ....").

The adoptive parent also contends that the fact that the statute places jurisdiction over such visitation issues in the probate court, which, she says, is not a court of record "in Tuscaloosa County," fails to protect her due-process right to meaningful review of the evidence. She rests her argument on one citation to authority: M.L.B. v. S.L.J., 519 U.S. 102, 107, 117 S.Ct. 555, 136 L.Ed.2d 473 (1999), in which the United States Supreme Court determined that a parent appealing the termination of his or her parental rights cannot be denied meaningful review of that judgment by a requirement that he or she prepay the costs of compiling the record on appeal. M.L.B. is inapposite. The adoptive parent has appealed and, as provided for in Rule 10(e), has presented an agreed statement of the case in lieu of a transcript of the proceedings. The adoptive parent has provided no authority demonstrating how the probate court's jurisdiction over adoption matters has deprived the adoptive parent of any of her rights to due process. We are not required to perform that research for her. See Brooks v. Brooks, 991 So.2d 293, 303 (Ala. Civ. App. 2008) ("[I]t is neither our duty nor our function to perform legal research for an appellant."). We conclude, therefore, that she has not convincingly demonstrated that the legislature's choice to place adoptions and ancillary matters under the jurisdiction of the probate court renders § 26-10A-30 unconstitutional as applied to her.

The adoptive parent next argues that § 26-10A-30 is unconstitutional as applied to her in the present case because, she says, the probate court violated her right to due process by considering ex parte communications with the paternal grandmother during the proceedings leading up to the entry of the November 2015 judgment that we reversed in D.T. Although a court's consideration of ex parte communications might violate a party's due-process rights, see Ex parte R.D.N., 918 So.2d 100, 105 (Ala. 2005), we cannot see how a court's inappropriate consideration of ex parte communications would compel the conclusion that a statute was unconstitutional as applied. In any event, the adoptive parent did not make any argument to the probate court that its judgment was based on improper ex parte communications. Thus, we cannot further consider the adoptive parent's argument that the probate court violated her due-process rights by engaging in what the adoptive parent characterizes as "ex parte communications" when the paternal grandmother gave testimony at the earlier trial in this matter or otherwise communicated with the probate court. See M.G. v. J.T., 90 So.3d 762, 764 (Ala. Civ. App. 2012) (declining to consider a mother's argument that a juvenile court's judgment was void because the juvenile court had allegedly engaged in ex parte communications with a guardian ad litem because the mother had failed to raise the argument in the juvenile court).

We turn now to the adoptive parent's argument that the probate court's judgment should be reversed because the probate court failed to appoint a guardian ad litem for the child, which she contends was required by Rule 17(c), Ala. R. Civ. P. The adoptive parent filed a motion seeking the appointment of a guardian ad litem for the child on August 5, 2016, four days before the date set for trial. The probate court declined to appoint a guardian ad litem for the child.

Rule 17(c) reads, in pertinent part, as follows: "The court shall appoint a guardian ad litem (1) for a minor defendant, or (2) for an incompetent person not otherwise represented in an action and may make any other orders it deems proper for the protection of the minor or incompetent person." Thus, the rule requires the appointment of a guardian ad litem for a minor defendant. However, the record does not indicate that the child in the present case was a defendant in the action.

We therefore cannot agree with the adoptive parent that the probate court violated Rule 17(c) by declining to appoint a guardian ad litem for the child.

The adoptive parent also relies on English v. Miller, 370 So.2d 968 (Ala. 1979), to support her argument that appointment of a guardian ad litem was required in the present case. At issue in English was the ownership of the funds in two savings accounts. English, 370 So.2d at 969. Ora Mae English contended that her deceased brother, Leroy English, had given the funds in the accounts to her. Id. Leroy's former wife, Edna Faye English, claimed that the funds had been awarded to her and their two children in a divorce action. Id. Each account indicated that the account holders were Leroy or Ora Mae as trustee for one of the two children. Id. Our supreme court reversed the trial court's judgment awarding the funds to Ora Mae because the trial court had failed to make the children, who had a potential interest in the funds and were therefore indispensable parties under Rule 19(a), Ala. R. Civ. P., parties to the action or to appoint a guardian ad litem for them. Id. The supreme court noted that a guardian ad litem should be appointed on remand because of "[t]he possibility that the children's interest, if any, is adverse to the interest of those made parties, including their mother, Edna Faye English." Id.

English is inapposite here, however, because the basis for the supreme court's reversal of the trial court's judgment was its conclusion that the children in English were indispensable parties to the action. Because the supreme court ordered that the children be made parties to the action, Rule 19(a) would require appointment of a guardian ad litem for them. The child in the present case is not a party to the action; nor does the adoptive parent argue that the child is a necessary or indispensable party to the action. We conclude, therefore, that English does not require the probate court to appoint a guardian ad litem for the child.

Finally, we turn to the adoptive parent's argument that the probate court's decision to award the paternal grandmother visitation was not supported by the evidence. The adoptive parent admits that § 26-10A-30 does not indicate the burden of proof imposed upon the party seeking visitation under that statute. She then asserts that "that standard would have to be at least 'clear and convincing evidence.'" To support her assertion, she relies on cases interpreting former Ala. Code 1975, § 30-3-4.1, to require a clear-and-convincing-evidence burden of proof. See L.B.S. v. L.M.S., 826 So.2d 178 (Ala. Civ. App. 2002) ; and J.W.J., Jr. v. P.K.R., 976 So.2d 1035, 1042 n.4 (Ala. Civ. App. 2007).

However, in light of our supreme court's holding in Ex parte D.W., we cannot agree that the burden of proof required under former § 30-3-4.1 is also required to support the award of visitation to a grandparent under § 26-10A-30. Our supreme court explained in Ex parte D.W. that the adoptive-parent status created by the adoption code specifically limited the rights of adoptive parents "by allowing the possibility of court-ordered grandparent visitation over the objections of the adopti[ve] parents," and it concluded that adoptive parents and natural parents "must be treated differently" as a result of the purely statutory nature of the adoption relationship. Ex parte D.W., 835 So.2d at 191. Because the rights of adoptive parents are not equivalent to those of natural parents, the need for the clear-and-convincing-evidence burden of proof-to overcome the fundamental right of a parent to the care, custody, and control of his or her child-is not present in a grandparent-visitation case arising under § 26-10A-30. Thus, we reject the adoptive parent's argument that the probate court's judgment determining that visitation with the paternal grandmother was in the best interest of the child was required to be supported by clear and convincing evidence.

The adoptive parent further argues that the paternal grandmother failed to establish that visitation with the child would be in the child's best interest. Relying on In re Grandparent Visitation of Cathy L.(R.)M. v. Mark Brent R., 217 W.Va. 319, 617 S.E.2d 866 (2005) (" Cathy"), and Mizrahi v. Cannon, 375 N.J.Super. 221, 867 A.2d 490 (App. Div. 2005), the adoptive parent contends that the paternal grandmother failed to demonstrate that she and the child had a recent, close relationship worth preserving or that a connection with the child's biological paternal relatives was worth maintaining. We will examine both Cathy and Mizrahi.

In Cathy, the West Virginia Supreme Court of Appeals considered whether an award of grandparent visitation after an adoption of the child was proper under W. Va. Code § 48-10-502, the West Virginia statute governing grandparent visitation. The child in Cathy had been adopted by her paternal great-uncle and his wife. Cathy, 217 W.Va. at 321, 617 S.E.2d at 868. The child's paternal grandmother and her husband sought visitation with the child after the adoptive parents terminated their contact with the child. Id. The trial court awarded visitation to the paternal grandmother and her husband, and the adoptive parents appealed. Id.

The Cathy court reversed the award of grandparent visitation based on its conclusion that the trial court had not given proper weight to the adoptive parents' preference that the child not visit with the child's biological paternal grandparents. 217 W.Va. at 328, 617 S.E.2d at 875. Like the adoptive parent in the present case, the adoptive parents in Cathy objected to visitation, in part, because of the risk of involvement with the child's biological father. 217 W.Va. at 327, 617 S.E.2d at 874. The Cathy court indicated that the trial court had "dismissed" the concerns of the adoptive parents, "primarily upon the basis of the court's disagreement with the [adoptive] parents regarding the degree of family strain to be occasioned by visitation and the court's perception that visitation would not seriously undermine any plans the [adoptive] parents envisioned for [the child] or her familial associations." 217 W.Va. at 328, 617 S.E.2d at 875. Such dismissal of the adoptive parent's concerns based on the judge's perceptions of the best interest of the child, the Cathy court explained, was the basis for the decision to invalidate the Washington grandparent-visitation statute at issue in Troxel. Id. Because the trial court did not give proper consideration to the adoptive parents' wishes and concerns, the Cathy court concluded, the evidence at trial did not demonstrate that visitation was in the best interest of the child. Id.

The adoptive parent in the present case argues that we should look to the decision in Cathy and determine, as that court did, that the evidence before the probate court does not support a conclusion that the child's best interest will be served by visitation with the paternal grandmother. Her concerns about the child's exposure to the paternal grandmother's fiancé and potential contact with the biological father, she says, were not given the appropriate weight or proper consideration by the probate court. Therefore, she concludes, a reversal of the award of visitation to the paternal grandmother is warranted.

We must disagree. The decision in Cathy is rooted in the holding of Troxel. As we have already explained, our supreme court has clearly differentiated the rights of a natural parent from the rights of an adoptive parent, which flow from the adoption code. Ex parte D.W., 835 So.2d at 191. A probate court considering grandparent visitation under § 26-10A-30 is not required to give any special weight to the wishes of the adoptive parent. Instead, its only concern is whether the requested visitation will serve the best interest of the child.

The adoptive parent's reliance on Mizrahi is not as easily dismissed. In Mizrahi, the Appellate Division of the New Jersey Superior Court examined the propriety of a grandparent-visitation order awarding visitation to the paternal grandparents of a child who, after the death of her mother, was being adopted by the child's great-aunt and her husband. Mizrahi, 375 N.J.Super. at 227, 867 A.2d at 493. The New Jersey court determined that, under the applicable statute, N.J. Stat. Ann. § 9:2-7.1, and the caselaw interpreting it, grandparents seeking an award of visitation "must establish that denying visitation would wreak a particular identifiable harm, specific to the child, to justify interference with a parent's fundamental due process right to raise a child free from judicial interference and supervision." 375 N.J.Super. at 234, 867 A.2d at 498. Based on its review of the record, the New Jersey court concluded that the trial court had considered the child's best interest as opposed to whether she would suffer harm if she were not allowed to visit with her paternal grandparents. 375 N.J.Super. at 232, 867 A.2d at 497. Near the conclusion of the opinion reversing the award of grandparent visitation, the New Jersey court stated: "That the [paternal grandparents] may have had a warm relationship with [the child] until January 2001, when [the child] was three years old, does not mean that [the child] will experience harm now if visitation is not ordered." 375 N.J.Super. at 234, 867 A.2d at 498.

The adoptive parent admits that the harm standard discussed in Mizrahi is inapplicable here. However, she contends that we should consider, as the New Jersey court did, that the fact that a warm and loving relationship existed between the paternal grandmother and the child in the present case during the first 18 months of the child's life does not compel the conclusion that it is in the best interest of the child to reestablish that relationship through court-ordered visitation. The adoptive parent further contends that the probate court did not have before it evidence relating to the specific best interest of the child at issue; that is, she contends that the paternal grandmother failed to present evidence indicating that "it was in the best interest of this particular child to have visitation with this particular grandparent." Instead, she says, the paternal grandmother "asserted only vague generalities about the benefit of adopted children having relationships with their biological relatives."

This court has set out guidelines to assist courts applying § 26-10A-30. See Weathers, 723 So.2d at 1287. In Weathers, this court explained that a trial court considering whether to grant visitation rights to a grandparent pursuant to § 26-10A-30"must determine, after a careful consideration of all the evidence, whether [the grandparent's] continued participation in [his or her] grandchild's life after that child has been adopted by [a relative listed in § 26-10A-30 ] is a benefit to the child that outweighs any potential detriment." Weathers, 723 So.2d at 1287. In addition, the Weathers court noted that "[s]upportive family relationships are vital to the growth and development of a child." Weathers, 723 So.2d at 1287.

We must begin our review of the probate court's determination that visitation with the paternal grandmother would be in the child's best interest by noting that our review is limited to considering whether the probate court abused its discretion. Loftin v. Smith, 590 So.2d 323, 326 (Ala. Civ. App. 1991). Because the probate court took oral testimony, we are constrained by the ore tenus rule to presume that the factual findings of the probate court are correct unless they are "so unsupported by the evidence as to be plainly and palpably wrong." Snipes v. Carr, 526 So.2d 591, 592 (Ala. Civ. App. 1988). According to its judgment, the probate court found that, based on the evidence presented, the paternal grandmother and the child had "a close and loving relationship ... that benefited the ... child" until late 2013. The probate court also noted that the paternal grandmother was the only connection the child had to her paternal relatives and found, consistent with Weathers, that "familial relationships are beneficial to the ... child."

The adoptive parent contends that the probate court improperly placed on her the burden of proving that visitation with the paternal grandmother would not be in the best interest of the child. Indeed, the probate court's judgment states that the adoptive parent had not "offer[ed] any evidence that having a relationship with [the] paternal grandmother ... would not be in the ... child's best interest" and had "offered no evidence to support her decision to cut off [the paternal grandmother's] long-standing relationship with the ... child." Although we understand why the adoptive parent might believe that these statements indicate that the probate court was, in fact, requiring her to establish a basis to deny the requested visitation, we cannot agree that the probate court placed the burden of proof on the adoptive parent. Instead, it appears that the probate court concluded that the paternal grandmother and the child had enjoyed a close, loving relationship, that that relationship was a benefit to the child, and that the adoptive parent had not presented evidence satisfying the probate court that her decision to terminate that relationship was warranted or necessary. Thus, we read the judgment as concluding that an award of visitation to the paternal grandmother was warranted because of the close, loving, and beneficial relationship that the child had enjoyed with her, that the relationship should be allowed to continue so that the child could maintain a connection with her paternal relatives, and that no evidence indicated that the child's best interest would be better served by denying the requested visitation. Based on our limited record and our deferential standard of review, we cannot conclude that the probate court abused its discretion in awarding the paternal grandmother vitiation with the child under § 26-10A-30.

Based on our supreme court's holding in Ex parte D.W., we have rejected the adoptive parent's constitutional challenges to § 26-10A-30. We have also rejected her argument that the judgment should be reversed because of the probate court's failure to appoint a guardian ad litem for the child. We have further rejected the adoptive parent's contention that the appropriate burden of proof under § 26-10A-30 is the clear- and-convincing-evidence standard. Under our limited standard of review, we have determined that the evidence before the probate court supports the probate court's conclusion that the child's best interest would be served by allowing visitation with the paternal grandmother. Accordingly, the judgment of the probate court is affirmed.

AFFIRMED.

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

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

      In this opinion, we use the same defined terms we used in D.T.

      Rule 10(e) provides:
      "In lieu of the record on appeal as defined in subdivision (a) of this rule, the parties may prepare and sign a statement of the case showing how the issues presented by the appeal arose and how they were decided in the trial court and setting forth only so many of the facts averred and proved or sought to be proved as are essential to a decision of the issues presented. If the statement conforms to the truth, it, together with such additions as the court may consider necessary to present fully the issues raised by the appeal, shall be approved by the trial court and shall then be certified to the appellate court to which the appeal is taken as the record on appeal, and it shall be transmitted thereto by the clerk of the trial court within the time provided by Rule 11."
      (Emphasis added.)

      In her argument that § 26-10A-30 is unconstitutional as applied to her, the adoptive parent specifically contends that the fact that § 26-10A-30 allows a request for visitation to be brought "at any time" "poses the same problem ... as it did in Troxel," namely that the State has no compelling interest in promoting visitation well after a child has adjusted to her adoptive family, and that the probate court's statement in its judgment that the adoptive parent had not presented evidence indicating that visitation would not be in the child's best interest suffers from the same problem as did the judgment at issue in Troxel, namely that the probate court failed to give sufficient weight to the adoptive parent's decision to deny visitation or to her concerns about allowing visitation. As explained in the text, infra, because these arguments are premised on the application of the principles announced in Troxel, they are inapplicable to § 26-10A-30.

      We note that a probate court is a court of record. See Terry v. Gresham, 254 Ala. 349, 351, 48 So.2d 437, 438 (1950) ; and Whitaker v. Kennamer, 229 Ala. 80, 155 So. 855 (1934). The fact that a probate court lacks a full-time or official court reporter does not change that fact. Terry, 254 Ala. at 351, 48 So.2d at 438.

      The adoptive parent cites other statutes that require the appointment of a guardian ad litem in other types of actions: Ala. Code 1975, § 12-15-304 (requiring appointment of a guardian ad litem for a child in dependency and termination-of-parental-rights cases when the child is a party); 26-10A-22(b) (requiring appointment of a guardian ad litem for the child in a contested adoption proceeding); and § 26-17-612(b) (requiring appointment of a guardian ad litem for a child who is a party to a paternity proceeding). However, none of those statutes are applicable to visitation proceedings in the probate court under § 26-10A-30.

      The adoptive parent indicates that the probate court denied her motion; however, no ruling on the motion appears in the record. The paternal grandmother appears to admit that the motion was, in fact, denied, and no order appointing a guardian ad litem is contained in the record. Thus, for purposes of this opinion, we will consider the motion seeking appointment of a guardian ad litem for the child as having been denied.

      Rule 17(c) permits a court to "make any other orders it deems proper for the protection of the minor"; however, the rule does not require that such an order be entered.

      Former § 30-3-4.1, a general grandparent-visitation statute, was declared unconstitutional in Weldon v. Ballow, 200 So.3d 654 (Ala. Civ. App. 2015). The legislature has enacted another grandparent-visitation statute, see Ala. Code 1975, § 30-3-4.2, which became effective August 1, 2016. The paternal grandmother did not seek visitation under the newly enacted statute, which had not become effective at the time she instituted the underlying action in the probate court.

      The adoptive parent contends that the paternal grandmother failed to present clear and convincing evidence relating to the best interest of the child. In light of our determination that the clear-and-convincing-evidence burden of proof is not applicable, we have recast the mother's argument as one contending that the burden of proof was not met because of the lack of sufficient evidence relating to the specific best interest of the child at issue.


author: MOORE, Judge.

text:
    Phil GREEN v. BEARD AND BEARD ATTORNEYS
    2160590
    Court of Civil Appeals of Alabama.
    December 8, 2017
    Ralph K. Strawn, Jr., of Strawn & Robertson, LLC, Gadsden, for appellant.
    Jim Beard of Beard & Beard, Guntersville, for appellee.
   MOORE, Judge.

Phil Green appeals from a judgment entered by the Marshall Circuit Court to the extent that it awarded Beard and Beard Attorneys ("Beard and Beard") attorney's fees, pursuant to the Alabama Litigation Accountability Act ("the ALAA"), § 12-19-270 et seq., Ala. Code 1975. We affirm the judgment.

Procedural History

On May 16, 2017, Green, who is an attorney, filed, on behalf of Willodene Willard, a complaint in the Etowah Circuit Court against, among other parties, Beard and Beard, the law firm that had represented William Willard in divorce proceedings between William and Willodene. Willodene asserted a claim of libel against Beard and Beard and sought damages. The complaint specifically alleged that Beard and Beard had, on behalf of William, propounded to Willodene the following interrogatory in the Willards' divorce action:

"2. While married to your spouse, have you engaged in sexual relations of any kind with any other person? If so, please state the following:
"(a) State the date and place of each such occurrence.
"(b) State the name and address (or last known address) of each person with whom you have had such relations."

According to the complaint, that interrogatory constituted libel.

On June 29, 2016, Beard and Beard filed a motion to dismiss or, in the alternative, to change venue. On August 19, 2016, the action was transferred to the Marshall Circuit Court ("the trial court").

On September 1, 2016, Beard and Beard filed, pursuant to Ala. Code 1975, § 12-19-272, a part of the ALAA, a request for attorney's fees against Green. Subsequently, Green withdrew from representing Willodene, and Alexander Smith filed a notice of appearance as new counsel for Willodene. On November 23, 2016, Willodene, through Smith, filed a motion to voluntarily dismiss her complaint against all the defendants. On November 29, 2016, the trial court held a hearing concerning the ALAA issue regarding Beard and Beard; that same day, the trial court entered an order granting Willodene's motion to dismiss and reserving ruling on the ALAA issue pending further hearing. After a subsequent hearing, the trial court entered an order on December 13, 2016, ordering Green to pay the attorney's fees of Beard and Beard, pursuant to the ALAA, and stating, in pertinent part:

"1. [A]fter argument of counsel, the presenting of testimony and evidence, the Court finds that the claim filed by attorney Phil Green against Beard and Beard Attorneys was frivolous.
"2. The claim for libel and slander was not authorized by Willodene Willard, and [was] filed by Attorney Green without [Willodene's] authorization."

On January 11, 2017, Green filed a postjudgment motion challenging the award of attorney's fees to Beard and Beard. On January 22, 2017, he filed an amendment to the postjudgment motion. On March 21, 2017, the trial court entered an order reaffirming its award of attorney's fees with regard to Beard and Beard; the order also addressed the only other outstanding claim-a separate claim by Stephen Williams, the attorney for William, among others, for attorney's fees pursuant to the ALAA. On April 20, 2017, Green filed a subsequent postjudgment motion addressing the ALAA issues relating to Beard and Beard and Williams, who is not a party to this appeal. On April 28, 2017, Green filed his notice of appeal.

Discussion

On appeal, Green argues that the trial court erred in awarding Beard and Beard attorney's fees pursuant to the ALAA. He specifically argues that the trial court lacked jurisdiction to enter the award of attorney's fees. Initially, we note that Green points out (1) that an award of attorney's fees under the ALAA must be entered as part of a trial court's judgment, see Ala. Code 1975, § 12-19-272(a) ; Gonzalez, LLC v. DiVincenti, 844 So.2d 1196, 1201 (Ala. 2002), and (2) that Willodene's voluntary dismissal was effective without an order of the trial court because no answer or summary-judgment motion had been filed, see Rule 41(a)(1), Ala. R. Civ. P. Based on those points, Green posits that the trial court could not have awarded attorney's fees after Willodene's voluntary dismissal was effected.

Section 12-19-272(d) specifically provides: "No attorneys' fees or costs shall be assessed if a voluntary dismissal is filed as to any action, claim or defense within 90 days after filing." It stands to reason that the legislature intended that, conversely, if a claim is dismissed more than 90 days after the claim is filed, attorney's fees and costs may be assessed.

Moreover, we recognize that, even after a judgment is entered, a trial court retains jurisdiction for 30 days to modify that judgment sua sponte; furthermore, it may modify the judgment in response to a motion filed pursuant to Rule 59(e), Ala. R. Civ. P.

Casey v. McConnell, 975 So.2d 384, 389 (Ala. Civ. App. 2007). Therefore, a trial court's failure to award attorney's fees pursuant to the ALAA in the original judgment does not deprive the trial court of jurisdiction to award those fees if a trial court acts within the parameters of its jurisdiction to modify the judgment. See, e.g., Casey, 975 So.2d at 389.

Although Green is correct that the motion to dismiss filed by Willodene was effective to dismiss her complaint against all the defendants without an order of the trial court, we note that, within 30 days of the voluntary dismissal being filed, the trial court entered the order awarding attorney's fees pursuant to the ALAA. Therefore, the trial court acted within its jurisdiction to modify the effectual dismissal to award attorney's fees. Accordingly, we conclude that Green's argument that the trial court lacked jurisdiction to award attorney's fees pursuant to the ALAA is without merit.

Green also specifically argues that the trial court failed to comply with Ala. Code 1975, § 12-19-273, because, he says, it did not set forth specific reasons for making the award, it failed to consider the factors listed in § 12-19-273(1) through (12), and it considered an impermissible factor-specifically, that the claim was filed without the client's authorization.

Section 12-19-273 provides, in pertinent part:

"In determining the amount of an award of costs or attorneys' fees, the court shall exercise its sound discretion. When granting an award of costs and attorneys' fees, the court shall specifically set forth the reasons for such award and shall consider the following factors, among others, in determining whether to assess attorneys' fees and costs and the amount to be assessed:
"....
"(5) Whether or not the action was prosecuted or defended, in whole or in part, in bad faith or for improper purpose."

In the present case, the trial court specifically found that the libel claim was frivolous and had not been authorized by Green's client, Willodene, therefore satisfying the statutory requirement that the trial court "specifically set forth the reasons for such award." Furthermore, we note that one of the factors required to be considered is "[w]hether or not the action was prosecuted or defended, in whole or in part, in bad faith or for improper purpose." § 12-19-273(5). Rule 1.2(a), Ala. R. Prof'l Conduct, provides that "[a] lawyer shall abide by a client's decisions concerning the objectives of representation ... and shall consult with the client as to the means by which they are to be pursued." Having found that the claim was not filed in pursuit of client advocacy and not in accordance with the Rules of Professional Conduct, the trial court could have logically concluded that the claim was filed for an improper purpose. Therefore, we cannot conclude that the trial court did not consider the relevant factors. Finally, we point out that the factors set forth in § 12-19-273 are not exhaustive; indeed, the section specifically states that the enumerated factors are to be considered "among others." Thus, the trial court was permitted to consider whether the claim had been authorized by Green's client. Based on the foregoing, we disagree with Green's argument that the trial court failed to comply with § 12-19-273.

Green also argues that the trial court erred in holding that the libel claim lacked substantial justification and was filed without client authorization.

Section 12-19-271(1), Ala. Code 1975, provides that a claim is "without substantial justification" if it is "frivolous, groundless in fact or in law, or vexatious, or interposed for any improper purpose, including without limitation, to cause unnecessary delay or needless increase in the cost of litigation, as determined by the court." When a trial court determines that a claim is "without substantial justification" because it was "frivolous" or was "interposed for any improper purpose," "that determination will not be disturbed on appeal 'unless it is clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence.' " Pacific Enters. Oil Co. (USA) v. Howell Petroleum Corp., 614 So.2d 409, 418 (Ala. 1993) (quoting Cove Creek Dev. Corp. v. APAC-Alabama, Inc., 588 So.2d 458, 461 (Ala. 1991) ). "Frivolous" is defined as "[l]acking a legal basis or legal merit; not serious; not reasonably purposeful." Black's Law Dictionary 783 (10th ed. 2014).

At the hearing on the ALAA issue, Smith, Willodene's attorney at that time, testified that Willodene had informed him that she had not authorized Green to file a libel claim against Beard and Beard. Considering that testimony, the trial court could have properly concluded that Green's institution of the libel claim was frivolous because it was filed without client authorization. Therefore, we cannot conclude that the trial court's judgment was " 'clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence.' " Pacific Enters. Oil Co. (USA), 614 So.2d at 418 (quoting Cove Creek Dev. Corp., 588 So.2d at 461 ).

Conclusion

Based on the foregoing, we affirm the trial court's judgment. Beard and Beard's motion for attorney's fees on appeal, pursuant to Rule 38, Ala. R. App. P., is denied.

AFFIRMED.

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

      To the extent that the postjudgment motion challenged the award of attorney's fees to Beard and Beard, that motion was a successive postjudgment motion that the trial court lacked jurisdiction to consider. Green v. Green, 43 So.3d 1242, 1243-44 (Ala. Civ. App. 2009).

      The admissibility of that testimony has not been challenged on appeal; therefore, we do not address that issue.


author: THOMPSON, Presiding Judge.

text:
    EX PARTE Tyler Casey THOMPSON
    (In re Tyler Casey Thompson v. Kaleigh Rose Thompson)
    2170098
    Court of Civil Appeals of Alabama.
    December 15, 2017
    A. Riley Powell IV and Thomas A. Hughes, Jr., of The Powell Law Firm, P.C., Gulf Shores, for petitioner.
    Dustin A. Garris of The Garris Law Firm, LLC, Bay Minette, for respondent.
   THOMPSON, Presiding Judge.

In January 2015, Tyler Casey Thompson ("the father") and Kaleigh Rose Thompson ("the mother") were divorced by the Baldwin Circuit Court ("the trial court"). In the divorce judgment, the parties were awarded joint legal custody of the parties' minor children ("the children") and the father was awarded sole physical custody. See § 30-3-151(2) and (5), Ala. Code 1975. In June 2017, the father, as the custodial parent, provided notice to the mother of his intent to move to New York with the children. The mother has filed an objection in the trial court, and she also seeks to modify custody. The father petitions this court for a writ of mandamus directing the trial court to dismiss the proceeding in which the mother objects to the proposed move, asserting that the trial court does not have subject-matter jurisdiction.

The following time line, gathered from the materials that the parties have submitted in support of and in opposition to the petition for a writ of mandamus, is helpful to a resolution of this matter.

On June 20, 2017, the father, in compliance with the requirements of the Alabama Parent-Child Relationship Protection Act ("the Act"), § 30-3-160 et seq., Ala. Code 1975, notified the mother of his intent to move with the children to Salem, New York, on September 1, 2017.

On June 26, 2017, the mother sent by certified mail a letter objecting to the proposed move. She did not file her objection in the trial court at that time. That same day, however, the mother, appearing pro se, filed a petition in the trial court seeking to modify custody. Along with her petition, the mother filed an affidavit of substantial hardship ("the hardship affidavit").

On June 26, 2017, the trial court granted the hardship affidavit. In its order, the trial court stated: "The prepayment of docket fees is hereby waived initially and will be taxed to the [mother] as costs at the conclusion of the case."

On July 12, 2017, the mother, who was by then represented by counsel, filed with the trial court the letter she had mailed to the husband on June 26, 2017, objecting to the move. She also filed an amended objection to the move, petition to modify custody and support, and petition for a rule nisi based on the husband's alleged failure to maintain health insurance for the children and to pay his share of the children's health-care expenses.

A hearing was held on August 31, 2017, during which the father made an oral motion to dismiss the mother's objection to the move on the ground that she had failed to pay a filing fee. At that hearing, the trial court noted that the mother had retained counsel and, from the bench, directed her to pay "whatever filing fees you need to pay to get your case going, go pay them before the next court date." The materials before this court do not include a written order memorializing the trial court's oral direction.

The mother paid a filing fee of $350 on September 19, 2017. On October 10, 2017, the trial court held a second hearing on the issue of filing fees. On October 11, 2017, the trial court entered an order determining that the mother's June 26, 2017, filing was "solely" a petition to modify custody and did not constitute a proper objection to the father's proposed relocation. However, the trial court found, the mother's July 12, 2017, filing included a properly filed objection, and, therefore, it denied the father's motion to dismiss the objection. The trial court dismissed the father's counterclaim, which is not at issue before this court. Finally, the trial court ordered the mother to "immediately pay any and all filing fees as she appeared with counsel after filling out" the hardship affidavit. On October 11, 2017, the mother filed a second filing fee for the contempt petition.

The father timely filed his petition for a writ of mandamus on October 25, 2017. In his petition, the father argues that the trial court erred by allowing the mother to file her objection in an existing case, that is, without initiating a new civil proceeding designated with new case number, and/or, he says, without paying a filing fee within 30 days of her receipt of his notice of the proposed move. Because the mother did not pay a filing fee within 30 days, the father contends, the trial court never obtained jurisdiction over her objection to the move.

" '[T]he question of subject-matter jurisdiction is reviewable by a petition for a writ of mandamus.' Ex parte Flint Constr. Co., 775 So.2d 805, 808 (Ala. 2000) (citing Ex parte Johnson, 715 So.2d 783, 785 (Ala. 1998) ).
" ' " 'A writ of mandamus is an extraordinary remedy that requires a showing of: (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty on the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.' " '
" Ex parte Punturo, 928 So.2d 1030, 1033 (Ala. 2002) (quoting Ex parte Bruner, 749 So.2d 437, 439 (Ala. 1999), quoting in turn Ex parte McNaughton, 728 So.2d 592, 594 (Ala. 1998) )."

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

As the father points out, the Act requires that, after receiving notice of a proposed relocation of a child's principal residence, a noncustodial parent has 30 days in which to file a proceeding objecting to a proposed move or relocation. § 30-3-169, Ala. Code 1975. In support of his assertion that the trial court never obtained subject-matter jurisdiction over the mother's objection because she failed to pay a filing fee within the required 30 days, the father cites Hicks v. Hicks, 130 So.3d 184 (Ala. Civ. App. 2012).

In Hicks, this court quoted Vann v. Cook, 989 So.2d 556, 558-59 (Ala. Civ. App. 2008), writing:

" 'Section 12-19-70, Ala. Code 1975, provides that "a consolidated civil filing fee, known as a docket fee, [shall be] collected ... at the time a complaint is filed in circuit court or in district court," although that payment "may be waived initially and taxed as costs at the conclusion of the case" if "[a] verified statement of substantial hardship" is filed and is approved by the trial court. In turn, § 12-19-71(a)(7), Ala. Code 1975, specifies that a filing fee of $248 is to be collected "for cases filed in the domestic relations docket of the circuit court seeking to modify or enforce an existing domestic relations court order" .... The payment of a filing fee or the filing of a court-approved verified statement of substantial hardship is a jurisdictional prerequisite to the commencement of an action. See De-Gas, Inc. v. Midland Res., 470 So.2d 1218, 1222 (Ala. 1985) ; see also Farmer v. Farmer, 842 So.2d 679, 681 (Ala. Civ. App. 2002) ("The failure to pay the filing or docketing fee is a jurisdictional defect.").' "

Hicks, 130 So.3d at 186 (emphasis omitted; emphasis added).

In this case, the mother filed her amended petition to modify custody and objection to the father's proposed move on July 12, 2017, which was within 30 days of her receipt of the father's letter of June 20, notifying her of his intent to move. The mother also filed a hardship affidavit, which the trial court granted within the 30-day period in which the mother had to file her objection. As the mother points out in her answer to the father's mandamus petition, a court-approved verified statement of substantial hardship, such as the hardship affidavit the mother filed in this case, excuses the payment of a filing fee at the outset of the action. See Haynes v. Haynes, 97 So.3d 781, 783 (Ala. Civ. App. 2012).

Nowhere in his petition to this court does the father discuss the consequences of the court-approved hardship affidavit. He simply argues that, because the filing fee was not paid, the trial court did not obtain subject-matter jurisdiction. Well established authority, however, teaches us that the trial court obtained subject-matter jurisdiction upon approval of the hardship affidavit, which resulted in a waiver of the mother's requirement to pay a filing fee within the 30-day period. While the case was within the trial court's jurisdiction, the trial court ordered the mother to pay the appropriate filing fees, and the mother complied with that order.

"It is not this court's obligation to create arguments for an appellant. Hayes v. Hayes, 949 So.2d 150, 154 (Ala. Civ. App. 2006) ('An appellate court is under no obligation to perform research or to make arguments for appellants.'). Instead, the appellant is obligated to provide arguments demonstrating that the trial court committed error requiring reversal. See Middleton v. Lightfoot, 885 So.2d 111, 113-14 (Ala. 2003) (" 'The burden of establishing that an erroneous ruling was prejudicial is on the appellant." Preferred Risk Mut. Ins. Co. v. Ryan, 589 So.2d 165, 167 (Ala. 1991).')."

Franklin v. Woodmere at the Lake, 89 So.3d 144, 150 (Ala. Civ. App. 2011). Because the father has failed to demonstrate error, he has also failed to demonstrate that he has a clear legal right to the order he seeks. Ex parte Siderius, 144 So.3d at 323. Accordingly, the father's petition for a writ of mandamus is denied.

PETITION DENIED.

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

      Presiding Judge Thompson is not related to the parties.