text:
    J.D. v. E.R.
    2160881 2160882
    Court of Civil Appeals of Alabama.
    March 30, 2018 Rehearing Denied May 25, 2018 Certiorari Petitions Denied July 13, 2018
    Alabama Supreme Court 1170826 and 1170827
    Julia Collins of The Isaak Law Firm, Montgomery, and Nichole Woodburn of The Isaak Law Firm, Enterprise, for appellant.
    Jim T. Norman III, Prattville, for appellee.
   DONALDSON, Judge.

These are appeals of judgments of the Autauga Juvenile Court ("the juvenile court") terminating the parental rights of J.D. ("the father") to S.D. and D.D. ("the children"). We affirm the judgments.

Facts and Procedural History

On March 15, 2017, E.R. ("the mother") filed petitions to terminate the parental rights of the father to the children. In her petitions, the mother alleged that the father had physically abused S.D., had refused to provide any substantial support to the children, had not had any recent physical contact with the children, that the children feared the father, and that terminating the father's parental rights would be in the best interest of each child. On March 31, 2017, the juvenile court appointed a guardian ad litem to represent the children. The father filed answers to the petitions denying each allegation. The father also filed a counterclaim in each case seeking an award of attorney's fees. The mother answered the father's counterclaims asserting several affirmative defenses.

On July 10, 2017, after a trial, the juvenile court entered a judgment in each case terminating the father's parental rights to each child and making certain findings of fact. The juvenile court's judgments state:

"1. ... Uncontroverted evidence was presented to the [juvenile court] that the [father] committed physical abuse against the minor child, S.D., when she was 6 years old. [The father] voluntarily entered a plea of guilty to battery of a child, a misdemeanor under Indiana law, to the physical abuse of said child during the Divorce proceedings. The [mother] testified that the facts surrounding the battery charge involved an incident wherein the [father] became extremely angry with the child to the point that he 'lost control' after the child asked him if he wanted her to help cook a meal. [The mother] testified that the [father] physically attacked the minor child to include grabbing her and slamming her head on the floor in the home to the point that the child was hospitalized with a concussion, contusions, and lacerations. The [mother] and the minor child testified to the extent of her injuries both physically and emotionally. Evidence was presented to the [juvenile court] that the minor child continues to suffer emotionally to the extent that she does not wish to see her father again or have any contact with him for the rest of her life. Pursuant to the Indiana Court Orders, Judge David C. Bonfiglio ordered that the [father]'s visitation would be limited to Skype or electronic communication subject to the [father]'s completing substantial psychiatric counseling to the extent that it satisfied the [mother] to expand his visitation. The [mother] presented credible testimony to the [juvenile court] that the [father] has failed to complete said counseling accompanied by evidence that the Guardian Ad Litem in the Indiana Case, MARY RAATZ reviewed the [father]'s counseling history over the next few years and determined that he had failed to comply with the [c]ourt's Order to the extent that he should not be allowed any physical visitation with the child.
"2. Through testimony, the [mother] averred that the [father] was currently in arrearage with his Child Support obligation as Ordered in the Divorce Decree in excess of $30,000.00 exclusive of any applicable interest. The [mother] further testified that the [father] had failed to have any physical contact with the child since 2013 and that there were a number of times when he would go for more than four (4) to six (6) months without communicating with the child via electronic means or by telephone. The [mother] further testified that the [father] was in Contempt of the Indiana Order in that he has failed and/or refused to pay Court Ordered Attorney fees in excess of $3,900.00 to her Indiana Attorney. A bill from said Attorney was introduced into evidence in this case. The [mother] requested this [juvenile court] to Terminate the Parental Rights of the [father], alleging that the [father] is unfit as a parent to the minor children for a number of reasons, primarily for his failure to substantially contribute financially to the minor children's welfare, the physical abuse admitted by the [father] against the minor child, S.D., and the extensive period of time that the [father] has basically been out of both of the children's lives to include the aforementioned instances where the [father] did not communicate in any manner for a period of over four (4) months at a time.
"3. The [father] testified to the [juvenile court] that he had attempted counseling with a number of different Counselors through his association with the United States Marine Corp. The [father] testified and evidence was admitted where he received counseling from a licensed Counselor in Florida, Mrs. Farnsworth; however, documentation was presented to the [juvenile court] via the Guardian Ad Litem (Raatz's) report that the [father]'s counseling through Mrs. Farnsworth, that he had failed and/or refused to comply with her recommendation that he receive individual psychotherapy as well as group support counseling before any physical visitation with the minor children would occur. The [father] alleged that the [mother] has kept him away from the minor children and evidence of alleged attempted communications by the [father] to the minor children was admitted and has been considered by this [juvenile court]. The [father] admitted that he has accumulated a substantial arrearage in Child Support obligations of several thousand dollars but he is not sure exactly how far behind he is. The [father] admitted to physically abusing S.D. when she was six (6) years old and acknowledged his Plea of Guilty to the charge of Battery of a Minor. The [father] spent approximately eight (8) months in jail as a result of the incident. Evidence [was] presented to the [juvenile court] that the [father] has been diagnosed with Bipolar Disorder, psychosis and a Panic Disorder. Further evidence was presented to the [juvenile court] that the [father] has continued to deal with his condition of significant mental health issues since the date the parties were divorced. The [father] testified that he is currently not on any medications; however, the private Counselor, Mrs. Farnsworth previously reported to the Guardian Ad Litem, (Mary Raatz), that the [father] had been abusing Klonopin and that she had a fear that he would continue to do so without intervention. Throughout the proceeding, the [father] displayed signs of struggling with significant emotional issues beyond what the [juvenile court] routinely sees in these type cases even given the consideration that this [is] an action requesting the termination of parental rights. [The father] asked to stop the proceeding and the [juvenile court] became concerned to the extent that the [juvenile court] summoned assistance from the Autauga County Sheriff's Office to have the presence of a Deputy in the [c]ourt room in the event the [father] 'lost control' in the manner he had described during the occurrence of the 'incident' with his minor daughter when he physically attacked her. [The father] testified that during said incident that he had 'lost time' and could not remember exactly what happened or why it happened. ... [The father] acknowledged that he had been discharged from the United States Marine Corp by Discharge order associated with the incident which occurred between him and his minor daughter. Although having become visibly shaken during his testimony, both the [father] and the [mother] appeared to be lucid, coherent and cooperative in providing their testimony to the [juvenile court] throughout the entire proceedings. [The father] was able to conclude his testimony after a recess.
"4. The [juvenile court] took testimony from both of the parties' minor children in camera, by agreement of both parties, their respective counsel and the Guardian Ad Litem, [Steve Langham]. The testimony taken from the children took place in camera in the Law Library of the Autauga County Courthouse. Said testimony was taken in order agreed upon by the parties, their respective Counsel and the Guardian Ad Litem. The [juvenile court] will not divulge all of the contents of the testimony given by the children in this Order; however, this [juvenile court] has given great weight to each child's testimony given the subject matter of said testimony and the disposition and demeanor of each child.
"5. Thea Langley testified that she had been appointed by Circuit Judge Ben Fuller in a collateral Domestic Relations case pending in Autauga County Circuit Court by Order of Judge Fuller. Mrs. Langley testified that she had met with the minor children and spoke with the [father] and [the mother] on a number of occasions in an effort to find a way to improve the relationship between the [father] and each child. Mrs. Langley admitted in her testimony that she had not been provided with any of the reports associated with the previous Indiana proceedings to include the incident/offense report associated with the battery of S.D., the medical records associated with S.D.'s injuries, the Guardian Ad Litem, Mary Raatz's report to the Indiana Court or the findings of the [father]'s previous counselor in Florida, Mrs. Farnsworth. Mrs. Langley appears to have done a thorough and competent job associated with the duties assigned to her by Judge Fuller; however, she lacks any knowledge of the history of the case which is not before the [juvenile court] in consideration of whether or not to terminate the [f]ather's rights. Mrs. Langley did not deliver an opinion to this [juvenile court] or make a recommendation as to the termination of parental rights for the foregoing reasons.
"6. Based upon all of the testimony and other evidence presented to this [juvenile court], the [juvenile court] finds that the [mother] has met the substantial burden placed upon her applying Alabama's two-pronged test and Alabama Statute [§] 26-18-7 (Code of Alabama, 1975 ). The [juvenile court] is convinced that the [father] abused the minor child, S.D., in the presence of the youngest child, D.D., to the extent that the child suffered physical injuries and emotional injuries which both children is [sic] still dealing with today and may have to do so for the rest of their lives. The [juvenile court] is further convinced that the [father] has failed to substantially provide financial support and that he is unable to produce any evidence disputing the fact that he is currently in arrears in excess of $30,000.00 exclusive of any applicable interest. The [juvenile court] is convinced that there has occurred other circumstances to include but not be limited to, the [father]'s being absent from both minor children's lives and that there were periods in excess of four (4) months on more than one occasion where the [father] had no communication with the minor children at all, electronically by Social Media or otherwise. The [juvenile court] further finds that there are no other viable alternatives which have not been considered or attempted and that the [father] has not presented any evidence to the [juvenile court] of any family members of the [father] who are available and willing to assist with any type of reunification. The report submitted by Guardian Ad Litem, [Steve Langham], and Indiana Guardian Ad Litem, Mary Raatz, coupled with the fact that the [father]'s own counselor (Mrs. Farnsworth) has indicated a lack of cooperation on the part of the [father] in that he had refused the recommended individual psychotherapy and community support involvement. The [juvenile court] is convinced that the evidence shows that the [father] has been unwilling to take the steps as prescribed by Indiana Judge Bonfiglio to try and reenter the children's lives through counseling and rehabilitation. Both children appear very happy and well cared for in the home of the [mother] and their Step-Father....
"Based upon all of the testimony and other evidence admitted and considered by the [juvenile court] it is hereby ORDERED, ADJUDGED and DECREED as follows:
"1. That the Parental Rights of the [father] as to the minor dependent child S.D. and the minor dependent child D.D. are hereby terminated.
"2. That the [juvenile court] further finds in terminating the parental rights of the [father], that substantial credible evidence has been presented to this [juvenile court] to make the determination that [the father] is unfit as a parent to the minor children and that there are no other viable alternatives to terminating his parental rights which have not been considered by the Indiana Court and this [juvenile court]. Each party shall be responsible for his or her own attorney's fee with all fees due to the Guardian Ad Litem, [Steve Langham], shall be satisfied by the State of Alabama pursuant to Juvenile Contract with Mr. Langham.
"3. All other relief requested by either party to this action is hereby denied. The cost of this action having been paid by the [mother].
"4. That this Order is hereby entered as a Final Order in these proceedings."

Neither party filed any postjudgment motions. The father timely filed his notices of appeal to this court on July 24, 2017. This court consolidated the appeals ex mero motu. This court has jurisdiction to consider the appeals pursuant to § 12-15-601, Ala. Code 1975, and Rule 28, Ala. R. Juv. P.

Standard of Review

Pursuant to § 12-15-319(a), Ala. Code 1975, a juvenile court may terminate a parent's rights to a child if it finds from clear and convincing evidence that the parent is unable or unwilling to discharge his or her responsibilities to and for the child or that the parent's conduct or condition renders that parent unable to properly care for the child and that the conduct or condition is unlikely to change in the foreseeable future. Section 12-15-319(a) further provides that the juvenile court shall consider, among other things:

"(2) Emotional illness, mental illness, or mental deficiency of the parent, or excessive use of alcohol or controlled substances, of a duration or nature as to render the parent unable to care for needs of the child.
"(3) That the parent has tortured, abused, cruelly beaten, or otherwise maltreated the child, or attempted to torture, abuse, cruelly beat, or otherwise maltreat the child, or the child is in clear and present danger of being thus tortured, abused, cruelly beaten, or otherwise maltreated as evidenced by the treatment of a sibling.
"....
"(9) Failure by the parents to provide for the material needs of the child or to pay a reasonable portion of support of the child, where the parent is able to do so.
"....
"(11) Failure by the parents to maintain consistent contact or communication with the child.
"(12) Lack of effort by the parent to adjust his or her circumstances to meet the needs of the child in accordance with agreements reached, including agreements reached with local departments of human resources or licensed child-placing agencies, in an administrative review or a judicial review."

In determining whether to terminate the father's rights, "[the] juvenile court [was] required to apply a two-pronged test...: (1) clear and convincing evidence must support a finding that the child is dependent; and (2) the court must properly consider and reject all viable alternatives to a termination of parental rights." B.M. v. State, 895 So.2d 319, 331 (Ala. Civ. App. 2004) (citing Ex parte Beasley, 564 So.2d 950, 954 (Ala. 1990) ). We have further explained that

"appellate courts must apply a presumption of correctness in favor of the juvenile court's findings in a termination-of-parental-rights action. J.C. v. State Dep't of Human Res., 986 So.2d 1172, 1183 (Ala. Civ. App. 2007). 'Additionally, we will reverse a juvenile court's judgment terminating parental rights only if the record shows that the judgment is not supported by clear and convincing evidence.' Id. See Ex parte McInish, 47 So.3d 767, 774 (Ala. 2008) (explaining standard of review of judgment resting upon factual determinations required to be based on clear and convincing evidence)."

S.S. v. Calhoun Cty. Dep't of Human Res., 212 So.3d 940, 949 (Ala. Civ. App. 2016). See also K.S.B. v. M.C.B., 219 So.3d 650, 653 (Ala. Civ. App. 2016) ("A juvenile court's judgment terminating a parent's parental rights must be supported by clear and convincing evidence."). "This court does not reweigh the evidence but, rather, determines whether the findings of fact made by the juvenile court are supported by evidence that the juvenile court could have found to be clear and convincing." Id. (citing Ex parte T.V., 971 So.2d 1, 9 (Ala. 2007) ). "When [the juvenile court's] findings rest on ore tenus evidence, this court presumes their correctness." Id.

Discussion

Although the father lists four issues in his principal brief, he essentially raises three points of alleged error. The father first contends that the record is inadequate for a direct appeal to this court and that the juvenile court's certification of the record as adequate is in error. Second, the father argues that the evidence does not support the termination of his parental rights to the children. Third, the father argues that the juvenile court erred in holding his counsel in direct contempt during the proceedings. We address the father's issues in a different order than presented in his brief.

During the trial, counsel for the father was found to be in contempt for purportedly recording the proceedings in violation of an order of the juvenile court. In his brief, the father asserts that the juvenile court's finding of contempt against his counsel is due to be reversed. The father does not claim that the finding of contempt against his counsel caused any injury to him, e.g., he does not claim that the decision to terminate his parental rights was affected by the finding or that the finding affected the presentation of evidence. The father cites no authority in support of an argument that the finding of contempt should result in a reversal of the judgment. See Aramini v. Aramini, 220 So.3d 322, 332 (Ala. Civ. App. 2016) (quoting Asam v. Devereaux, 686 So.2d 1222, 1224 (Ala. Civ. App. 1996) ) (" 'This court will address only those issues properly presented and for which authority has been cited.' "). We also note that the present appeal involves only the father and is not an appeal by the father's counsel from the contempt finding. See Rule 70A(g), Ala. R. Civ. P. (providing for a review by appeal of contempt adjudications). The father cannot raise arguments on behalf of his counsel. "As a general rule, 'a litigant may not claim standing to assert the rights of a third party.' " Ex parte Izundu, 568 So.2d 771, 772 (Ala. 1990) (quoting Jersey Shore Med. Ctr.-Fitkin Hosp. v. Estate of Baum, 84 N.J. 137, 144, 417 A.2d 1003, 1006 (1980) ). Therefore, the father has not established reversible error on this basis.

Regarding the adequacy of the record, the father correctly notes that this court may exercise jurisdiction over an appeal from a juvenile court if the record, when recorded by electronic means, is transcribed by a certified court reporter and certified as adequate for appellate review by the juvenile court. See Rule 28, Ala. R. Juv. P. The record was certified by the juvenile court as adequate for appellate review on October 23, 2017. The father argues that, within the transcript in the record on appeal, there are 99 instances in which testimony is described as inaudible and was not transcribed, and, therefore, he asserts, the juvenile court erred to reversal by certifying the record as adequate for appellate review. The father notes that a juvenile court's certification of the record as adequate for appellate review is not binding on this court. See R.G. v. C.M., 980 So.2d 417, 418 (Ala. Civ. App. 2007).

Although the father points to what he contends are irregularities or omissions in the transcription, he does not contend that any omissions or irregularities are material to a review of the proceedings or that the decision of the juvenile court was based on any omitted material. See Baker v. State Dep't of Human Res., 533 So.2d 633, 634 (Ala. Civ. App. 1988) (citing Dobbs v. State Dep't of Pensions & Sec., 484 So.2d 1052 (Ala. 1984) )(finding the record to be adequate despite indications that certain testimony was inaudible when the appellant did not contend "that inclusion of any of the omitted testimony would have benefited [him] upon review by this court"). We determine that the father has failed to establish that the juvenile court's certification of the record on appeal as adequate for appellate review was erroneous or amounts to a ground for reversal. See T.T.W. v. V.A., 868 So.2d 445 (Ala. Civ. App. 2003) (finding the record adequate for review despite testimony of 217 points in the record during which testimony was inaudible); A.V. v. Morgan Cty. Dep't of Human Res., 623 So.2d 331, 332 (Ala. Civ. App. 1993) (noting that the record contained "some inaudible discussions and conversations between the attorneys and the trial judge" but holding that "such omissions from the record do not make the record inadequate for review").

The father next contends that the juvenile court erred in terminating his parental rights because, he says, there was not clear and convincing evidence presented to support the termination. The father argues that the juvenile court's finding that he failed to substantially support the children by being $30,000 in arrears in child support is not supported by the evidence. The father asserts that the juvenile court's finding that he was unable to produce any evidence indicating that he has not amassed such an arrearage is "a clear abuse of discretion that is against the clear weight of the evidence." The father argues that the juvenile court improperly excluded evidence from the Indiana court that divorced the parties that purportedly showed that he had made child-support payments. The father does not, however, cite any rule of evidence or any caselaw to support his contention that that evidence was wrongly excluded by the juvenile court.

" Rule 28(a)(10) [, Ala. R. Civ. P.,] requires that arguments in briefs contain discussions of facts and relevant legal authorities that support the party's position. If they do not, the arguments are waived. Moore v. Prudential Residential Servs. Ltd. P'ship, 849 So.2d 914, 923 (Ala. 2002) ; Arrington v. Mathis, 929 So.2d 468, 470 n. 2 (Ala. Civ. App. 2005) ; Hamm v. State, 913 So.2d 460, 486 (Ala. Crim. App. 2002). 'This is so, because " 'it is not the function of this Court to do a party's legal research or to make and address legal arguments for a party based on undelineated general propositions not supported by sufficient authority or argument.' " ' Jimmy Day Plumbing & Heating, Inc. v. Smith, 964 So.2d 1, 9 (Ala. 2007) (quoting Butler v. Town of Argo, 871 So.2d 1, 20 (Ala. 2003), quoting in turn Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251 (Ala. 1994) )."

White Sands Grp., L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1058 (Ala. 2008).

The father also argues that the juvenile court failed to consider his ability to pay child support. See § 12-15-319(a)(9) (failure "to provide for the material needs of the child or to pay a reasonable portion of support of the child, where the parent is able to do so," is a factor to be considered when determining whether to terminate parental rights). The father argues that the juvenile court disregarded his testimony that he was, at times, unemployed or incarcerated and unable to make child-support payments. The record on appeal shows that the father and the mother were divorced in 2013. The father was ordered to pay child support pursuant to that divorce judgment. In the time since the entry of the divorce judgment, the father was incarcerated for approximately eight months. The father testified that he was "unemployed for a quite significant amount of time." The father testified that in one year he "only made $7,400." Based on the father's own testimony, there were periods when he was employed and earning income. The juvenile court could have found that, during those periods when the father was not incarcerated or unemployed, he had the ability to make child-support payments and failed to do so. The father argues that the juvenile court did not specifically find that he was able to make child-support payments during those times and, thus, erred to reversal. "[W]hen the juvenile court has not made specific factual findings in support of its judgment, we must presume that the juvenile court made those findings necessary to support its judgment, provided that those findings are supported by the evidence." Marshall Cty. Dep't of Human Res. v. J.V., 203 So.3d 1243, 1249 (Ala. Civ. App. 2016) (citing D.M. v. Walker Cty. Dep't of Human Res., 919 So.2d 1197, 1210 (Ala. Civ. App. 2005) ). There is evidence contained in the record on appeal from which the juvenile court could have found that the father failed "to provide for the material needs of the child[ren] or to pay a reasonable portion of support of the child[ren], where the [father was] able to do so." § 12-15-319(a)(9). We, therefore, decline to reverse the juvenile court's judgments on this basis.

The father also argues that the juvenile court erred in finding that he had been absent from the children's lives for periods of four months at various times and that the juvenile court could not terminate his rights on that basis. The father equates the juvenile court's finding to a finding of abandonment. Abandonment is defined in § 12-15-301(1), Ala. Code 1975, as:

"A voluntary and intentional relinquishment of the custody of a child by a parent, or a withholding from the child, without good cause or excuse, by the parent, of his or her presence, care, love, protection, maintenance, or the opportunity for the display of filial affection, or the failure to claim the rights of a parent, or failure to perform the duties of a parent."

The father cites § 12-15-319 and quotes the language of that statute regarding the rebuttable presumption that a parent is unable or unwilling to act as a parent in a case in which the parent has abandoned a child and that abandonment continues for a period of four months next preceding the filing of the petition seeking to terminate parental rights. See § 12-15-319(b). The father argues that the juvenile court misapplied the law as it relates to abandonment in termination-of-parental-rights cases. The father also argues that his filing of a domestic-relations action in which he sought a custody modification and a finding of contempt against the mother based on allegations that she had wrongfully restricted his access to the children in the months before the filing of the petitions to terminate his parental rights shows that he had not abandoned his children. The filing of a concurrent domestic-relations action does not establish a relationship with either child or negate a finding of abandonment. See A.E. v. M.C., 100 So.3d 587, 598 (Ala. Civ. App. 2012) (citing Ex parte J.W.B., 933 So.2d 1081, 1092 (Ala. 2005), relying in turn on a statement in Judge Murdock's dissent in K.W.J. v. J.W.B., 933 So.2d 1075, 1081 (Ala. Civ. App. 2005) ).

The father does not cite any authority in support of his argument that he did not abandon the children. See White Sands Grp., L.L.C., 998 So.2d at 1058. We note, however, that the juvenile court's finding that the father was absent from the children's lives and that there were periods in excess of four months in which the father had no communication with the children would support a determination that the father had abandoned the children. See § 12-15-319(a)(1). We further note that the juvenile court's findings would have provided a sufficient basis for terminating the father's parental rights pursuant to § 12-15-319(a)(11), which states that "[f]ailure by the parents to maintain consistent contact or communication with the child" is a factor to consider when determining whether to terminate parental rights.

The father appears to assert an argument that the juvenile court could not consider the physical abuse of S.D. committed by the father as a factor when determining whether to terminate his parental rights. See § 12-15-319(a)(3). The father states in his brief:

"Moreover, although the [father] did plead guilty to the abuse of S.D., said facts were heard by a court of competent jurisdiction at the time of the offense who issued three orders, each of which were domesticated by the [juvenile court]. Said court preserved the [father]'s parental rights and ordered specific contact to reunite and rehabilitate the children and the [father]. This [juvenile court] essentially sought to relitigate issues underlying the prior ruling and impermissibly terminated parental rights, substituting its judgment for the judgment of the previous court at which all evidence was heard without the filter of hearsay and with input from all parties."

The father cites no authority for the apparent argument that the juvenile court lacked the ability to consider the father's admitted abuse of S.D. as a factor supporting the termination of his parental rights. We will not reverse the juvenile court's judgments on an undeveloped and unsupported argument. See White Sands Grp., L.L.C., 998 So.2d at 1058.

The father also argues that the juvenile court did not consider viable alternatives to the termination of his parental rights. The father argues that the status quo, i.e., continued counseling for himself and the children, is a viable alternative to the termination of his parental rights. The father asserts that the juvenile court's finding of no viable alternative is unsupported by the evidence and does not meet the requisite clear-and-convincing-evidence standard. "[M]aintaining the status quo is a viable option to terminating parental rights when the parent and the child enjoy a relationship with some beneficial aspects that should be preserved such that it would be in the child's best interests to continue that relationship." S.N.W. v. M.D.F.H., 127 So.3d 1225, 1230 (Ala. Civ. App. 2013).

We have held, however, that when the evidence demonstrates that a parent is incapable of being rehabilitated or that the parent's conduct or condition is unlikely to change in the foreseeable future, " 'obviously no alternative can be considered viable to the end of returning the child to a normal custodial relationship with his or her parent.' " A.E.T. v. Limestone Cty. Dep't of Human Res., 49 So.3d 1212, 1218 (Ala. Civ. App. 2010) (quoting D.M.P. v. State Dep't of Human Res., 871 So.2d 77, 92 (Ala. Civ. App. 2003) (plurality opinion) ). There was evidence before the juvenile court from which it could have been clearly convinced that maintaining the status quo was not a viable option. The father points to seemingly positive testimony from Thea Langley. The father contends that Langley's testimony shows that reunification with the father would be favorable. The juvenile court, however, was in the best position to evaluate the weight to be given to Langley's testimony. Dunn v. Dunn, 972 So.2d 810, 815 (Ala. Civ. App. 2007). The juvenile court specifically found in its judgments terminating the father's parental rights that Langley's testimony was based upon an incomplete knowledge of the history of the parties. That finding is supported by the record.

Based on the evidence, the juvenile court could have also been clearly convinced that the father did not grasp the severity of his mental-health diagnoses. The father testified that he had been prescribed medication for his mental-health illnesses, but he either did not take the medication or did not take the prescribed amount. There was evidence before the juvenile court indicating that the father's treating mental-health professionals recommended that he attend individual psychotherapy and community-support groups, but the father declined to participate in or to seek that treatment. The juvenile court could have found that the father's mental-health condition rendered him unable to properly care for the children, see § 12-15-319(a)(2), and that the father's condition was not likely to improve based on his testimony and his past conduct. See S.G. v. Barbour Cty. Dep't of Human Res., 148 So.3d 439, 445-46 (Ala. Civ. App. 2013) (concluding that the juvenile court could have found from the mother's testimony that she suffered from a mental illness that rendered her unable to care for the child and that her condition was unlikely to change in the foreseeable future). Further, the evidence contained in the record supports the juvenile court's finding that the father had not taken steps as prescribed by the Indiana court to reenter the children's lives and rehabilitate himself. Based on the evidence in the record, the juvenile court could have found that maintaining the status quo was not a viable alternative. The juvenile court's finding that there exists no viable alternative to termination of the father's parental rights is supported by clear and convincing evidence.

Conclusion

The evidence before the juvenile court was sufficient to clearly convince the juvenile court that grounds for termination of the father's parental rights had been established and that the father's conduct or condition was unlikely to change in the foreseeable future. The juvenile court's finding that there exists no viable alternative to the termination of the father's parental rights is also supported by clear and convincing evidence. Accordingly, the judgments of the juvenile court terminating the father's parental rights are affirmed.

2160881-AFFIRMED.

2160882-AFFIRMED.

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

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

      Although no order of the domestic-relations court appears in the record on appeal, it appears from the testimony that the domestic-relations case was stayed pending the outcome of this case.


source: Caselaw Access Project

author: THOMAS, Judge.

license: Public Domain

text:
    Kathryn DREY f/k/a Kathryn Petersen v. Bendt W. PETERSEN
    2170072, 2170073, 2170074, 2170075, 2170076, 2170077, 2170078
    Court of Civil Appeals of Alabama.
    July 27, 2018
    Thomas R. Boller, Mobile.
    Submitted on appellant's brief only.
   THOMAS, Judge.

Kathryn Drey f/k/a Kathryn Petersen ("the former wife") and Bendt W. Petersen ("the former husband") were divorced by a judgment entered by the Mobile Circuit Court ("the trial court") in 2005. Pursuant to the parties' divorce judgment, the former husband was required to pay the former wife $400,000 on or before May 20, 2005, and an additional $66,667 per year thereafter for several years as a property settlement. The parties have three children, Elizabeth, Margaret, and Lauren, all of whom attended private school at the time of the divorce but are now adults, and, pursuant to the 2005 divorce judgment, the former husband was responsible for the payment of their private-school tuition. Pursuant to a 2010 modification judgment, the former husband was required to pay $2,500 per month for 24 months toward Elizabeth's college expenses and $1,750 per month for 48 months toward Margaret's college expenses; in 2012, the former husband was made responsible for Lauren's college expenses in the amount of $30,000 per year.

The former husband has a history of failing to timely pay the obligations due under the divorce judgment and the modification judgments. The former wife has, on numerous occasions, resorted to garnishment proceedings to enforce the former husband's monetary obligations under the 2005 divorce judgment and the modification judgments. In May 2012, the former wife filed, and the clerk issued, three garnishments in which she sought to recover $13,841.95 in past-due postminority educational support and associated interest for Elizabeth, $10,603.75 in past-due postminority educational support and associated interest for Margaret, and $17,282.31 for amounts due on the late payment of the 2009 property-settlement payment. In September 2012, the former wife filed, but the clerk did not issue, garnishments seeking to collect $30,000 in past-due postminority educational support for Lauren, $2,530 in past-due postminority educational support for Elizabeth, $4,961.53 for amounts due on the late payment of the 2007 property-settlement payment, $4,793.75 for amounts due on the late payment of the 2012 property-settlement payment, and $32,456.08 for 2006 private-school tuition and associated interest. Pursuant to direction from the trial court, the former wife prepared, but did not file, a garnishment seeking $132,563.91 in amounts due on the late payment of the 2005 property-settlement payment.

In January 2014, the trial court suggested and the parties agreed to submit the calculation of the amount due to the former wife to a special master. The trial court issued an order of reference to the special master in which the special master was ordered to "determin[e] the amount, if any, that [the former husband] owes to [the former wife] pursuant to prior orders of this court," noting "the difficulty in computing the amount owed ... and resolving the issue of the number of garnishments filed by [the former wife], and the monies owed that would be subject to garnishment." After lengthy proceedings during which the former husband and the former wife submitted documentary evidence and argument, but no testimony, to the special master, the special master issued his report on March 7, 2017. In that report, the special master determined the amount the former husband owed in past-due postminority educational support for each child. In addition, the report stated that "the only amount owed to the [former wife] for property settlement is due from a payment which was due on May 20, 2009.... Although amounts were paid, they were paid after they were due, and ... the interest due through February 28, 2017, totals $30,674.84." However, the special master's report did not address the amounts due to the former wife relating to the late payment of the 2012, 2007, and 2005 property-settlement payments or the amount she claimed was due for the 2006 private-school-tuition payment.

The trial court ordered the parties to file briefs regarding their positions on the report of the special master. In her brief, the former wife specifically challenged the special master's failure to address those amounts she claimed to be owed relating to the 2012, 2007, and 2005 property-settlement payments and the 2006 private-school-tuition payment. After a hearing, the trial court entered a judgment on August 25, 2017, adopting the special master's report. The trial court amended that judgment by order entered on August 30, 2017, and by order entered on September 19, 2017. In its judgment, as amended by the September 19, 2017, order, the trial court awarded the former wife $30,664.84 for the 2009 property-settlement payment, $14,848.84 for Margaret's past-due postminority educational support, $18,343.93 for Elizabeth's past-due postminority educational support, and $50,100 for Lauren's past-due postminority educational support. Like the special master's report, the trial court's judgment was silent regarding the amounts the former wife complained were due her related to the 2012, 2007, and 2005 property-settlement payments and the amount she claimed was due for the 2006 private-school-tuition payment. The judgment also awarded the former wife attorney fees, condemned all money in the possession of the clerk's office, and ordered the disbursement of those funds to the former wife's attorney. Finally, the judgment "dismissed ALL garnishments." The former wife filed a timely appeal to this court.

On appeal, the former wife challenges several aspects of the trial court's judgment. She argues that the trial court erred by failing to award her the sums that she complained were due from the former husband related to the 2012, 2007, and 2005 property-settlement payments and the amount she claimed was due for the 2006 private-school-tuition payment. She contends that the trial court lacked the ability to amend its August 25, 2017, judgment. She also contends that the trial court erred by dismissing all garnishments and by entering a new series of judgments. The former husband, despite requesting two enlargements of time, failed to favor this court with a brief.

We first dispense with the former wife's argument that the trial court was not permitted to amend its August 25, 2017, judgment by its August 30, 2017, and September 19, 2017, orders. She contends that the trial court could have amended its judgment only by complying with either Rule 59(d), Ala. R. Civ. P., or Rule 60(a), Ala. R. Civ. P. We need not discuss the applicability of those rules, however, because the former wife is incorrect. "A trial court has the authority to alter, amend, or vacate a judgment on its own motion within 30 days after the entry of that judgment." Ex parte DiGeronimo, 195 So.3d 963, 968 (Ala. Civ. App. 2015) (citing Pierce v. American Gen. Fin., Inc., 991 So.2d 212, 215 (Ala. 2008) ). Both the August 30, 2017, and the September 19, 2017, orders were entered within 30 days of the trial court's original August 25, 2017, judgment. Thus, the trial court's August 30, 2017, and September 19, 2017, orders were proper amendments of the original judgment, and we find no basis for voiding the judgment, as amended by the September 19, 2017, order.

The former wife next argues that the special master and the trial court erred by failing to determine that the former husband owed the former wife the amounts that she claimed were due to her related to the 2012, 2007, and 2005 property-settlement payments and the 2006 private-school-tuition payment. As noted above, the parties did not present testimonial evidence to the special master or to the trial court. Instead they submitted to the special master portions of transcripts from earlier hearings before the trial court, various orders and judgments of the trial court, and other documentary evidence that each contended supported their positions on the amounts owed to the former wife. Thus, our review of the judgment of the trial court is de novo.

McCreless v. Valentin, 121 So.3d 999, 1002 (Ala. Civ. App. 2012) (quoting Phillips v. Knight, 559 So.2d 564, 567 (Ala. 1990) ) (" 'We review the evidence presented in the record before us without any presumption of correctness, due to the trial judge's having taken no oral testimony.' ").

The 2012 Property-Settlement Garnishment

In the proceedings before the special master, the former husband challenged the former wife's proposed garnishment related to the 2012 property-settlement payment solely on the ground that the former wife had used the wrong rate of postjudgment interest in calculating the total amount due to be garnished. That is, the former husband admitted that he had not timely paid the 2012 property settlement to the former wife. In her response to the report of the special master, the former wife corrected her computations to reflect the proper interest rate. As the former wife correctly posits, the evidence supports the conclusion that she is due the correct amount of interest on the late 2012 property-settlement payment. Therefore, we agree that the trial court erred by failing to recognize the former wife's right to the amounts she is due from the former husband related to the late 2012 property-settlement payment.

The 2007 Property-Settlement Garnishment

The record reflects that in 2007 the former husband failed to pay the property-settlement payment due under the divorce judgment until either December 31, 2007, or January 2, 2008. The former husband challenged the former wife's garnishment seeking amounts due on the late 2007 property-settlement payment, arguing that, during 2007, "the parties were engaged in a dispute about when the property settlement [payment] was due each year" and stating that "the judgment of divorce was not clarified on this point until [the trial court's] order of January 8, 2009." Thus, the former husband's objection to the garnishment concludes, "it is not appropriate to penalize the [former husband] for interest on a sum which, at that time, was not due until the end of the calendar year."

Indeed, as the former husband contends, the trial court's January 8, 2009, order indicates that "payments pursuant to all property settlements hereinbefore ordered by this court are due on May 20th of each year." However, as the former wife points out, a reading of the original 2005 divorce judgment supports the conclusion that the January 8, 2009, judgment did not alter the date upon which the property-settlement payments were due, but merely reiterated that date to settle the dispute between the parties. As noted above, the former husband has failed to provide this court with a brief, and we have found no authority provided by the former husband in the record supporting a conclusion that the former husband's mistaken belief regarding the date that the property-settlement payment was due would relieve him of the duty to have paid the 2007 property-settlement payment on time, see, general ly , Gray v. Bain, 164 So.3d 553, 564 (Ala. 2014) (Per Murdock, J., with two Justices concurring and two Justices concurring in the result) (explaining that, "although a mutual mistake of fact will permit a court to reform or rescind a binding settlement agreement, a unilateral mistake does not justify such relief"), or from the accrual of postjudgment interest on his late payment of that property-settlement payment. See Ala. Code 1975, § 8-8-10(a) (stating that money judgments bear interest and setting out the applicable rate); Morgan v. Morgan, 445 So.2d 297, 299 (Ala. Civ. App. 1983) (explaining that, "if one of the yearly installments is not paid when due, interest would accrue from its due date and until paid").

The former husband's objections to the former wife's proposed garnishment relating to the amounts due her on the late 2007 property-settlement payment are legally insufficient to prevent the former wife from being entitled to collect those amounts. The former husband's failure to timely pay the 2007 property settlement resulted in the accrual of interest on that judgment as of the date it became due. Morgan, 445 So.2d at 299. Thus, we conclude that the trial court erred in failing to determine that former wife was entitled to the amounts due her on the late 2007 property-settlement payment.

The 2005 Property-Settlement Garnishment

According to the former wife, the former husband also challenged before the special master the amounts the former wife sought to collect related to his late payment of the 2005 property-settlement payment. She says that the former husband contended before the special master that a July 17, 2006, judgment of the trial court waived the former wife's right to postjudgment interest on the late 2005 property-settlement payment. The July 17, 2006, judgment addressed the 2005 property-settlement payment by determining the amount still due the former wife after deducting sums that the former wife had received through certain garnishments. That judgment specifically ordered the former husband to pay, among other sums, $241,127 to satisfy the 2005 property-settlement obligation of $400,000. The July 17, 2006, judgment did not address postjudgment interest, much less indicate that such interest was waived. Furthermore, because the former husband had yet to extinguish the $400,000 obligation to the former wife, the amount of interest due her could not have been computed at that time. Even if the judgment had indicated that postjudgment interest had been waived, we note that a trial court lacks the authority to waive the imposition of postjudgment interest. See § 8-8-10 ; State ex rel. W.M.E. v. G.C., 73 So.3d 593, 596 (Ala. 2011) (concluding, in an appeal involving a child-support arrearage, that a trial court cannot waive interest due under § 8-8-10 ); Morgan v. Morgan, 445 So.2d at 299 ; see also Diggs v. Diggs, 910 So.2d 1274, 1279 (Ala. Civ. App. 2005) (applying Morgan ). Accordingly, the former wife is entitled to collect the amounts due her for the late payment of the 2005 property-settlement payment.

The Private-School-Tuition Garnishment

The former wife also sought to recover amounts related to what she alleged was the former husband's failure to pay the Spring 2006 private-school-tuition payment. She contends in her response to the report of the special master that

"it is undisputed that the money used to satisfy [the former husband's private-school-tuition] obligation [for Spring 2006] came from money garnished toward payment of [the former husband's] 2005 property-settlement arrearage....
The clerk's office mistakenly included funds used to satisfy [the former husband's private-school-tuition] obligation as part of the total garnishments for the 2005 property settlement payment. Both parties and the court then mistakenly relied upon and included the clerk's erroneous calculations in determining the amount outstanding for the 2005 property settlement payment as reflected in the July 17, 2006, order.
"Consequently, the [former husband] received a credit against his 2005 property settlement arrearage for the amount used to satisfy his Spring 2006 [private-school-tuition] obligation...."

Based on the above argument, the former wife contends that she is entitled to an amount equal to the 2006 private-school-tuition payment plus accrued interest. We cannot agree. The July 17, 2006, judgment, which sets out the calculation of the unpaid balance of the 2005 property-settlement obligation of $400,000, recites that it incorporates an agreement of the parties. The former wife admits that, in July 2006, the parties made a mutual mistake of fact in calculating the amount the former husband, through certain garnishments, had paid toward the 2005 property-settlement payment. That mistake, in effect, reduced the former husband's 2005 property-settlement arrearage by subtracting from that arrearage funds that the former wife had garnished to satisfy the former husband's 2006 private-school-tuition obligation. The July 17, 2006, judgment memorializes that mistake.

However, the former wife cannot now collaterally attack the July 17, 2006, judgment by seeking a new judgment for the 2006 private-school-tuition payment (plus accrued interest) or through garnishment of the former husband's wages to "erase" the credit given to him in the July 17, 2006, judgment. The only remedy available to the former wife was to seek relief from the July 17, 2006, judgment pursuant to Rule 60(b)(1), Ala. R. Civ. P., which allows a trial court to set aside a judgment for, among other things, a mistake of fact. See Dow-United Tech. Composite Prods., Inc. v. Webster, 701 So.2d 22, 24 (Ala. Civ. App. 1997) (indicating that Rule 60(b)(1) allows a trial court to set aside a judgment entered on a settlement agreement based on a mutual mistake of fact). Of course, such a motion must be filed within four months of the entry of the challenged judgment, and the time for challenging the July 17, 2006, judgment has long since expired. See Rule 60(b) ; see also Bates v. Stewart, 99 So.3d 837, 853 (Ala. 2012) (indicating that, even under Rule 60(b)(6), a judgment should not be disturbed eight years after its entry). Therefore, we conclude that the trial court correctly determined that the former wife was not entitled to collect from the former husband the amount she alleged was due for the 2006 private-school-tuition payment.

The Dismissal of the Garnishments and the Entry of New Judgments

The former wife next argues that the trial court erred by dismissing "all garnishments" and by entering new judgments for the amounts owed by the former husband for the past-due postminority educational support and the late 2009 property-settlement payment. The former wife correctly notes that she was not required to have the amount of the former husband's unpaid obligations calculated and reduced to a new judgment before she could seek to garnish his wages to satisfy his obligations. See Moore v. Moore, 160 So.3d 325, 327 (Ala. Civ. App. 2014) (explaining that past-due installments of support become judgments on the date they are due and that they may be collected through garnishment proceedings without need of a new judgment); see also Willey v. Willey, 203 So.3d 875, 878 (Ala. Civ. App. 2016) (quoting Johnson v. Johnson, 191 So.3d 164, 172 (Ala. Civ. App. 2015) ) (" '[E]ach installment of periodic alimony awarded in a final judgment creates a final judgment on the date the obligation is due.' "). The trial court determined that the former wife was owed the amounts she requested for past-due postminority educational support and the late 2009 property-settlement payment. In this opinion, we have concluded that the former wife is also due the amounts she claimed for the late payment of the 2012, 2007, and 2005 property-settlement payments. Because the former husband owes the amounts sought in the former wife's several garnishments, other than the garnishment relating to the 2006 private-school-tuition payment, and because the former husband has not claimed any exemptions from garnishment, we conclude that the trial court erred in dismissing the former wife's garnishments regarding those amounts. See Rule 64B, Ala. R. Civ. P. (indicating that a trial court shall dismiss a garnishment when the plaintiff fails to contest the defendant's claim of exemption). In addition, because the obligations of the former husband became judgments on the date they became due, we find no reason for the entry of a new judgment on the amounts due the former wife for postminority educational support for the children or for the late 2009 property-settlement payment. The former wife should be permitted to garnish the former husband's wages to collect those amounts due her, so the garnishments for the amounts due for postminority educational support and for the 2012, 2009, 2007, and 2005 property-settlement payments should be reinstated. The garnishment relating to the 2006 private-school tuition was properly dismissed, and the trial court's judgment dismissing that garnishment is affirmed.

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

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

      The former wife had used the 12% interest rate that applied to judgments entered before September 1, 2011, see Ala. Code 1975, former § 8-8-10, as opposed to the 7.5% interest rate applicable to judgments entered on or after that date. See Ala. Code 1975, § 8-8-10(a).

      Because the amounts due to the former wife continue to accrue interest, we will not specifically set out in this opinion the amounts to which the former wife is entitled.

      We expect that the former wife will amend the garnishment relating to the late 2012 property-settlement payment to properly reflect the appropriate interest rate as conceded in her response to the report of the special master.


author: MOORE, Judge.

text:
    D.W. v. W.C.
    2170208
    Court of Civil Appeals of Alabama.
    July 27, 2018
    Terinna S. Moon of Moon & Melvin, LLC, Prattville, for appellant.
    Juraldine Battle-Hodge, Montgomery, for appellee.
   MOORE, Judge.

D.W. ("the mother") appeals from a judgment entered by the Montgomery Circuit Court ("the trial court") to the extent that it awarded W.C. ("the father") visitation with B.W. ("the child"), whose date of birth is May 26, 2016, and determined the father's child-support obligation. We affirm the judgment in part and reverse it in part.

Procedural History

On May 18, 2017, the mother filed a complaint seeking a judgment awarding her custody of the child and requiring the father to pay child support. The father subsequently filed a letter responding to the mother's complaint; the father asserted that he should be awarded joint custody of, and visitation with, the child.

After an October 18, 2017, trial, the trial court entered a judgment that same day declaring that the father is the father of the child, awarding the parties joint legal custody of the child, awarding the mother sole physical custody of the child, awarding the father visitation with the child, and ordering the father to pay $509.28 per month in child support. With regard to child support, the trial court specifically stated:

"That the award of child support made herein was determined by application of the Child Support Guidelines established by Rule 32, Alabama Rules of Judicial Administration. The Child Support Guidelines (CS-42) and the Child Support Obligation Income Affidavit (CS-41) forms have been filed herein and are made a part of the record in this case. The said child support amount is not in compliance with the guidelines and is a downward deviation. The Father has two other minor children residing with him who he provides and cares for."

On October 31, 2017, the mother filed a postjudgment motion. She withdrew that motion on November 1, 2017, and subsequently filed a new postjudgment motion on November 15, 2017. On November 17, 2017, the mother filed a notice of appeal; that notice of appeal was held in abeyance until February 5, 2018, when the trial court entered an order disposing of the mother's postjudgment motion.

Facts

The mother and the father were never married to one another. At the time the child was conceived, the father was married but was living separately from his wife. The father had subsequently reconciled with his wife, and they remained married at the time of the trial.

The mother has an older child in addition to the child. The father and his wife have two children together; one of those children is older than the child, and the other is younger. The younger of the father and his wife's children was born prematurely.

The evidence indicated that the mother had allowed the father to visit the child at her house and that the father had provided some support for the child. Approximately one month before the mother filed her complaint, the mother and the father had had an argument, and the father had not visited or provided support since that time.

The father submitted a Form CS-41 "Child-Support-Obligation Income Statement/Affidavit" indicating that he earns $2,581 per month. The mother submitted a Form CS-41 indicating that she earns $1,440 per month and that she incurs day-care costs for the child in the amount of $440 per month. The trial court completed a CS-42 form using those figures. The calculations on that form resulted in the father's monthly child-support obligation being $709.28.

The father testified that he earns $14.91 per hour and that he earns overtime pay once or twice per month. His most recent pay stub for the week of October 2 through October 9, 2017, was introduced into evidence. That pay stub indicated that his hourly salary is $14.90, that his gross salary for the period October 2 through October 9 was $619.18, and that his year-to-date gross salary was $31,798.69. The father testified that his wife does not work, that she is in school, and that she had been taking care of their youngest child. He testified that his monthly expenses include $800 for rent, $375 for utilities, $80 for diapers for his youngest child, $135 for formula for his youngest child, $400 for his wife's automobile payment, $300 for his automobile payment, $125 for insurance, and $300 for medical expenses for his youngest child.

The mother testified that she wanted the father's visitation to be phased in gradually and supervised because the father had not been around the child much, because she and the father have a history of getting into arguments, because the father works long hours, and because she has a "very bad history" with the father's wife and knows "nothing" about her.

Discussion

On appeal, the mother first argues that the trial court erred by not requiring that the father's visitation with the child be phased in gradually and by not requiring that the visitation be supervised. We initially note, however, that because there is no indication in the record that the trial court's visitation order was stayed, the mother's argument regarding the trial court's failure to require the visitation to be gradually phased in is largely moot. See, e.g., State ex rel. Eagerton v. Corwin, 359 So.2d 767, 769 (Ala. 1977) ("A case is moot when there is no real controversy and it seeks to determine an abstract question which does not rest on existing facts or rights."). Moreover,

"the law presumes that it is in the best interest of a child to have complete and unrestricted association with his or her parents. See Jackson v. Jackson, 999 So.2d 488, 494-95 (Ala. Civ. App. 2007) (quoting Johnita M.D. v. David D.D., 191 Misc. 2d 301, 303, 740 N.Y.S.2d 811, 813 (Sup. Ct. 2002) ). When the parents are deemed fit and proper persons, the parents should have reasonable visitation rights. Naylor v. Oden, 415 So.2d 1118 (Ala. Civ. App. 1982). As we have recently noted, the reasonableness of visitation rights and any restrictions on visitation depend on the circumstances of the case. Jackson, 999 So. 2d at 494-95. In deciding appropriate restrictions on visitation, '[t]he trial court is entrusted to balance the rights of the parents with the child's best interests to fashion a visitation award that is tailored to the specific facts and circumstances of the individual case.' Nauditt v. Haddock, 882 So.2d 364, 367 (Ala. Civ. App. 2003)."

V.C. v. C.T., 976 So.2d 465, 468 (Ala. Civ. App. 2007).

In the present case, the evidence at the trial indicated that the father had visited the child, albeit not regularly. There was no evidence indicating that the child would be harmed in any way by allowing the child "complete and unrestricted" visitation with the father. Therefore, we cannot conclude that the trial court exceeded its discretion by declining to require the father's visitation to be phased in gradually or to be supervised.

The mother also argues that the trial court erred in calculating the father's child-support obligation. She correctly notes that the father's pay stub for the period October 2 through October 9, 2017, which was introduced at the trial, indicates that he earns a higher monthly salary than he reflected on his Form CS-41. We note that the father's income as reflected on his Form CS-41 is approximately the amount he would earn working 40 hours per week at his hourly rate of pay. However, the father testified that he earns overtime pay once or twice per month; that overtime pay, along with certain "shift premiums" reflected in his pay stub, would explain the discrepancy between the father's represented income on his Form CS-41 and his income as reflected on the pay stub introduced at trial.

"This court has held that 'overtime' income falls within the definition of income for purposes of calculating child support, 'to the extent that such income is sufficiently substantial and continuing, and that it can be accurately determined.' State ex rel. Smith v. Smith, 631 So.2d 252, 255 (Ala. Civ. App. 1993). However, 'there may be circumstances where overtime pay appears to be an anomaly or is uncertain or speculative, thereby justifying its exclusion from income for purposes of setting child support or deviating from the child support guidelines, in which case the trial court should make a finding to that effect.' Id.; see also, Homan v. Homan, 623 So.2d 326 (Ala. Civ. App. 1993)."

Jordan v. Jordan, 688 So.2d 839, 841 (Ala. Civ. App. 1997).

In this case, the father testified that he earns overtime pay once or twice per month. We conclude that overtime at that regularity constitutes "substantial and continuing" overtime and therefore should have been considered as income for purposes of calculating the father's child-support obligation. Therefore, we reverse the trial court's judgment to the extent that it calculated the father's child-support obligation.

The mother finally argues that the trial court erred by deviating from the guidelines and reducing the father's child-support obligation as calculated pursuant to Rule 32. "To the extent that the [mother] is arguing that the ... child-support award[ ] should be reversed because the trial court failed to include the specific findings required by Rule 32(A)(ii)..., Ala. R. Jud. Admin., in the ... judgment, the [mother] is making that argument for the first time on appeal, and, therefore, we cannot consider it." Taylor v. Taylor, 121 So.3d 987, 995 (Ala. Civ. App. 2012) (citing Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala. 1992), which held: "[An appellate c]ourt cannot consider arguments raised for the first time on appeal...."). We will, however, consider her argument concerning the sufficiency of the evidence to support the deviation.

Pursuant to Rule 32(A), there is a "rebuttable presumption, in any judicial or administrative proceeding for the establishment or modification of child support, that the amount of the award that would result from the application of the[ ] guidelines is the correct amount of child support to be awarded." That presumption may be rebutted by a "determination by the court, based upon evidence presented in court and stating the reasons therefor, that application of the guidelines would be manifestly unjust or inequitable." Rule 32(A)(ii).

In this case, the mother's specific argument is that the father failed to introduce into evidence any exhibits supporting his testimony regarding his monthly expenses. The mother, however, fails to cite any authority for the proposition that testimony, without supporting documentation, is insufficient to prove the father's monthly expenses. See, e.g., White Sands Grp., L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1058 (Ala. 2008) ("Rule 28(a)(10)[, Ala. R. App. P.,] requires that arguments in briefs contain discussions of facts and relevant legal authorities that support the party's position. If they do not, the arguments are waived."). However, because we are reversing the trial court's award of child support on the basis that the trial court incorrectly calculated the father's income, see discussion, supra, on remand the trial court is permitted to reconsider whether a deviation from the amount determined by application of the Rule 32 child-support guidelines is warranted considering the father's income, its corrected Rule 32 child-support calculations, and the evidence in the record. The trial court's judgment is affirmed in all other respects.

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

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

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


author: THOMPSON, Presiding Judge.

text:
    Michael J. BEDARD v. Sharon BEDARD
    2170267
    Court of Civil Appeals of Alabama.
    July 27, 2018
    Joan-Marie Sullivan, Huntsville, for appellant.
    Marcus Helstowski of McDaniel & McDaniel, L.L.C., Huntsville, for appellee.
   THOMPSON, Presiding Judge.

Michael J. Bedard ("the husband") appeals from a judgment of the Madison Circuit Court ("the trial court") divorcing him from Sharon Bedard ("the wife"). In the judgment, among other things not relevant to this appeal, the trial court divided the parties' marital property, awarded the wife sole physical custody of the parties' child ("the child") subject to the husband's visitation, and found the husband in contempt for his failure to comply with a pendente lite order.

The record indicates the following. The wife filed a complaint for a divorce on January 19, 2015, and, at the same time, she requested pendente lite child support. On March 19, 2015, the husband filed his answer and a motion seeking the entry of the court's "standing pendente lite order," as well as a request for a pendente lite hearing seeking enforcement of the standing pendente lite order. A hearing was held on April 9, 2015, and the next day the trial court entered a pendente lite order awarding the parties joint legal custody of the child and the wife sole physical custody of the child subject to the husband's standard visitation. The parties were directed to provide the trial court with income information pursuant to Rule 32, Ala. R. Jud. Admin., so that the court could determine child support. The trial court also entered the standing pendente lite order that the husband had requested. Among other things, the standing order directed the parties to preserve their assets. The parties complied with the request to provide income information, and on April 28, 2015, the trial court amended the pendente lite order to direct the husband to pay the wife $1,660 on the first of each month, beginning in May 2015, as pendente lite child support.

On May 4, 2015, the wife filed a motion to hold the husband in contempt because he had paid only $1,303 in pendente lite support. On July 1, 2015, the wife filed a second contempt motion alleging that she had received the second child-support payment from the husband on June 30, 2015, and that that payment was for only $281.74. In her motion, the wife said that the husband had told her that the trial court had incorrectly calculated his child-support obligation. Before the trial was held, the wife filed two more contempt motions--one regarding the husband's failure to pay the required child support and the other alleging that the husband had removed the wife from his health-insurance policy in violation of the standing pendente lite order.

During the trial, the following evidence was adduced. The parties were married in December 2008. The child, a daughter who was seven years old at the time of the trial, was the only child born of the marriage. However, both the husband and the wife had older children from previous marriages. Both parties sought sole physical custody of the child. The husband testified that he was concerned about the child being injured in the wife's care. He said that, on three occasions, he had taken the child to the hospital for what he said were dislocated elbows. He presented photographs of the child with bruises and scrapes and said that the wife had explained away those injuries, saying the child was clumsy. The husband also testified about an occasion when the wife "smacked" the child because she was crying. He said that the child had never given him cause to even send her to her room, adding that the child had "been a very compliant child to me."

The husband's father, Donald Bedard, testified that the wife was a "fabulous, caring" mother and that he had no concerns about the child's well being in the wife's custody. He said that he had been to the wife's apartment where she had been living with the child since the parties' separation and that, at the wife's home, "there was no anxiety, happiness, no sadness." During the marriage, Donald Bedard said, the parties' home had "a bit of anxiety, walking on eggshells at times ... and fear." Donald Bedard acknowledged that he and other members of his family, including the husband's mother and siblings, did not have a relationship with the husband. Donald Bedard testified that the husband had told him he was not welcome in the husband's home.

The husband testified that he disciplined his older children by taking away a privilege or grounding them. However, the husband acknowledged that he had been charged with felony child abuse regarding one of those children. In his appellate brief, the husband says only that the charge had been nolle prossed. However, the record indicates that, during his testimony, the husband acknowledged that he had participated in a pretrial-intervention program through the auspices of the district attorney's office. The program required the husband to make a statement admitting guilt and to perform 100 hours of community service.

The wife testified that she and the child spend time together baking, gardening, sewing, swimming, playing with dolls, and "role playing." She also testified that the husband would not allow her to take the child to South Africa to visit the child's maternal grandfather when the maternal grandfather was dying. The wife testified that, in her opinion, she and the husband would be unable to co-parent the child. The husband testified that he did not know of a reason why the parties could not co-parent the child.

As to the parties' property, on December 12, 2008, before they married, the parties entered into an antenuptial agreement. Pursuant to the agreement, the husband and the wife were to maintain the separate estates with which they entered the marriage. A specific term of the agreement provided that the husband was to retain his house, where the parties lived during the marriage. However, the agreement further specified that there was an outstanding balance of $36,000 on a home-equity line of credit ("HELOC") secured by that house at the time the agreement was reached. The agreement provided that the husband "will pay [the wife] the amount of $18,000 less half the outstanding balance on the loan." No other terms or limitations regarding the payment of the $18,000 were included in the agreement.

The wife testified that, when she and the husband married, she sold the house that she had lived in during her previous marriage. She said that $14,346 out of the total proceeds she earned from the sale of that house were used "to help pay off" the $36,000 home-equity loan on the husband's house. That loan was paid in full in February 2010. However, in January 2015, shortly before the wife filed the divorce complaint on January 19, 2015, the husband made three withdrawals totaling $39,000 from the HELOC without the wife's knowledge. The husband testified that he made the withdrawals to pay the college expenses for one of his older children.

During the marriage, the parties acquired personal property for which the wife sought half the value. At trial, the wife submitted a list of those accumulated assets, which included her estimated value of each asset. In addition to some household items, the wife said, during the marriage the parties had acquired numerous vehicles, including a Ford F250 pickup truck, a fifth-wheel camper, two passenger vans, four motorcycles, two automobiles, a pontoon boat and trailer, two jet skis, two four-wheelers, and four dirt bikes. The wife estimated the total value of the vehicles and household items to be $42,300. The husband paid for most of the vehicles and items with cash, and the title to most of the vehicles was in his name only. The titles to the Ford F250 truck and the camper were in both the parties' names, and one of the motorcycles was in the wife's name. The evidence indicated that the husband sold some of the vehicles and the pontoon boat while the divorce action was pending.

As to the issues of contempt, the husband testified that he had removed the wife from his health-insurance policy in December 2015 even though that conduct was prohibited by the standing pendente lite order. The husband said that he had removed the wife from the policy at her request because, he said, the wife had told him she was obtaining health-insurance through her employer. The wife testified that the husband had told her that he was removing her from his health-insurance coverage in December 2015 because, she said, he had told her it was going to cost him an extra $100 each month. Accordingly, the wife said, she was required to purchase her own policy while the divorce action was pending.

The husband also testified that he did not pay the wife the amount of pendente lite child support the trial court had ordered because, he said, his attorney had told him "they had reached an agreement to pay $1,303" and that, subsequently, the wife had agreed for the husband to pay her "200-some-odd dollars" in subsequent months.

After the trial, the trial court entered a judgment that, among other things, awarded the wife sole physical custody of the child subject to the husband's visitation, ordered the husband to pay the wife $1,284 in monthly child support, and ordered the husband to pay the wife $18,000 pursuant to the antenuptial agreement and $21,150, representing half of the value of the vehicles and household items acquired during the marriage. Additionally, the trial court found the husband in contempt for (1) failing to pay the wife the correct amount of pendente lite child support and directed him to pay the wife $2,139 for unpaid child support; (2) removing the wife from his health-insurance policy and directed him to pay $4,576 for the amount the wife had paid to secure health-insurance from January 2016 through the date of the trial; and (3) selling items of personal property acquired during the marriage during the pendency of the divorce action, in violation of the standing pendente lite order. The trial court found that, as to the latter ground for contempt, the husband had committed at least three separate acts: selling the pontoon boat, the trailer, and the Ford F250 pickup truck. The husband was sentenced to 15 days in jail, but the sentence was suspended.

Both parties filed motions to alter, amend, or vacate the judgment. The trial court denied both motions, and the husband filed a timely notice of appeal.

On appeal, the husband maintains that the trial court erred in finding him in contempt for violating certain provisions of the standing pendente lite order ("the standing order") because, he says, the standing order was invalid. Specifically, the husband contends that "the standing pendente lite order was entered without notice to the husband" and without a Rule 65(b), Ala. R. Civ. P., certification. Therefore, he says, the standing order was invalid and could not support a finding of contempt.

The record dispels the premise on which the husband's argument is based. The husband filed a motion on March 19, 2015, the same day he filed his answer, asking the trial court to enter the standing order.

"The law is well settled that a party may not induce an error by the trial court and then attempt to win a reversal based on that error. 'A party may not predicate an argument for reversal on "invited error," that is, "error into which he has led or lulled the trial court." ' Atkins v. Lee, 603 So.2d 937, 945 (Ala. 1992) (quoting Dixie Highway Express, Inc. v. Southern Ry., 286 Ala. 646, 651, 244 So.2d 591, 595 (1971) ). 'That doctrine [of invited error] provides that a party may not complain of error into which he has led the court.' Ex parte King, 643 So.2d 1364, 1366 (Ala. 1993).
'A party cannot win a reversal on an error that party has invited the trial court to commit.' Neal v. Neal, 856 So.2d 766, 784 (Ala. 2002). See also Liberty Nat'l Life Ins. Co. v. Beasley, 466 So.2d 935, 937 (Ala. 1985) ; State Farm Mut. Auto. Ins. Co. v. Humphres, 293 Ala. 413, 418, 304 So.2d 573, 577 (1974)."

Mobile Infirmary Med. Ctr. v. Hodgen, 884 So.2d 801, 808 (Ala. 2003). The husband requested the entry of the standing order; he cannot now claim that that order is invalid and that his failure to follow the standing order cannot be used as a basis for contempt.

The husband also argues that, even if the trial court could find him in contempt for violating the standing order, its calculation of the amount the husband owed the wife based on her need to procure health insurance during the pendency of the litigation was in error.

As to this issue, the trial court found that,

"[f]or the entire year of 2016, the [wife] paid $48 per week for her health insurance. For the year 2017, to the date of trial, she had been forced to incur an expense of $60 per week for her health insurance.... The Court finds that the [wife] was caused to incur charges in the amount of $4,576 for payment of her own health insurance from January of 2016 to the date of trial...."

The trial was held on July 31, 2017.

In his motion to alter, amend, or vacate, the husband stated that the amount of this award was not supported by the evidence, but he did not set forth the basis for his contention. Nonetheless, we conclude the husband has sufficiently raised the issue of the amount of the award to the wife to reimburse her for the amount she paid for health insurance during the relevant period so as to preserve the issue on appeal.

In his brief on appeal, the husband argues that, based on the trial court's findings, he owed $2,496 for the year 2016 ($48 x 52 = $2,496). January 1, 2017, through the trial date of July 31, 2017, is 30 weeks and 1 day. Therefore, the husband has calculated, he owed the wife $1,800 for the year 2017 ($60 x 30 = $1,800), for a total of $4,296. Using the trial court's own figures, the order requiring the husband to pay $4,576 is $280 more than the amount the wife actually paid for health-insurance coverage. We are unable to determine how the trial court reached its final calculation of $4,576. Accordingly, that portion of the judgment ordering the husband to pay the wife $4,576 to cover the cost of her health insurance is reversed, and the cause is remanded for the trial court to recalculate the amount owed based on the figures it set forth in its findings.

The husband also argues that the trial court erred in finding him in contempt for failing to pay the full $1,660 each month for pendente lite child support, as set forth in the amended pendente lite order entered on April 28, 2015. The husband argues that the amount of pendente lite support the trial court awarded was not in compliance with Rule 32, Ala. R. Jud. Admin.

"Ordinarily, on appeal from a final judgment of divorce, this court cannot review the merits of a pendente lite order. As we explained in Morgan v. Morgan, 183 So.3d 945, 966 (Ala. Civ. App. 2014) :
" 'A pendente lite order is replaced by the entry of a final judgment. Reid v. Reid, 897 So.2d 349, 355 (Ala. Civ. App. 2004) ("A pendente lite order is one entered during the pendency of litigation, and such an order is generally replaced by a final judgment."). Thus, a pendente lite order is not made final by the entry of a final judgment such that it may be appealed as a part of the final judgment. Rather, the review of a pendente lite support order "is by way of mandamus, inasmuch as it is not a final [judgment]." Sizemore v. Sizemore, 423 So.2d 239, 241 (Ala. Civ. App. 1982). See also Ashbee v. Ashbee, 431 So.2d 1312, 1313 (Ala. Civ. App. 1983) ("As to the wife's claim that alimony pendente lite should have been awarded, we note that the proper method of seeking appellate review of such an action on the part of the trial court is through a petition for a writ of mandamus.... Since this issue has been raised improperly, we are unable to consider it [in an appeal of a final divorce judgment].") (citing Sizemore v. Sizemore, supra). Accordingly, the husband may not raise issues pertaining to the propriety of the ... pendente lite support order in th[e] appeal of the final divorce judgment.' "

Person v. Person, 236 So.3d 90, 95 (Ala. Civ. App. 2017). Accordingly, the husband may not obtain review of the provisions of the April 28, 2015, amended pendente lite order in this appeal. See J.S. v. S.L., 244 So.3d 120 (Ala. Civ. App. 2017).

The husband next argues that the trial court erred by failing to enforce the antenuptial agreement as written. Specifically, the husband argues that the trial court erred in awarding the wife $18,000 pursuant to the HELOC provision of the agreement and awarding her an additional $21,150, representing half of the value of the personal property the parties had acquired during the course of the marriage.

The HELOC provision appears in that part of the antenuptial agreement stipulating that the husband would retain the house he owned before the marriage ("the house") if the parties divorced. The parties lived in the house during the course of the marriage. The agreement noted that, at the time it was executed, there was an outstanding balance of $36,000 on the HELOC, secured by the house, and that the husband "will pay [the wife] the amount of $18,00 less half the outstanding balance on the loan."

The husband asserts that, because at the time of the divorce the HELOC had an outstanding balance of $39,000, and half of that amount--$19,500--exceeded the $18,000 that was to be given to the wife, he owed the wife nothing under the HELOC provision. The wife asserts that the parties had paid the balance of the HELOC down to zero during the course of the marriage. She claims that, without her knowledge, in the weeks surrounding her filing of the divorce complaint, the husband withdrew $39,000 from the HELOC for his own use. In its judgment, the trial court found that the husband's withdrawal from the HELOC "occurred at the moment that the parties had begun experiencing extreme marital discord, as evidenced by the testimony of the parties. The Court finds that the [husband's] removal of these funds was done with the intent of depriving the [wife] of the amount due to her per the parties' antenuptial agreement." The trial court then awarded the wife $18,000.

Without expressing a reason or presenting a legal analysis, the husband maintains that the HELOC provision is not ambiguous and, therefore, that the trial court could not look beyond the agreement itself to determine how much the wife was to be awarded pursuant to that provision. In other words, he appears to argue--without supporting authority--that, because at the time the divorce complaint was filed the outstanding balance on the HELOC was $39,000, the trial court must use that amount as the starting point for determining the amount the wife is owed under the HELOC provision. The husband does not argue that the evidence does not support the trial court's interpretation of the antenuptial agreement. "When an appellant fails to argue an issue in its brief, that issue is waived." Boshell v. Keith, 418 So.2d 89, 92 (Ala. 1982).

" '[I]n Alabama, when the terms of a contract are unambiguous, the contract's construction and legal effect become a question of law for the court, and when appropriate may be decided by summary judgment. Jehle-Slauson Constr. Co. v. Hood-Rich, Architects and Consulting Engineers, 435 So.2d 716, 720 (Ala. 1983) (citations omitted). However, when the terms of a contract are ambiguous in any respect, the determination of the true meaning of the contract is a question of fact for the [fact-finder]. Hall v. Integon Life Ins. Co., 454 So.2d 1338 (Ala. 1984). Whether a contract is ambiguous is a question of law for the court. Hartford [Accident & Indem. Co. v. Morgan Cnty. Ass'n of Volunteer Firefighters, 454 So.2d 960 (Ala. 1984) ].' "

Ocean Reef Developers II, LLC v. Maddox, 96 So.3d 870, 872-73 (Ala. Civ. App. 2012) (quoting Colonial Bank of Alabama v. Coker, 482 So.2d 286, 291 (Ala. 1985) ).

The undisputed evidence indicates that, at the time the agreement was executed, the existing home-equity loan had an "outstanding balance of $36,000." During the marriage, the loan referenced in the HELOC provision was paid in full; there was no longer an outstanding balance on the loan. The agreement is silent as to the treatment of any future withdrawals that may have been made on the HELOC after the initial balance was repaid. Based on the husband's argument and the record before us, we cannot say that, as a matter of law, the trial court erred in determining that, under the HELOC provision, the wife was to be paid the full $18,000 promised to her in the antenuptial agreement.

The husband also argues that the trial court erred in awarding the wife $21,150, representing half of the value of the items of personal property the parties had acquired during the marriage. Without citing any authority, the husband contends that at least some of that property "should be considered [his] separate estate under the antenuptial agreement and therefore not subject to division."

"This Court will not 'create legal arguments for a party based on undelineated general propositions unsupported by authority or argument.' Spradlin v. Spradlin, 601 So.2d 76, 79 (Ala. 1992). Further, it is well settled that ' "[w]here an appellant fails to cite any authority for an argument, this Court may affirm the judgment as to those issues, for it is neither this Court's duty nor its function to perform all the legal research for an appellant." ' Spradlin v. Birmingham Airport Auth., 613 So.2d 347, 348 (Ala. 1993) (quoting Sea Calm Shipping Co., S.A. v. Cooks, 565 So.2d 212, 216 (Ala. 1990) )."

Allsopp v. Bolding, 86 So.3d 952, 960 (Ala. 2011).

The husband failed to make a legal argument supported by authority to demonstrate that items the parties acquired during the course of the marriage should have been part of his separate estate. Because his argument does not comply with Rule 28(a)(10), Ala. R. App. P., we will not consider it. Travelers Indem. Co. of Connecticut v. Worthington, 252 So.3d 645 (Ala. 2017).

Furthermore, the husband asserts that the trial court's valuation of the property at issue is unsupported by the evidence. The record indicates that the personal property at issue was identified on a list that was admitted without objection during the trial. The wife included her estimation of the value of each item of property on the list. The wife also submitted evidence, again without objection, of the amounts of money she provided to the husband toward the purchase of several items of the listed personal property. The husband did not challenge the values during his examination of the wife at trial.

" 'The [ore tenus] rule applies to "disputed issues of fact," whether the dispute is based entirely upon oral testimony or upon a combination of oral testimony and documentary evidence. Born v. Clark, 662 So.2d 669, 672 (Ala. 1995). The ore tenus standard of review, succinctly stated, is as follows:
" ' "[W]here the evidence has been [presented] ore tenus, a presumption of correctness attends the trial court's conclusion on issues of fact, and this Court will not disturb the trial court's conclusion unless it is clearly erroneous and against the great weight of the evidence, but will affirm the judgment if, under any reasonable aspect, it is supported by credible evidence." '
" Reed v. Board of Trs. for Alabama State Univ., 778 So.2d 791, 795 (Ala. 2000) (quoting Raidt v. Crane, 342 So.2d 358, 360 (Ala. 1977) )."

Spencer v. Spencer, 258 So.3d 326, 327-28 (Ala. 2018).

The record refutes the husband's contention that the trial court's award of $21,150 to the wife, representing half of the value of personal property acquired during the marriage, is arbitrary and not supported by the evidence. Accordingly, we will not hold the trial court in error as to this issue.

The husband next argues that the trial court erred in failing to award the parties joint physical custody of the child. In making his argument, the husband correctly notes that it is the policy of this state "to encourage parents to share in the rights and responsibilities of rearing their children after the parents have separated or dissolved their marriage" and that joint physical custody is to be considered in every case. § 30-3-150, Ala. Code 1975. He argues that the evidence in this case demonstrates that joint physical custody should have been awarded in this case.

"When the trial court makes an initial custody determination, neither party is entitled to a presumption in his or her favor, and the 'best interest of the child' standard will generally apply. Nye v. Nye, 785 So.2d 1147 (Ala. Civ. App. 2000) ; see also Ex parte Byars, 794 So.2d 345 (Ala. 2001). In making an initial award of custody based on the best interests of the children, a trial court may consider factors such as the ' "characteristics of those seeking custody, including age, character, stability, mental and physical health ... [and] the interpersonal relationship between each child and each parent." ' Graham v. Graham, 640 So.2d 963, 964 (Ala. Civ. App. 1994) (quoting Ex parte Devine, 398 So.2d 686, 696-97 (Ala. 1981) ).... Other factors the trial court may consider in making a custody determination include 'the sex and age of the [children], as well as each parent's ability to provide for the [children's] educational, emotional, material, moral, and social needs.' Tims v. Tims, 519 So.2d 558, 559 (Ala. Civ. App. 1987). The overall focus of the trial court's decision is the best interests and welfare of the children."

Steed v. Steed, 877 So.2d 602, 604 (Ala. Civ. App. 2003).

Furthermore, when evidence is presented ore tenus, the trial court is " 'unique[ly] position[ed] to directly observe the witnesses and to assess their demeanor and credibility.' " Ex parte T.V., 971 So.2d 1, 4 (Ala. 2007) (quoting Ex parte Fann, 810 So.2d 631, 633 (Ala. 2001) ). Therefore, a presumption of correctness attaches to a trial court's factual findings premised on ore tenus evidence. Ex parte J.E., 1 So.3d 1002, 1008 (Ala. 2008).

The record demonstrates that, as to both parties, the evidence regarding parental involvement and capabilities was not fully developed. The wife testified that she and the child, a daughter who was seven years old at the time of the trial, engaged in activities together. The husband presented evidence suggesting that the wife had physically abused the child because the child had suffered scrapes and bruises and her elbows had been dislocated on at least two occasions. The husband had admitted to the district attorney's office that he had physically abused one of his older children, and he had served 100 hours of community service for the offense.

The wife testified that, in her opinion, she and the husband would not be able to co-parent the child. The husband said that he did not see a reason why they would not be able to do so. The trial judge, who was able to observe the parties and how they communicated and interacted with each other, was free to believe the wife's opinion. Based on the record before us and the standard of review we must apply in this context, we cannot conclude that the trial court's judgment awarding the wife primary physical custody of the child was not in the child's best interest or was otherwise in error. The husband has failed to demonstrate a basis for reversal as to this issue.

Finally, the husband maintains that the trial court erred in calculating his child-support obligation. In the judgment, the trial court ordered the husband to pay $1,284 each month in child support. The judgment stated that the amount was calculated in accordance with the child-support guidelines in Rule 32, Ala. R. Jud. Admin.

In his appellate brief, the husband states that the trial court failed to enter a child-support-guidelines form, Form CS-42, as required by Rule 32(E), Ala. R. Jud. Admin. He then asserts that the trial court's calculation was in error, but he fails to advise this court of how the calculation is incorrect or what he believes the proper calculation should be.

"This court has stated:

" 'In reaching its child-support determination, the trial court also did not incorporate the required forms into its judgment. See Rule 32(E), Ala. R. Jud. Admin. The record does not contain a CS-42 form setting forth the method by which the trial court determined child support, and using the figures set forth in the CS-41 forms submitted by the parties does not result in the child-support determination reached by the trial court. We note that this court may affirm a child-support award if such forms are not contained in the record when the court is able to determine, from the evidence in the record, how the trial court reached its child-support calculation. Hayes v. Hayes, 949 So.2d 150, 154-55 (Ala. Civ. App. 2006).'
" Griffin v. Griffin, 159 So.3d 67, 72 (Ala. Civ. App. 2014). In this case, the record does not contain a CS-42 Child-Support Guidelines form or a CS-41 income affidavit prepared by the father. As in Griffin,
" 'this court is unable to determine from the evidence in the record the figures the trial court used in reaching its child-support determination. The trial court's failure to incorporate into its judgment the required child-support forms leaves this court unable to review the mother's argument on appeal. Accordingly, we reverse the judgment as to this issue and remand the case for the trial court to enter a child-support judgment that complies with Rule 32, Ala. R. Jud. Admin. C.M.M. v. S.F., 975 So.2d 975, 982 (Ala. Civ. App. 2007) ; Wilkerson v. Waldrop, 895 So.2d 347, 348-49 (Ala. Civ. App. 2004).'
" 159 So.3d at 72. Accordingly, we must reverse that portion of the judgment modifying the father's child-support obligation and remand the case for the trial court to comply with Rule 32, Ala. R. Jud. Admin."

Farquhar v. Farquhar, 190 So.3d 524, 525-26 (Ala. Civ. App. 2015).

In this case, both parties submitted a Form CS-41, a child-support-income affidavit, in compliance with Rule 32(E), Ala. R. Jud. Admin. Applying the information contained in those forms to the Rule 32 child-support guidelines, this court does not reach the same result as the trial court. Because the trial court did not incorporate a Form CS-42 calculating child support, we are unable to review the husband's argument that the trial court's calculation is incorrect. Therefore, as in Farquhar and Griffin v. Griffin, 159 So.3d 67 (Ala. Civ. App. 2014), we must reverse the judgment as to the issue of child support and remand the case for the trial court to comply with the requirements of Rule 32, Ala. R. Jud. Admin.

For the reasons set forth above, those portions of the trial court's judgment awarding the wife an amount to cover the cost of her health insurance and determining the husband's child-support obligation are reversed. The cause is remanded for the trial court to make the appropriate calculations in determining the health-insurance award and to comply with Rule 32, Ala. R. Jud. Admin., in determining child support. The remainder of the judgment is affirmed.

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

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

Donaldson, J., concurs in part and concurs in the result in part, with writing.

DONALDSON, Judge, concurring in part and concurring in the result in part.

I concur with all portions of the main opinion except the portion addressing the arguments of Michael J. Bedard ("the husband") regarding the awards to Sharon Bedard involving matters addressed by the parties' antenuptial agreement -- specifically, the awards relating to the home-equity line of credit and the personal property acquired during the marriage. In my opinion, the husband sufficiently presents and supports his arguments in his brief seeking to reverse those awards; however, because I believe the awards are due to be affirmed on the merits, I concur in the result reached on those issues.