author: MOORE, Judge. MOORE, Judge.

text:
    K.W.N. v. H.G.T. K.W.N. v. S.A.M.
    2071162 and 2071163.
    Court of Civil Appeals of Alabama.
    June 26, 2009.
    Opinion Overruling Rehearing in No. 2071163 Aug. 28, 2009.
    Certiorari Denied in No. 2071162 Sept. 11, 2009 Alabama Supreme Court 1081330.

      Daniel L. Forman, Decatur, for appellant.
    Laura S. Chain of White Arnold & Dowd P.C., Birmingham, for appellees.
   MOORE, Judge.

In case no. 2071162, K.W.N. (“the mother”) appeals from a judgment entered by the Cullman Juvenile Court awarding custody of her minor child, C.T., to H.G.T., the father of C.T. We affirm.

In case no. 2071168, the mother appeals from a judgment entered by the Cullman Juvenile Court awarding custody of another one of her minor children, K.M., to S.A.M., the father of K.M. We dismiss the appeal as being from a void judgment.

Facts and Procedural History

On February 21, 2000, the mother and H.G.T., who were not married to one another, had a child, C.T. C.T. was the mother’s second child. On January 31, 2001, the Cullman Juvenile Court adjudicated H.G.T. to be the father of C.T. H.G.T. was awarded visitation and ordered to pay child support. On May 20, 2002, the mother filed a motion requesting that the juvenile court order H.G.T.’s visitation to be supervised and/or terminated, and, on May 24, 2002, the juvenile court entered an order requiring that, pending further order, H.G.T.’s visitation be supervised. On September 13, 2002, H.G.T. filed a motion to rescind the supervised-visitation order; the court denied that motion on October 1, 2002.

On July 8, 2003, the mother gave birth to a third child, KM. On April 6, 2005, the Shelby Circuit Court adjudicated S.A.M. to be the father of K.M. The mother was awarded primary physical custody of K.M., and S.A.M. was awarded visitation and ordered to pay child support.

According to H.G.T., in August 2005, he asked the mother and K.D.S., the maternal grandmother of M.E. (the mother’s first child, see note 2, supra), C.T., and K.M. (“the grandmother”), to take C.T. to the dentist and the mother and the grandmother told him that they would take him in April. In the beginning of 2006, according to H.G.T., the mother began denying him visitation with C.T. On March 22, 2006, H.G.T. filed in the Shelby Juvenile Court a petition seeking a rule nisi and the removal of his visitation restrictions. H.G.T. subsequently modified that petition, requesting that he be awarded custody of C.T. and that the mother be ordered to pay child support. The Shelby Juvenile Court subsequently transferred those proceedings to the Cullman Juvenile Court; those proceedings were assigned case nos. CS-00-56.01, CS-00-56.02, and CS-00-56.03.

Also in March 2006, the mother met W.N.; she married him in April 2006. Shortly thereafter, W.N. and the mother made plans to move to Colorado. On June 15, 2006, the grandmother filed petitions in the Cullman Juvenile Court alleging that M.E., C.T., and KM. were dependent and requesting that the court award her emergency custody of the children. That same day, the juvenile court awarded the grandmother pendente lite custody of the children. The mother testified that the grandmother had told her that if she would move back to Alabama, she would dismiss her dependency petitions.

On March 8, 2007, S.A.M. filed a petition in the Shelby Circuit Court requesting custody of K.M. He also requested that his petition be transferred to the Cullman Juvenile Court. The Shelby Circuit Court transferred the case to the Cullman Juvenile Court on July 13, 2007; the case was assigned case no. CS-07-138. On August 29, 2007, S.A.M. filed a dependency petition in the Cullman Juvenile Court seeking custody of K.M.; that case was assigned case no. JU-07-299.02. The next day, the grandmother filed another dependency petition in the Cullman Juvenile Court (hereinafter referred to as “the juvenile court”) seeking custody of K.M.; that petition was assigned case number JU-06-299.03. All four of the grandmother’s dependency petitions were dismissed; however, H.G.T., K.M., and J.E. (the mother’s former husband and M.E.’s father, see note 2, supra) requested that the dismissals be set aside for the limited purpose of allowing them to seek sanctions against the grandmother in those cases. The record does not indicate whether the dismissals were ever set aside.

In November 2007, the mother gave birth to her fourth child, whose father is W.N. After a hearing, at which the mother and the grandmother failed to appear, the juvenile court entered orders on November 16, 2007, awarding custody of C.T. to H.G.T. and awarding custody of K.M. to S.A.M.; the orders authorized law enforcement to assist H.G.T. and S.A.M. in effectuating the orders. Thereafter, H.G.T. and S.A.M., along with J.E., traveled with law enforcement to Nebraska to pick up the children. H.G.T. and S.A.M. telephoned the mother and informed her that they had been awarded custody of C.T. and K.M., respectively. Ultimately, the fathers met the mother at a park. It is undisputed that the mother and W.N. arrived with Nebraska police officers and a cameraman from a local television station. H.G.T. testified that W.N. was also videotaping the events. The fathers were not allowed to take the children or to visit with them. In December 2007, H.G.T. and S.A.M., along with J.E., again went to Nebraska to retrieve their respective children. J.E. testified that, when they arrived at the mother’s house, the grandmother was there with three pick-up trucks, a U-Haul truck, and packed boxes.

On December 26, 2007, the mother filed a notice of appeal from the November 16, 2007, orders; this court dismissed the appeal as being from nonfinal judgments. On February 19, 2008, the juvenile court, upon the mother’s motion, vacated the November 16, 2007, orders. The juvenile court held final hearings on H.G.T.’s and S.A.M.’s petitions to modify custody on March 12, March 13, and June 10, 2008.

At trial, H.G.T. testified that most of C.T.’s teeth are decayed and that, after he obtained custody of C.T., he took C.T. to the dentist to have his dental issues addressed. H.G.T. further testified that, at the time he obtained custody of C.T., C.T. was not potty-trained and that, while in the mother’s custody, C.T. had had to go to the emergency room due to impaction of his bowels. S.A.M. testified that, during the time that he and the mother were in a relationship, he had tried to help potty-train C.T. but that the mother had not wanted anything to do with the discipline of C.T. H.G.T. testified at the final day of the trial that, since C.T. had been in his custody, he had been completely potty-trained. H.G.T. testified that the mother and the grandmother had allowed C.T. to race a motorcycle and that he had wrecked and cut his leg. The mother and the grandmother testified that the motorcycle H.G.T. referred to was actually a “pit bike” and that it was “governed down.”

The mother admitted that, in the 8 years of C.T.’s life, she had moved approximately 8 times and had had approximately 11 different jobs. The mother testified at trial that she was not presently employed, that her grandfather was supporting her financially, and that she was living in Huntsville in a four-bedroom house.

H.G.T. testified that the mother had denied him visitation with C.T. multiple times. He testified that the mother had told him that he did not have any parental rights unless she said he did. The mother testified that the grandmother had tried to control the mother’s children’s visitation with their fathers. S.A.M. testified that the mother had told him that, because the grandmother paid for the mother’s cars and house, the mother could not control the grandmother. H.G.T. testified that on most of his visits with C.T. he had picked up C.T. from, and returned him to, the grandmother. The mother testified that the children had lived with the grandmother during the week each summer. H.G.T. testified that he had not known about that arrangement. The grandmother testified that a sex offender had lived on her property in the past but that, at the time of the trial, he was living across the road from her property. The grandmother testified that the sex offender comes over to her house and that children may see the sex offender but that they have no physical contact with him. The mother testified that she would not let the grandmother control her anymore; however, the mother testified that she had exercised visitation at the grandmother’s house between the March and June 2008 hearings.

The mother admitted that she and W.N. had been involved in incidents of domestic violence. The mother’s oldest child, M.E., testified that she had been present during one of those incidents. The mother testified at trial that she and W.N. were physically separated but that they were not legally separated. The mother also admitted that she had allowed the children’s insurance to lapse at times.

H.G.T. testified at trial that he had lived in his mother’s house in Vestavia for the past 10 years. He testified that his mother, who had been a missionary in Bolivia, was moving back to her house in Vestavia the weekend after the March hearing and that, because of that, he had purchased a 2,020-square-foot, 4-bedroom, 3-bath, new house in Vestavia. He testified that the house is 1/4 of a mile from the school that C.T. would attend. H.G.T. testified that the Vestavia school district is the 13th best school district in Alabama. H.G.T. testified that he has a daughter, who is younger than C.T. and lives with her mother, and that she and C.T. love each other.

H.G.T. testified that he had been consistently employed in the banking industry for the past 13 years and that his annual gross income is $80,150. H.G.T. testified that he can provide stability for C.T. He testified that he makes C.T. eat right, brush his teeth, do chores, and do his homework, and that he does not allow C.T. to drink sodas. H.G.T. testified that C.T. makes good grades. H.G.T. also testified that, since C.T. had been in his custody, he, J.E., and S.A.M. had worked together to allow C.T., K.M., and M.E. to see each other. He testified that J.E. and M.E. had spent the night at his home. J.E. testified that H.G.T.’s house is very clean. H.G.T. further testified that, since C.T. had been in his custody, he had allowed the mother to have more visitation than had been required by the temporary order.

The mother testified that H.G.T. had come to only one of C.T.’s baseball games and that he had not visited with C.T. consistently until C.T. was about one and a half years old. She also testified that H.G.T. had made false allegations to the Department of Human Resources concerning her treatment of C.T.

After the trial, the juvenile court entered a judgment in case nos. CS-00-56.01, CS-00-56.02, and CS-00-56.03 finding that a material change in circumstances had occurred and awarding primary custody of C.T. to H.G.T.; in CS-07-138, the juvenile court entered a judgment finding that a material change in circumstances had occurred, awarding custody of K.M. to S.A.M., and denying all further relief requested. The mother filed a timely postjudgment motion in each case; those motions were denied. The mother timely filed her notices of appeal with this court.

Discussion

I. Case No. 2071163

Although neither party challenges the jurisdiction of the juvenile court to determine custody regarding K.M., “[jjurisdictional matters are of such importance that a court may take notice of them ex mero motu.” McMurphy v. East Bay Clothiers, 892 So.2d 395, 397 (Ala.Civ.App.2004).

“Juvenile courts are purely creatures of statute and have extremely limited jurisdiction.” T.B. v. T.H., 30 So.3d 429, 431 (Ala.Civ.App.2009). “A juvenile court has jurisdiction in proceedings involving a child who is alleged to be dependent, § 12-15-30(a), Ala.Code 1975, and in custody proceedings when the child is ‘otherwise before the court.’ § 12—15—30(b)(1), Ala. Code 1975.” K.S. v. H.S., 18 So.3d 417, 418 (Ala.Civ.App.2009). Although dependency petitions with “JU” case designations had been filed concerning K.M., the juvenile court did not modify custody of K.M. in the context of those proceedings; instead, it modified custody of K.M. in the context of a custody-modification proceeding in case no. CS-07-138. See, e.g., T.B., 30 So.3d at 432. The juvenile court’s order indicated that it found a material change in circumstances, language consistent with the standard to be applied to a regular custody-modification case, not a dependency case.

Furthermore, K.M. was not “otherwise before the court,” because the judgment adjudicating KM.’s paternity and making the initial custody determination as to K.M. was not entered by a juvenile court. Having found no basis for the juvenile court to exercise jurisdiction over S.A.M.’s custody-modification petition, we must conclude that the juvenile court’s judgment awarding primary physical custody of K.M. to S.A.M. is void. ‘“[A] judgment entered without subject-matter jurisdiction is void, ... and ... a void judgment will not support an appeal.’ ” T.B., 30 So.3d at 433 (quoting K.R. v. D.H., 988 So.2d 1050, 1052 (Ala.Civ.App.2008)). Thus, we must dismiss the appeal. T.B., 30 So.3d at 433.

II. Case No. 2071162

In case no. 2071162, the mother first challenges the June 15, 2006, order awarding temporary custody of C.T. to the grandmother. We note, however, that that order was not a final order and that the juvenile court ultimately awarded custody of C.T. to H.G.T. pursuant to the custody-modification proceeding instituted by H.G.T. Accordingly, the propriety of the temporary-custody order is moot. See, e.g., L.R.M. v. D.M., 962 So.2d 864, 872 n. 7 (Ala.Civ.App.2007).

The mother next challenges the juvenile court’s judgment awarding custody to H.G.T. Before addressing the merits of the mother’s argument, we address whether the juvenile court had jurisdiction to modify custody of C.T. In W.B.G.M. v. P.S.T., 999 So.2d 971 (Ala.Civ.App.2008), this court stated:

“When a juvenile court has jurisdiction to make an initial child-custody determination, it retains jurisdiction over a petition to modify that custody judgment to the exclusion of any other state court until the child reaches 21 years of age or the juvenile court terminates its jurisdiction. See Ala.Code 1975, § 12-15-82. Moreover, once a juvenile court enters a custody judgment in a paternity action under the Alabama Uniform Parentage Act, that court ‘retain[s] jurisdiction of the cause for the purpose of entering such other and further orders as changing circumstances of the parties may in justice and equity require.’ Ala.Code 1975, § 26-17-10(e); see generally State ex rel. B.G. v. J.F.P., 721 So.2d 213, 217-18 (Ala.Civ.App.1998)....
“In the present case, § 12-15-31(2), Ala.Code 1975, conferred exclusive jurisdiction on the juvenile court to decide the issue of paternity. Once the children were before the court on the paternity issue, § 12—15—30(b)(2) gave the juvenile court exclusive original jurisdiction to decide the issue of who should be awarded custody of the children, and the juvenile court exercised that jurisdiction by awarding custody of the children to the mother. Based on § 12-15-32 and § 26-17-10(e), the juvenile court retained jurisdiction to consider any petition to modify its custody judgment unless it terminated that jurisdiction by its own order. Because there is no evidence indicating that the juvenile court terminated its jurisdiction, it is the only court in this state with jurisdiction to modify its custody judgment.”

999 So.2d at 974-75.

Similarly, in the present case, the juvenile court had previously exercised its exclusive jurisdiction to decide the issue of C.T.’s paternity. Once C.T. was before the court on that issue, § 12-15-30(b)(2) gave the juvenile court exclusive original jurisdiction to decide the issue of C.T.’s custody, and the juvenile court exercised that jurisdiction by awarding the mother custody of C.T. Pursuant to § 12-15-32 and § 26-17-10(e), the juvenile court retained jurisdiction to consider H.G.T.’s petition to modify its custody judgment unless it terminated that jurisdiction by its own order. There is nothing in the record indicating that the juvenile court terminated its jurisdiction; thus, the juvenile court had jurisdiction to modify its initial custody judgment.

Having determined that the juvenile court had jurisdiction to modify the custody of C.T., we now address the merits of the mother’s challenge to the juvenile court’s custody-modification judgment. First, the mother argues that the juvenile court exceeded its discretion in determining that H.G.T. had met the standard set out in Ex parte McLendon, 455 So.2d 863 (Ala.1984).

“A parent seeking to modify a custody judgment awarding primary physical custody to the other parent must meet the standard for modification of custody set forth in Ex parte McLendon[, 455 So.2d 863 (Ala.1984) ]. Under that standard, the parent seeking to modify custody of a child must demonstrate that there has been a material change in circumstances, that the proposed change in custody will materially promote the child’s best interests, and that the benefits of the change will more than offset the inherently disruptive effect caused by uprooting the child. Ex parte McLendon, supra.

Adams v. Adams, 21 So.3d 1247, 1252 (Ala.Civ.App.2009).

In the present case, the evidence indicated, among other things, that, since the initial determination of custody, the mother had lived a highly unstable lifestyle, had denied H.G.T. visitation with C.T., had neglected C.T.’s dental health, and had failed to potty-train C.T. Also, H.G.T. testified that the mother had allowed C.T. to race a motorcycle and that C.T. had been injured as a result. The evidence also indicated that there had been incidents of domestic violence between the mother and her current husband, including one incident that had occurred in M.E.’s presence. Further, the mother had allowed the grandmother to exert control over her and the children, to the detriment of H.G.T.’s ability to exercise visitation with C.T. Based on the foregoing, we conclude that there is sufficient evidence from which the trial court could have determined that there had been a material change in circumstances since the initial custody order.

We next address whether “the proposed change in custody will materially promote the child’s best interests, and [whether] the benefits of the change will more than offset the inherently disruptive effect caused by uprooting the child.” Adams, 21 So.3d at 1252. H.G.T. testified that he had lived in the same home for the past 10 years and that he had been consistently employed in the banking industry. He had recently purchased a house with sufficient room for C.T. to live with him. H.G.T. testified that he had provided stability for C.T., ensuring that C.T.’s dental needs were met and having potty-trained C.T. by the final day of the trial. Further, H.G.T. testified that his new home was in a good school district, that he ensured that C.T. did his homework, and that C.T. had been making good grades. Finally, H.G.T. testified that he had allowed the mother more visitation than was required under the temporary order and that he had been able to work with the fathers of C.T.’s half-siblings so that the siblings could see one another. Based on the foregoing, we conclude that the change in custody would materially promote C.T.’s best interest. Furthermore, especially considering that the mother had moved eight times since C.T. was born, we conclude that “the benefits of the change will more than offset the inherently disruptive effect caused by uprooting [C.T.].” Adams, 21 So.3d at 1252.

The mother also briefly argues that there was evidence indicating that H.G.T. had committed domestic violence. We note, however, that the record reveals no such “evidence.” Further, the record contains substantial evidence indicating that the mother and her current husband have a relationship filled with domestic violence. Accordingly, we find the mother’s argument on the domestic-violence issue unpersuasive.

Conclusion

Based on the foregoing, we affirm the judgment in case no. 2071162. We dismiss the appeal in case no. 2071163 as being from a void judgment, albeit with instructions to the juvenile court to set aside its void judgment. See T.B., supra.

2071162 — AFFIRMED.

2071163 — APPEAL DISMISSED WITH INSTRUCTIONS.

THOMPSON, P.J., and PITTMAN and BRYAN, JJ., concur.

THOMAS, J., recuses herself.

On Application for Rehearing

MOORE, Judge.

On application for rehearing, S.A.M. argues that the Cullman Juvenile Court had jurisdiction to hear the custody-modification action because, he says, (1) the Shelby Circuit Court conferred jurisdiction on the Cullman Juvenile Court by transferring the action and ordering that it be consolidated with a pending dependency action and (2) the Alabama Supreme Court conferred jurisdiction on the Cullman Juvenile Court by appointing a judge to hear the custody-modification action along with the dependency action. We find both of those arguments unpersuasive.

With regard to S.A.M.’s first argument, we note that this court has determined that a circuit court’s transferring a custody-modification action to a juvenile court does not confer subject-matter jurisdiction on the juvenile court. C.D.S. v. K.S.S., 963 So.2d 125, 130 n. 5 (Ala.Civ.App.2007). With regard to the second argument, we note that the custody-modification action had already been transferred to the Cullman Juvenile Court when all the juvenile-court judges of Cullman County recused themselves and the Alabama Supreme Court appointed a judge to hear the case. That appointment did not confer subject-matter jurisdiction on the juvenile court. Instead, according to the express language of the supreme court’s order, it only conferred the “full authority of a regular circuit judge of Cullman County.”

S.A.M. also makes an argument with regard to the merits of the appeal. Because we conclude that we correctly dismissed the appeal, we have no need to address that argument.

Based on the foregoing, we overrule S.A.M.’s application for rehearing.

APPLICATION OVERRULED.

THOMPSON, P.J., and PITTMAN and BRYAN, JJ., concur.

THOMAS, J., recuses herself.

      . Because we are dismissing the appeal concerning the determination of custody of K.M., we focus on the facts as they relate to the determination of custody of C.T.

      .The mother’s first child, M.E., was born to the mother and her former husband, J.E., on July 10, 1995. The mother had custody of M.E. pursuant to a judgment divorcing her and J.E. M.E.’s custody is not the subject of this appeal.

      .The judgment adjudicating K.M.'s paternity and making the initial custody determination as to K.M. was entered by the Shelby Circuit Court. Although we recognize that " § 12-15-31(2), Ala.Code 1975, confers exclusive jurisdiction on the juvenile court to decide the issue of paternity,” W.B.G.M. v. P.S.T., 999 So.2d 971, 975 (Ala.Civ.App.2008), that judgment is not at issue in this appeal. Thus, we make no determination on the validity of that judgment.

      . Because the juvenile court awarded custody of K.M. in the. context of case no. CS-07-138, and not the dependency proceedings, the record does not indicate the ultimate disposition of the dependency proceedings. There is nothing in the record to indicate that the dependency proceedings regarding K.M. were consolidated with the "CS” custody-modification case regarding K.M.

      . The juvenile court also entered an order awarding custody of M.E. to J.E.

      . See note 3, supra.


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    Ralph EUSTACE and Martha Haislip v. Sandra BROWNING, as personal representative of the estate of Eula Cleo Eustace Styles, deceased.
    2071234.
    Court of Civil Appeals of Alabama.
    July 2, 2009.
    Certiorari Denied Sept. 11, 2009 Alabama Supreme Court 1081370.

      Gary W. Lackey, Scottsboro, for appellants.
    John F. Porter III, Scottsboro, for ap-pellee.
   On Application for Rehearing

MOORE, Judge.

This court’s opinion of April 17, 2009, is withdrawn, and the following is substituted therefor.

Ralph Eustace and Martha Haislip appeal from a judgment entered by the Madison Circuit Court. We affirm the judgment in part and dismiss the appeal in part.

Facts and Procedural History

Eula Cleo Eustace Styles (“the decedent”) died on September 11, 2004. Approximately three months before she died, the decedent had moved from her home in Jackson County to Madison County to live with her niece, Sandra Browning.

On September 20, 2004, Ralph Eustace, the decedent’s brother, filed a petition for letters of administration in the Jackson Probate Court; the Jackson Probate Court granted his request on September 23, 2004. On February 28, 2005, Sandra Browning filed in the Madison Probate Court a petition to probate the will of the decedent (“the will”) and requesting that the Madison Probate Court grant letters testamentary to her. Also on February 28, 2005, Browning filed in the Jackson Probate Court a verified petition to revoke the letters of administration that had been previously granted to Eustace. The Jackson Probate Court revoked Eustace’s letters of administration on March 21, 2005. Meanwhile, Eustace petitioned the Jackson Circuit Court for removal of the proceedings in the Jackson Probate Court, and the Jackson Circuit Court entered an order removing the proceedings from the Jackson Probate Court to the circuit court on March 23, 2005.

On March 24, 2005, Eustace filed in the Jackson Circuit Court a motion to consolidate the proceedings in the Madison Probate Court with the proceedings in the Jackson Circuit Court; the Jackson Circuit Court granted that motion and noted that Eustace would “continue as administrator.” On April 27, 2005, the Madison Probate Court admitted the will to probate and granted letters testamentary to Browning. On May 10, 2005, Browning filed in the Jackson Circuit Court a motion seeking to set aside the consolidation order and to dismiss the case; that motion was denied.

On June 14, 2005, Eustace, individually and as administrator of the decedent’s estate, and Martha Haislip, the decedent’s sister and an heir at law of the decedent, filed an “amended complaint” in the Jackson Circuit Court contesting the will based on the grounds of incapacity and undue influence, alleging that the will had been filed in the wrong venue, and alleging various tort claims based on actions that Browning had allegedly taken unrelated to the procurement of the will. On July 5, 2005, Browning filed in the Jackson Circuit Court another motion to revoke Eustace’s letters of administration, and, on July 6, 2005, Browning filed a motion to dismiss the amended complaint. On August 11, 2005, Browning filed a petition requesting that the Alabama Supreme Court issue a writ of mandamus to the Jackson Circuit Court; that petition was denied on September 5, 2005.

On October 25, 2005, Browning filed in the Madison Circuit Court a petition for removal of the proceedings from the Madison Probate Court to the circuit court, and, on October 28, 2005, the Madison Circuit Court ordered that those proceedings be removed. On April 12, 2006, Browning filed a motion requesting that the Madison Circuit Court enter a judgment declaring that the decedent had left a will, that the decedent had been a resident of Madison County at the time of her death, that Browning had complied with Alabama law in probating the will in Madison County, and that Browning is the personal representative of the decedent’s estate. Browning attached several exhibits to that motion. On June 6, 2006, Browning filed a motion for a summary judgment in the Madison Circuit Court, attaching thereto her motion requesting a declaratory judgment and the exhibits that had been attached to that motion. Eustace and Haislip filed a response to the summary-judgment motion on October 30, 2006. On November 2, 2006, the Madison Circuit Court held a hearing on Browning’s summary-judgment motion.

On November 9, 2006, Eustace and Haislip filed a motion requesting that the Madison Circuit Court transfer the proceedings pending in that court to the Jackson Circuit Court. On November 21, 2006, Browning filed in the Jackson Circuit Court a motion to dismiss or, alternatively, to transfer the action. On November 14, 2006, the Madison Circuit Court denied Eustace and Haislip’s motion to transfer.

On November 15, 2006, the Madison Circuit Court entered an order granting Browning’s motion for a summary judgment, finding that the decedent had left a will, which had been duly admitted to probate by the Madison Probate Court; that Browning had complied with Alabama law in submitting the will to probate in the Madison Probate Court; that letters testamentary had been issued to Browning on April 27, 2005; that Browning is the legitimate personal representative of the estate of the decedent; that Eustace’s letters of administration had been properly revoked by the Jackson Probate Court; that no heir or beneficiary of the decedent’s estate had filed a contest of the will in either the Madison Probate Court or the Madison Circuit Court; and that the Jackson Circuit Court’s order purporting to consolidate the Madison County proceedings with the Jackson County proceedings was void.

On February 14, 2008, the Jackson Circuit Court entered an order severing the tort claims asserted in Eustace and Hais-lip’s amended complaint from those claims related to the will (“the will contest”); the will contest was transferred to the Madison Circuit Court. On April 18, 2008, Browning filed in the Madison Circuit Court a motion to dismiss the will contest. On August 5, 2008, the Madison Circuit Court granted the motion to dismiss the will contest and made that order final, pursuant to Rule 54(b), Ala. R. Civ. P. Eustace and Haislip filed their notice of appeal to the Alabama Supreme Court on September 16, 2008; that court transferred the appeal to this court, pursuant to Ala.Code 1975, § 12-2-7(6).

Discussion

On appeal, Eustace and Haislip argue that the Madison Circuit Court erred in granting Browning’s motion for a summary judgment on the validity of the will because, they say, (1) the summary-judgment motion was not in compliance with Rule 56, Ala. R. Civ. P., (2) the Madison Circuit Court failed to review or consider Eustace and Haislip’s brief and affidavit filed in opposition to that motion, and (3) there was undisputed evidence in the record indicating that the dispositive scheme of the will favored an unnatural beneficiary and that Browning had had primary access to the decedent and had been active in the drafting of the will, thus creating a legal presumption of undue influence. Eustace and Haislip also argue that the Madison Circuit Court erred in dismissing the will contest because, they say, Browning submitted to the jurisdiction of the Jackson Circuit Court and the law of the case is that the Jackson Circuit Court was the correct venue for this case.

1. Appeal from the Summary Judgment

Initially, we note that Browning has asserted that Eustace and Haislip’s appeal from the summary judgment was untimely filed. Although the summary judgment resolved certain issues, the judgment was clear that the court retained jurisdiction to probate the estate. This court has previously held that, when a circuit court retains jurisdiction over the administration of a decedent’s estate, any order entered before the final settlement of the estate would be a nonfinal judgment unless certified as final pursuant to Rule 54(b), Ala. R. Civ. P. See Montiel v. Estate of Montiel, 976 So.2d 1043, 1044 (Ala.Civ.App.2007). In the present case, the Madison Circuit Court did not certify the summary judgment as final. Generally, “a nonfinal judgment will not support an appeal.” Naylor v. Naylor, 981 So.2d 440, 441 (Ala.Civ.App.2007).

We recognize, however, that Alabama law provides for an appeal from a probate court’s nonfinal order in certain enumerated instances. For example, Ala.Code 1975, § 12-22-21(2), provides for an appeal from a probate court’s nonfinal order “on an application claiming the right to execute a will or administer an estate.” Although § 12-22-21(2) “does not specifically provide a right to appeal from a similar order of the circuit court[, the Alabama Supreme] Court has traditionally treated such orders of the circuit court as though they were orders of the probate court.” Tate v. Kennedy, 578 So.2d 1079, 1080 n. 2 (Ala.1991). In the present case, the summary judgment declared, among other things, Browning’s right to execute the will. Thus, we conclude that, insofar as it determined Browning’s right to execute the will, the summary judgment was ap-pealable under § 12-22-21(2). See Barron v. Scroggins, 910 So.2d 780, 782 (Ala.Civ.App.2005).

On application for rehearing, Eustace and Haislip cite Johnson v. Johnson, 835 So.2d 1032 (Ala.Civ.App.2002), asserting that the holding in that case contradicts our conclusion that the summary judgment adjudicating Browning’s right to execute the will was appealable at the time of its entry. In Johnson, this court dismissed an appeal from an order on a sale-for-division issue as not being from a final judgment. 835 So.2d at 1033-34. We note, however, that, in stating that orders of the circuit court in probate cases are treated as though they were orders of the probate court for purposes of determining the right to appeal pursuant to § 12-22-21, we have followed the guidance of the most recent Supreme Court case on that issue, Tate, supra. Based on the holding in Tate, we conclude that this court’s opinion in Johnson was incorrect because the parties had the right to appeal from the order on the sale-for-division issue pursuant to § 12-22-21(7). Thus, we expressly overrule Johnson to the extent that it is in conflict with Tate and this opinion.

Appeals to the Alabama Supreme Court brought pursuant to § 12-22-21 are governed by the Alabama Rules of Appellate Procedure. § 12-22-21. Rule 4(a)(1), Ala. R.App. P., states that a party must file a notice of appeal “within 42 days (6 weeks) of the date of the entry of the judgment or order appealed from.” In the present case, Eustace and Haislip’s notice of appeal was filed more than 42 days after the entry of the summary judgment determining Browning’s right to execute the will. Rule 2(a)(1), Ala. R.App. P., provides that “[a]n appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court.” Accordingly, to the extent that Eustace and Haislip’s appeal challenges Browning’s right to execute the will, we dismiss the appeal.

II. Dismissal of the Will Contest

With regard to the dismissal of the will contest, Eustace and Haislip first argue that the will contest should not have been dismissed because, they say, Browning had submitted to the Jackson Circuit Court’s jurisdiction. Whether a will contest was filed in compliance with the applicable statutes is an issue of subject-matter jurisdiction. See, e.g., Bond v. Pylant, 3 So.3d 852, 855 (Ala.2008). Subject-matter jurisdiction cannot be waived. See, e.g., University of South Alabama Hosps. v. Blackmon, 987 So.2d 1138, 1143 (Ala.Civ.App.2007).

“In Alabama, a will may be contested in two ways: (1) under § 43-8-190, Code of Alabama 1975, before probate, the contest may be instituted in the probate court [by filing objections in the court where the will is offered for probate] or (2) under § 43-8-199, Code of Alabama 1975, after probate and within six months thereof, a contest may be instituted by filing a complaint in the circuit court of the county in which the will was probated.”

Stevens v. Gary, 565 So.2d 73, 74 (Ala.1990). “Because will contest jurisdiction is statutorily conferred, proceedings under § 43-8-190 and § 43-8-199[, Ala.Code 1975,] must comply exactly with the terms of the applicable statute.” Simpson v. Jones, 460 So.2d 1282, 1284 (Ala.1984).

Eustace and Haislip failed to file their will contest in the court where the will had been offered for probate, i.e., the Madison Probate Court, pursuant to § 43-8-190, Ala.Code 1975, or in the circuit court of the county in which the will was probated, i.e., the Madison Circuit Court, pursuant to § 43-8-199, Ala.Code 1975. Accordingly, they failed to comply with the requii'ements of either of the statutes that confer jurisdiction to entertain a will contest. Thus, we conclude that the Madison Circuit Court properly found that the will contest that the Jackson Circuit Court had transferred to that court had not been filed in compliance with the applicable statutes. Thus, the Madison Circuit Court had no subject-matter jurisdiction over the will contest. Accordingly, the Madison Circuit Court properly held that the will was valid and that Browning was the personal representative of the decedent’s estate.

Eustace and Haislip next argue that the law of the case is that the Jackson Circuit Court was the correct venue for the will contest because Browning failed to raise venue as an issue when she filed a petition for a writ of mandamus with the Alabama Supreme Court. As noted above, however, the issue in this case is one of jurisdiction, not venue. As noted previously, subject-matter jurisdiction cannot be waived, University of South Alabama Hosps., 987 So.2d at 1143, and “may be raised at any time by either the parties or by the court, ex mero motu.” State Dep’t of Revenue v. Medical Care Equip., Inc., 737 So.2d 471, 473 (Ala.Civ.App.1999). Thus, whether or not Browning raised the issue of venue in her petition for a writ of mandamus is not germane to the determinative issue in this case.

Finally, Eustace and Haislip argue that the transfer of a -will contest is authorized by Ala.Code 1975, § 43-8-197. We note, however, that § 43-8-197 does not change the requirement that a will contest must be filed in the court in which the will is offered for probate. Instead, it simply allows for a change of venue after the will contest is filed. In the present case, Eus-tace and Haislip failed to file a will contest in the Madison Probate Court, the court where the will had been offered for probate, or in the Madison Circuit Court, the circuit court of the county in which the will was probated. Accordingly, we reject Eustace and Haislip’s argument on this point.

Conclusion

Based on the foregoing, we dismiss the appeal to the extent that it challenges the summary judgment. With regard to the will contest, we affirm the trial court’s judgment.

Browning’s request for the award of attorney fees on appeal is denied.

APPLICATION GRANTED; OPINION OF APRIL 17, 2009, WITHDRAWN; OPINION SUBSTITUTED; APPEAL DISMISSED IN PART; AFFIRMED IN PART.

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

      . The petition is not in the record on appeal, and it is unclear what the petition was based upon.

      . We also point out that, as of the date the Madison Circuit Court entered the summary judgment, no will contest had been filed in that court. Thus, the Madison Circuit Court had no jurisdiction to determine whether the will had been procured by undue influence. See Bond v. Pylant, 3 So.3d 852, 854-55 (Ala.2008).


author: BRYAN, Judge.

text:
    Lorenza BEDGOOD v. Ecelia McCONICO and David Bedgood.
    2080060.
    Court of Civil Appeals of Alabama.
    July 10, 2009.
    Certiorari Denied Sept. 11, 2009 Alabama Supreme Court 1081343.

      Lorenza Bedgood, pro se.
    N.J. Cervera and Ruth L. Pawlik of Cervera, Ralph & Reeves, L.L.C., Troy, for appellees.
   BRYAN, Judge.

Lorenza Bedgood (“Lorenza”), acting pro se, appeals from a judgment ordering a sale of property for a division of the proceeds. Because Lorenza did not timely file his notice of appeal, we dismiss the appeal.

“The timely filing of a notice of appeal is a jurisdictional act. Kennedy v. Merriman, 963 So.2d 86, 88 (Ala.Civ.App.2007) (quoting Rudd v. Rudd, 467 So.2d 964, 965 (Ala.Civ.App.1985)). ‘[A]n untimely filed notice of appeal results in a lack of appellate jurisdiction, which cannot be waived.’ Parker v. Parker, 946 So.2d 480, 485 (Ala.Civ.App.2006).”

Williams v. Lollar, 8 So.3d 319, 321 (Ala.Civ.App.2008). Rule 4(a)(1), Ala. R.App. P., provides that a party must file a notice of appeal “within 42 days (6 weeks) of the date of the entry of the judgment or order appealed from.” Rule 4(a)(3), Ala. R.App. P., provides, in pertinent part:

“The filing of a post-judgment motion pursuant to Rules 50, 52, 55 or 59 of the Alabama Rules of Civil Procedure ... shall suspend the running of the time for filing a notice of appeal. In cases where post-judgment motions are filed, the full time fixed for filing a notice of appeal shall be computed from the date of the entry in the civil docket of an order granting or denying such motion. If such post-judgment motion is deemed denied under the provisions of Rule 59.1 of the Alabama Rules of Civil Procedure, then the time for filing a notice of appeal shall be computed from the date of denial of such motion by operation of law, as provided for in Rule 59.1.”

Rule 59.1, Ala. R. Civ. P., provides, in pertinent part:

“No post-judgment motion filed pursuant to Rules 50, 52, 55, or 59 shall remain pending in the trial court for more than ninety (90) days .... A failure by the trial court to dispose of any pending post-judgment motion within the time permitted hereunder ... shall constitute a denial of such motion as of the date of the expiration of the period.”

Ecelia McConico and David Bed-good filed a complaint against Lorenza and several others, seeking a sale of property for a division of the proceeds, pursuant to § 35-5-20 et seq., Ala.Code 1975. According to the State Judicial Information System, on February 20, 2007, the trial court entered an order directing that the property be sold for division. In a sale-for-division case, both the order directing the sale and the subsequent order confirming the sale are considered final judgments for purposes of appeal. Jetton v. Jetton, 502 So.2d 756, 758-59 (Ala.1987). On March 14, 2007, Lorenza filed a timely Rule 59(e), Ala. R. Civ. P., motion seeking to alter or vacate the trial court’s February 20, 2007, order, thus suspending the time for filing a notice of appeal. See Rule 4(a)(3), Ala. R.App. P. On June 12, 2007, 90 days after Lorenza filed his Rule 59(e) motion, that motion was denied by operation of law. See Rule 59.1, Ala. R. Civ. P. Consequently, the 42-day period for Lorenza to file his notice of appeal commenced running on June 12, 2007. See Rule 4(a)(3). Therefore, Lorenza had until July 24, 2007, to file his notice of appeal. Lorenza filed his notice of appeal to the supreme court on October 3, 2008, well after the time for filing an appeal had expired. Therefore, we must dismiss the appeal. See Rule 2(a)(1), Ala. R.App. P. (“An appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court.”).

Lorenza untimely filed his notice of appeal from the trial court’s February 20, 2007, order directing the sale for division. The record on appeal does not contain an order confirming any subsequent sale of the property made pursuant to the February 20, 2007, order. As noted, an order confirming a sale for division is appealable. Jetton, supra. In such an appeal, the appellant is “entitled to raise objections arising from both the initial judgment ordering the land sold, and from the judgment confirming the sale, so long as the trial judge was given an opportunity to rule on such objections.” Jetton, 502 So.2d at 759.

McConico’s “Motion for Expedited Ruling and/or[,] Alternatively, Motion to Sever” and Lorenza’s “Motion for [an] Extension of Time” to respond to McConico’s motion are denied as moot.

APPEAL DISMISSED.

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

      . The supreme court subsequently transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

      . On September 23, 2008, the trial court purported to deny Lorenza's Rule 59(e) motion. However, because Lorenza's motion had previously been denied by operation of law, the trial court's purported denial of that motion was a nullity. See Moragne v. Moragne, 888 So.2d 1280, 1282 (Ala.Civ.App.2004).


author: MOORE, Judge. THOMAS, Judge,

text:
    J.J. and W.J. v. J.B. and J.B.
    2080411.
    Court of Civil Appeals of Alabama.
    July 24, 2009.

      Steven A. Thomas, Jasper, for appellants.
   MOORE, Judge.

W.J. and J.J., the paternal grandparents of J.M.B. (“the child”), appeal from the dismissal of their dependency petition. We reverse.

Procedural History

On April 14, 2008, the paternal grandparents filed a verified petition in the Walker Juvenile Court requesting that the court determine that J.P. is the father of the child and requesting that the court award them custody of the child. The paternal grandparents alleged that J.P. “has had very little involvement with the child since her birth, does not regularly support her, has no home of his own and has been very involved with drugs and continues to be involved with drugs.” They also alleged that the mother of the child, J.L.B., has neglected and abused the child while living at the home of the child’s maternal grandparents, J.B. and J.B. The paternal grandparents further alleged that the maternal grandmother had left the home for a period, leaving the mother and the maternal grandfather to care for the child, and that the child’s maternal grandfather was unable to properly care for the child on his own. That same day, the juvenile court awarded the paternal grandparents pendente lite custody of the child and appointed a guardian ad litem for the child.

On April 30, 2008, Charles C. Tatum, Jr., filed a notice of appearance as counsel for the maternal grandparents, and, on July 9, 2008, the maternal grandparents filed a motion requesting that the court set aside the pendente lite order and award them pendente lite custody of the child. The maternal grandparents subsequently filed a motion for visitation with the child, and the court ordered that the maternal grandparents and the paternal grandparents have the child on alternating weeks.

The juvenile court also ordered that the mother, the child, and J.P. report for genetic testing; the results of the genetic testing indicated that the probability that J.P. is the father of the child is 99.99%.

On December 16, 2008, the maternal grandparents filed a motion to dismiss the cause, averring that, on December 2, 2008, they had filed a petition for adoption in the Walker Probate Court and that the child’s parents had consented to their adopting the child. The paternal grandparents filed a response in opposition to the motion to dismiss the same day. The juvenile court held a hearing on January 7, 2009.

On January 13, 2009, the juvenile court entered a judgment dismissing the case, stating that the issues raised in the dependency petition were moot because both the mother and the father had relinquished their rights to the child to the maternal grandparents and that it was in the best interest of the child and in the interest of judicial economy that the juvenile court grant the motion to dismiss so that the probate court could proceed to a ruling on the merits of the adoption petition.

On January 16, 2009, the paternal grandparents filed a motion to alter, amend, or vacate the juvenile court’s judgment; that motion was denied on January 20, 2009. The paternal grandparents filed their notice of appeal on February 3, 2009.

Discussion

I. The Maternal Grandparents’ Motion to Dismiss the Appeal

Initially, we must address the motion to dismiss the appeal filed by the maternal grandparents. The maternal grandparents argue that, because the juvenile court dismissed the dependency case without prejudice, there is no final judgment from which to appeal.

In Hutchinson v. Miller, 962 So.2d 884 (Ala.Civ.App.2007), this court addressed the question whether a judgment dismissing a case without prejudice is a final judgment from which an appeal may be taken. This court stated:

“Because the probate court’s judgment expressly stated that the action had been dismissed ‘without prejudice,’ the finality of the judgment under review may, at first glance, be questioned in light of the rule followed in Palughi v. Dow, 659 So.2d 112, 113 (Ala.1995).[] However, we distinguish Palughi on the basis that the probate court’s judgment of dismissal of the action, on the basis of lack of subject-matter jurisdiction, ‘conclusively determine[d] the issues before the court’ (659 So.2d at 113) upon the submission of the moving defendants’ motion to dismiss for lack of subject-matter jurisdiction, thus rendering the judgment final. We therefore reach the merits of the contentions raised by the parties on appeal, applying, as we must, a de novo standard of review to the probate court’s judgment. See State Dep’t of Revenue v. Arnold, 909 So.2d 192, 193 (Ala.2005).”

962 So.2d at 887.

In the present case, the juvenile court’s judgment dismissing the case stated that the issues raised in the dependency petition were moot because both the mother and the father have relinquished their rights to the child to the maternal grandparents and that it is in the best interest of the child and in the interest of judicial economy that the court grant the motion to dismiss so that the probate court could proceed to a ruling on the merits of the adoption petition. Thus, the juvenile court treated the filing of the adoption proceeding as ending any controversy regarding the dependency of the child. Because the juvenile court’s judgment “ ‘conclusively determine[d] the issue[ ]’ ” of the child’s dependency, we conclude that the judgment was final. Hutchinson, 962 So.2d at 887. Thus, we decline to dismiss the present appeal, and we proceed to address the paternal grandparents’ arguments.

II. Paternal Grandparents’ Appeal

The paternal grandparents first argue that the maternal grandparents failed to intervene in the dependency case, pursuant to Rule 24(c), Ala. R. Civ. P. We note, however, that the paternal grandparents failed to object to the maternal grandparents’ involvement in the case. Although the paternal grandparents stated in their brief in support of their opposition to the maternal grandparents’ motion to dismiss that it “is even questionable that the Maternal Grandparents are properly before this Court as parties based on their filings,” they did not request that the juvenile court strike the maternal grandparents’ motion, nor did they articulate the basis for their position.

In Anonymous v. Anonymous, 504 So.2d 289, 294 (Ala.Civ.App.1986), the appellants contended that the appellees’ motion to intervene in the juvenile proceedings did not conform to the requirements of Rule 24(c), Ala. R. Civ. P. This court noted, however, that “the record does not reflect that the [appellants] challenged the sufficiency of the motion to intervene under Rule 24 in the juvenile court.” Id. Thus, this court found the appellants’ argument to be without merit. Id. It is well established that, in order to preserve an argument for appellate review, an appellant must present to the trial court the specific grounds for that argument. See, e.g., Ex parte Coulliette, 857 So.2d 793, 794-95 (Ala.2003). Because, in the present case, the paternal grandparents failed to properly present the issue whether the maternal grandparents had properly intervened, we decline to hold the juvenile court in error on this point.

The paternal grandparents next argue that the juvenile court erred in dismissing their dependency petition based on the maternal grandparents’ having filed an adoption proceeding in the probate court. We agree.

“On appeal, a dismissal is not entitled to a presumption of correctness.... The appropriate standard of review under Rule 12(b)(6) [, Ala. R. Civ. P.,] is whether, when the allegations of the complaint are viewed most strongly in the pleader’s favor, it appears that the pleader could prove any set of circumstances that would entitle [the pleader] to relief. ... In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether [the plaintiff] may possibly prevail. ... We note that a Rule 12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief.”

Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993).

In the present case, the juvenile court found that the filing of the petition for adoption, along with the parents’ having consented to the maternal grandparents’ adoption of the child — which the juvenile court took judicial notice of — rendered the dependency case moot. We note, however, that the pendency of the adoption proceedings and the parents’ consent to the maternal grandparents’ adopting the child fall short of showing “beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief.” See Nance, 622 So.2d at 299.

The paternal grandparents alleged in their dependency petition that the mother had abused and neglected the child in the maternal grandparents’ home and that the maternal grandmother had left the child in the care of the mother and the maternal grandfather, neither of whom were allegedly capable of caring for the child. Although the mother had signed a form consenting to the maternal grandparents’ adoption of the child, there is no assurance that the circumstances that existed at the time of the filing of the petition would not resume. Furthermore, the adoption proceedings are not duplicative of the juvenile-court proceedings. As recognized in D.B. v. J.E.H., 984 So.2d 459, 462 (Ala.Civ.App.2007), proceedings in a juvenile court involve a different issue than adoption proceedings in a probate court.

Conclusion

Based on the foregoing, we reverse the judgment of the juvenile court and remand this cause for further proceedings consistent with this opinion.

The maternal grandparents’ “motion for damages for frivolous appeal” is denied.

REVERSED AND REMANDED.

PITTMAN and BRYAN, JJ., concur.

THOMAS, J., concurs specially.

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

THOMAS, Judge,

concurring specially.

I agree that the juvenile court erred by dismissing the paternal grandparents’ dependency petition. Juvenile-court dependency cases and probate-court adoption cases proceed on separate tracks, and what occurs on one track does not always mandate that proceedings on another track come to a halt. See Ex parte A.M.P., 997 So.2d 1008 (Ala.2008) (holding that a mother had no clear legal right to have an interlocutory order of adoption by foster parents set aside and to a transfer of the adoption petition to juvenile court for proceedings to terminate the mother’s parental rights). But see Ex parte A.M.P., 997 So.2d at 1025 (Stuart, J., concurring specially) (stating that, if “our child-protection system does not promote the best interest of our children, concerned parties with the best interest of the children at heart will continue to turn to the probate courts of our State in appropriate cases”).

The practical solution to the juvenile court’s dilemma in the present case might have been to place the dependency case on the administrative docket pending the outcome of the adoption proceeding.

      . In Palughi v. Dow, 659 So.2d 112 (Ala.1995), the Alabama Supreme Court dismissed an appeal as being from a nonfinal judgment when the trial court had dismissed the case "without prejudice.” 659 So.2d at 113. In that case, the defendant, Dow, had moved to dismiss the action on the ground that the plaintiff, Palughi, "was merely seeking an advisory opinion, rather than bringing a claim that was justiciable under the Declaratory Judgments Act, Ala.Code 1975, § 6-6-220 et seq.” Id. The supreme court noted that the trial court had not addressed the merits of the issues that Palughi had raised on appeal. Id.

      . Because the adoption proceedings were pending at the time the dismissal was entered, the juvenile court’s taking judicial notice of the adoption proceedings did not convert the maternal grandparents' motion to dismiss into a motion for a summary judgment. See, e.g., Webb v. City of Demopolis, 14 So.3d 887, 896 (Ala.Civ.App.2008) (Pittman, J., concurring in part and concurring in the result); and Briggs v. Woodfin, 395 So.2d 1024, 1026 (Ala.Civ.App.1981).

      . The paternal grandparents also argue that the maternal grandparents failed to present substantial evidence in support of their motion to dismiss; because we are reversing the judgment on other grounds, we decline to address that argument.


author: THOMAS, Judge.

text:
    FORT JAMES HOLDING COMPANY, INC., d/b/a Georgia Pacific v. Cheryl D. MORGAN.
    2071201.
    Court of Civil Appeals of Alabama.
    Aug. 28, 2009.

      William E. Pipkin, Jr., of Austill, Lewis & Pipkin, P.C., Mobile, for appellant.
    William L. Utsey of Utsey & Utsey, Butler; and Robert Potter of Mann, Co-wan & Potter, P.C., Birmingham, for ap-pellee.
   THOMAS, Judge.

Fort James Holding Company, Inc., d/b/a Georgia Pacific (“GP”) appeals from a judgment determining that Cheryl D. Morgan is permanently and totally disabled as a result of an on-the-job accident that occurred on December 5, 2003.

Morgan was employed by GP, and she worked on the Number 3 Ultra Flow machine at GP’s Pennington, Alabama, plant. Morgan regularly worked double shifts at GP, working 16 hours each day. Sometime in early November 2003, Morgan was lifting crates and felt a pain in her back similar to a pain in her back she had felt in 1999, when she was injured at GP while lifting a roll of wrap. Morgan did not report to GP that she hurt her back moving crates in early November 2003. In 1999, Morgan, on the advice of a friend, had sought chiropractic treatment, which resolved her back pain. Because the 1999 experience had been positive, Morgan again sought chiropractic treatment for the back pain she experienced in November 2003.

Morgan’s first appointment with the chiropractor, Dr. Angela Armstrong, was on November 24, 2003. Morgan reported to Dr. Armstrong that she had hurt her back moving crates. She indicated on an intake form that the pain had lasted two weeks, that it was aggravated by moving or lifting, that the condition was not getting worse, and that the pain was not constant but “comes and goes.” Dr. Armstrong’s records indicate that Morgan further explained in a narrative that her back pain was like her 1999 back pain in that it began as a sharp pain in the left side of her lower back, but that it was different this time because the pain did not radiate into her left leg all the time. According to Dr. Armstrong’s notes, Morgan reported that the pain radiated into her left leg only if she stood for a period. Morgan also told Dr. Armstrong that she was suffering from numbness in the balls of both of her feet; neither Morgan nor Dr. Armstrong related this symptom to Morgan’s back injury because it had begun when Morgan started wearing steel-toed boots at work and only occurred while she was wearing those boots.

Dr. Armstrong performed some neurological tests that, she testified, ruled out the possibility that Morgan had a herniated or bulging disk. Dr. Armstrong also did a physical exam and took X-rays, which led her to diagnose Morgan with a muscle spasm. Based on her diagnosis, Dr. Armstrong performed an adjustment, massage, heat therapy, and an ultrasound on Morgan.

On December 3, 2003, Morgan returned to Dr. Armstrong. Morgan was still suffering back pain, and Dr. Armstrong diagnosed her with continuing muscle spasm. Dr. Armstrong performed the same treatments on Morgan that she had performed on November 24. Morgan likewise returned to Dr. Armstrong on December 5 with the same basic complaints, and Dr. Armstrong performed the same treatments.

On December 5, 2003, Morgan reported to work at GP at 3:00 p.m. for her scheduled shift. While she was unjamming the Number 3 Ultra Flow machine, a Plexiglass door fell on Morgan, striking her across the lower back. Another employee, Gladys Vann, came to Morgan’s assistance and lifted the door so that Morgan could get up. Morgan testified that she had “blacked out” for just a few seconds and that, when she came to, she had “a pain going all the way through her body on down into my leg and my feet.” Morgan’s supervisor, Ike Bonner, arrived shortly after the accident, and he escorted Morgan to the first-aid station, where she described the accident and her injury to GP’s nurse, Mattie “Kitty” Fendley. Fendley’s notes reflect that Morgan had a “red spot” on the lower left side of her back. According to the notes Fendley took, Morgan reported that she was unsure whether the pain she felt was a result of the door hitting her or the back strain she was having treated by Dr. Armstrong. Fend-ley testified that Morgan reported that she was not hurting that bad and that she had something at home she would use to treat herself. Fendley said that she reminded Morgan that if her back pain was related to the incident, she would need to see the company doctor.

Morgan next saw Dr. Armstrong on December 8, 2003, when she reported that she was hit by the door at work but that the hit “wasn’t that hard.” Dr. Armstrong’s notes indicate that she noticed a bruise “adjacent to the L3/L4/L5 spinous processes on the left side.” Regarding her back pain, Morgan reported to Dr. Armstrong that her back was “about the same” but that she still suffered from pain on the left side. Dr. Armstrong performed Morgan’s regular treatment on December 8.

Morgan next saw Dr. Armstrong on December 10, 2003. On that date, Morgan reported that although her back was “a little better,” she was having pain down her left side when she stood for 30 minutes or so. Morgan related the pain to her earlier 1999 back pain, noting that, although nearly identical, the pain in 1999 was worse when she was sitting, while the current pain was worse when she was standing. Dr. Armstrong concluded that, because the examination on December 10 revealed that Morgan’s muscles were “so tight” on both sides of her lower back, a treatment known as intersegmental traction would be helpful to Morgan.

Morgan continued treatment with Dr. Armstrong until late December. Although she commented to Dr. Armstrong that her back pain seemed to be improving, Morgan continued to complain of pain radiating into her left hip, leg, and foot. Ultimately, Morgan told Dr. Armstrong that she did not think she was improving and that the pain in her left side was exacerbated by standing for only 10 to 15 minutes at a time.

Because her back pain had not resolved, Morgan sought treatment from the company’s doctor, Dr. Terry French. Dr. French first saw Morgan on January 4, 2004. Dr. French’s notes and deposition testimony reflect that Morgan had reported to him that she had pain in her lower back with radiation into her left leg with prolonged sitting or standing. Dr. French performed an examination of Morgan, which he reported to be “normal from a physical standpoint”; he said his examination revealed that Morgan had full range of motion but had diffuse tenderness of the paraspinal muscles, which was slightly worse on the left side. Dr. French said that the examination also revealed no neurological deficits. He prescribed an anti-inflammatory medication, a non-narcotic pain medication, and some muscle relaxers; he also sent Morgan for physical therapy.

When Morgan continued to report to the first-aid station at work complaining of pain, Dr. French ordered that she undergo an MRI to rule out any more serious injury. The results of the MRI revealed that Morgan was suffering from pressure on her L4 nerve root on the left side from a bulging disk; Dr. French said that the MRI findings were compatible with the pain that Morgan described. Morgan reported no improvement in her pain at her January 27, 2004, appointment, and Dr. French gave her a steroid shot, prescribed a steroid dose pack, and continued to prescribe muscle relaxers. Although he indicated that Morgan should return in 10 days, she never returned to his office.

Dr. French received Dr. Armstrong’s office notes from either Morgan, GP, or both. GP requested that Dr. French review the notes and determine whether, in his opinion, Morgan’s disk injury predated the December 5, 2003, accident. He opined in a letter that Morgan’s disk injury was present before the December 5 accident.

In early February 2004, Morgan received a document indicating that her claim seeking workers’ compensation benefits for her back injury, which she claimed was related to her December 5, 2003, accident, had been denied. The document indicates that the claim was denied because “current complaints are not related to our injury of 12-5-03.” The document was signed by Jo Ann Jenkins, an examiner with Sedgwick Claims Management Services, Inc. The document indicated that, in addition to being mailed to the Morgan, copies were sent to Dr. French, GP, and the State of Alabama.

Morgan continued to seek treatment for her back from her personal physician, Dr. Frank Dozier, who referred her to Dr. William S. Fleet, a neurologist. Morgan saw Dr. Fleet for the first time on March 15, 2004. In 2007, Morgan was treated by Dr. Robert White and Dr. Patricia Boltz.

As noted above, the trial court entered a judgment determining that Morgan was permanently and totally disabled as a result of the December 5, 2003, accident. GP appeals, raising several arguments. GP argues that the trial court’s judgment fails to comply with Ala.Code 1975, § 25-5-88; that the trial court erred in determining that Morgan properly notified GP of her injury, which GP contends occurred in November 2003; that Morgan’s action was filed outside the statutory limitations period because her injury occurred in November 2003 and she never filed an action based upon that injury; that Morgan waived her rights to compensation and indemnity benefits because she did not avail herself of the treatment offered by GP; that the trial court erred by admitting the May 2007 deposition testimony given by Dr. Fleet; and that the trial court’s judgment is not supported by substantial evidence.

We will first address GP’s claim that the trial court’s judgment fails to comply with § 25-5-88, which requires a trial court to make findings of fact and conclusions of law in workers’ compensation judgments. Alabama law requires only substantial compliance with § 25-5-88, and meager or omissive findings of facts or conclusions of law do not necessarily require a reversal of a workers’ compensation judgment. See Ex parte Curry, 607 So.2d 230, 232 (Ala.1992); Calvert v. Funderburg, 284 Ala. 311, 224 So.2d 664 (1969) (construing the predecessor statute to § 25-5-88). However, a trial court must make findings responsive to the issues presented at trial. Equipment Sales Corp. v. Gwin, 4 So.3d 1125, 1129-30 (Ala.Civ.App.2008).

GP argues that the trial court’s judgment fails to address the specific question whether Morgan’s use of unauthorized physicians impacted her right to receive compensation benefits or indemnity benefits. According to GP, the trial court’s failure to order it to pay for Morgan’s past medical treatment might indicate that the trial court determined that Morgan’s decision to seek treatment through unauthorized physicians precluded GP’s liability for the costs of that treatment. However, the trial court’s specific finding that GP ceased providing medical care on February 8, 2004, indicates that Morgan might have been permitted to seek care from a physician of her own choosing. See Kimberly-Clark Corp. v. Golden, 486 So.2d 435, 437 (Ala.Civ.App.1986) (setting out justifications for failing to seek prior authorization of medical treatment from an employer, including “‘where the employer has neglected or refused to provide the necessary medical care’ ” (quoting United States v. Bear Bros., Inc., 355 So.2d 1133, 1138 n. 2 (Ala.Civ.App.1978))). Thus, GP argues, the trial court’s failure to address whether Morgan is due any indemnity benefits violates § 25-5-88. Morgan’s only response is that the trial court’s judgment contains findings of facts and conclusions of law, including a detailed history of Morgan’s medical treatment and comments about the trial court’s observations of Morgan in the courtroom.

“ ‘The purpose of Ala.Code 1975, § 25-5-88, is to “ensure sufficiently detailed findings so that the appellate court can determine whether the judgment is supported by the facts.” ’ Farris v. St. Vincent’s Hosp., 624 So.2d 183, 185 (Ala.Civ.App.1993) (quoting Elbert Greeson Hosiery Mills, Inc. v. Ivey, 472 So.2d 1049, 1052 (Ala.Civ.App.1985)). ‘[T]he trial court has a duty to make a finding on each issue presented and litigated before it. In instances where the trial court fails to make a finding responsive to the issue presented, the case must be reversed.’ Thomas v. Gold Kist, Inc., 628 So.2d 864, 867 (Ala.Civ.App.1993); see also Harbin v. United States Steel Corp., 356 So.2d 179 (Ala.Civ.App.1978); and Dun & Bradstreet Corp. v. Jones, 678 So.2d 181 (Ala.Civ.App.1996). In Harbin v. United States Steel Corp., this court reversed the trial court’s judgment and remanded the case because the trial court had failed to address or to make findings regarding the issue of notice of injury to the employer, despite the issue being presented and litigated. In Harbin, this court stated:
“ ‘In the present case the question of whether Harbin notified his employer of his injury was pleaded, contested and submitted to the trial court for its determination. Despite this fact there was no finding made on this issue in the court’s original judgment. Nonetheless, Harbin maintains that the absence of a finding of notice of injury does not require reversal since a number of Alabama cases have held that when a finding of the trial court is merely meager or omissive, the reviewing court may examine the evidence in order to decide if the trial court’s judgment can be sustained. E.g., West Point Mfg. Co. v. Bennett, 263 Ala. 571, 83 So.2d 303 (1955); Alabama Textile Products Corp. v. Grantham, 263 Ala. 179, 82 So.2d 204 (1955). However, such is not the rule when, as here, there was no finding made on the issue in question.’
356 So.2d at 181-82.”

Equipment Sales Corp., 4 So.3d at 1129-30 (emphasis added).

Although the trial court’s judgment does contain detailed findings of fact regarding Morgan’s medical treatment and the testimony of the various doctors and witnesses, the judgment fails to address whether GP is required to pay for past medical treatment Morgan obtained from unauthorized physicians. One could read the judgment as indicating that the trial court intended that GP be responsible for that treatment based on certain findings by the trial court, but the judgment itself contains no reference to GP’s duty to pay for that treatment and also indicates that GP’s satisfaction of the amounts outlined in the judgment satisfies its obligation to Morgan, other than for future medical expenses or other benefits arising under Alabama’s workers’ compensation law. Because Morgan requested that GP be responsible for the medical expenses she had incurred and because GP argued that Morgan chose not to avail herself of medical care provided by GP, the trial court was presented squarely with the issue of which party was responsible for the medical expenses Morgan incurred as a result of the December 5, 2003, accident and her resulting injury. Accordingly, because the judgment fails to contain a finding of fact or a conclusion of law pertaining to that issue, we must reverse the judgment and remand the cause for the trial court to comply with § 25-5-88 and make specific findings of fact and conclusions of law regarding which party is responsible for Morgan’s past medical expenses. Based on our resolution of this issue, we preter-mit discussion of the other issues GP raises in this appeal.

REVERSED AND REMANDED WITH INSTRUCTIONS.

THOMPSON, P.J., and PITTMAN and BRYAN, JJ., concur.

MOORE, J., recuses himself.