author: MURDOCK, Justice.

text:
    Shirley Shepard CHALKLEY v. TUSCALOOSA COUNTY COMMISSION.
    1070767.
    Supreme Court of Alabama.
    Sept. 30, 2009.

      Isaac P. Espy of Espy, Nettles, Scogin & Brantley, P.C., Tuscaloosa, for appellant.
    Dennis Steverson, Tuscaloosa, for appel-lee.
   MURDOCK, Justice.

Shirley Shepard Chalkley appeals from a summary judgment entered in favor of the Tuscaloosa County Commission (“the Commission”) on her complaint seeking a declaratory judgment, injunctive relief, and damages related to Tuscaloosa County’s refusal to maintain a storm sewer that runs underneath her property. We affirm the judgment of the trial court.

I. Facts and Procedural History

The parties agree that, for the purposes of this appeal, the facts are undisputed. Chalkley is the owner of an interest in lot 98 of the Mallard Creek subdivision (“the subdivision”), located in an unincorporated area of Tuscaloosa County (“the County”). The plat of the subdivision was approved by the County engineer on September 28, 1987, and was filed for record on November 2, 1987. A note on the plat provided:

“All easements on this plat are for public utilities, sanitary sewers, storm sewers, and storm ditches, and may be used for such purposes to serve property both within and without this subdivision. No permanent structure or other obstruction shall be located within the limits of a designated easement.”

A 20-foot-wide drainage easement designated in the plat extends across lot 98 and also across lots 97, 99, 100, and 101. A concrete storm sewer was installed in the drainage easement by the developer of the subdivision. The storm sewer runs through a part of lot 98.

On February 24, 1993, the Commission adopted a resolution that provided, in pertinent part:

“1. That the County accept the streets, together with drainage structures in, and which are a part of, said streets which are located in dedicated street rights-of-way, for maintenance by the Tuscaloosa County Commission. The drainage structures described herein are those structures which are a part of or are located in the streets (curbs and gutter, catch basins, flumes and pipes) and does not include any natural waterway which drains surface water in the area.”

The parties agree that on the face of the resolution the Commission accepted for maintenance only those parts of the storm-drainage system that are located within the street rights-of-way in the subdivision.

A large sinkhole developed in Chalkley’s property, which Chalkley alleges was cased by the failure of the storm drain running underneath the property. Chalk-ley notified the County of the problem, but it declined to investigate or to repair the damaged storm drain on the basis that the County did not accept the responsibility for maintaining the parts of the storm drain located on private property.

Chalkley subsequently sued the Commission, alleging that the failure of the storm drain created a dangerous condition on her property and asking that the trial court declare that the County was responsible for repairing the storm drain and for damage to her property. The Commission filed a motion for a summary judgment on the basis of the February 24, 1993, resolution; Chalkley opposed the motion.

On February 25, 2008, the trial court entered a summary judgment in favor of the Commission and against Chalkley, concluding that Chalkley’s request that the trial court find “as a matter of ‘public policy ” that the County should be responsible for maintenance of the entire storm-drainage system was a decision that “requires fact-finding and an analysis of the costs/benefits to the public that is appropriately made, under our system, by the legislative branch.” The trial court reasoned that

“[ajdopting Ms. Chalkley’s argument in this case would mean that a court, based on its own policy considerations of what is in the best interest of the public, would require a legislative entity to acquire responsibility and liability for structures under private land. It may well be wise, expedient, and appropriate to require entire subdivision drainage systems to be under the control of the approving governmental entity, but that is a decision to be made by the County, not the judiciary. Therefore, judgment is entered in favor of [the Commission].”

II. Standard of Review

“An order granting or denying a summary judgment is reviewed de novo, applying the same standard as the trial court applied. American Gen. Life & Accident Ins. Co. v. Underwood, 886 So.2d 807, 811 (Ala.2004).... Where, as here, the facts of a case are essentially undisputed, this Court must determine whether the trial court misapplied the law to the undisputed facts, applying a de novo standard of review. Carter v. City of Haleyville, 669 So.2d 812, 815 (Ala.1995).”

Continental Nat’l Indem. Co. v. Fields, 926 So.2d 1033, 1034-35 (Ala.2005).

III. Analysis

Chalkley contends that the storm-drainage system was installed when the subdivision was built and that it should be viewed as a single, continuous structure for public benefit. She argues that because the storm-drainage system is one structure, the Commission, as a matter of public policy, should not be allowed to accept responsibility for parts of the system rather than the system as a whole. Chalkley contends that the law and existing precedent require this result.

Specifically, Chalkley first argues that the County is the proprietor of a “dominant tenement” in relation to the easement that runs through her property and that, therefore, the County has the duty to maintain and to repair the drainage system built on the easement. In support of this proposition, Chalkley cites Mountain Brook Estates, Inc. v. Solomon, 247 Ala. 157, 23 So.2d 1 (1945), and, specifically, a portion of that opinion in which the Court stated:

“The duty to maintain and repair, if it exists at all, arises out of proprietorship of the dominant estate, and its appurtenances, and where the easement exists for the sole benefit, use and enjoyment by the proprietor of the dominant estate, the proprietor of such estate ordinarily is hable for the cost of maintenance and repair.”

247 Ala. at 162, 23 So.2d at 4.

In Solomon, Mountain Brook Estates, Inc. (“the developer”), at one time owned all the property upon which the Mountain Brook Estates subdivision was built. The developer divided the property into lots for the purpose of building residential estates and selling them for a profit. Pursuant to this goal, the developer built a drainage ditch across the entire property and reserved an easement on each lot on which the drainage ditch was located. The developer then sold the lots, eventually selling one to David Solomon 13 years after the drainage ditch had been installed. When water from the drainage ditch backed up on Solomon’s property, he filed an action for injunctive relief against the developer, contending that the drainage ditch was inadequate for draining the amount of water the area received and asking the trial court to order the developer to repair the drainage ditch.

This Court, in the course of explaining the law of easements, stated the above-quoted rule concerning the responsibility of the dominant estate of an easement. The Court went on to explain, however:

“It is very clear from the facts alleged in the bill that the easement and drainage ditch did not exist solely for the benefit of the dominant estates, but it was created and established as well to preserve the property which the complainant purchased, and upon which he erected his home. But for said ditch, the property purchased and owned by [Solomon] would have suffered the ravages of the drainage system [from higher elevation lots]. When [Mountain Brook Estates, Inc.,] sold and conveyed all of said dominant estates in the sector, it ceased to be the proprietor of said dominant estates, and the responsibility of repair and maintenance, if it ever existed, passed to the grantees or ceased to exist.”

247 Ala. at 162, 23 So.2d at 4-5.

Thus, Solomon itself explains why Chalkley’s argument that the County holds a dominant estate that would make it responsible for maintaining and repairing the storm-drainage system fails. First, it is debatable that a “dominant estate” exists in the situation presented here. Further, there is no doubt that the easement does not exist “solely” for the benefit of the County; it clearly benefits Chalkley and every other owner of a lot in the subdivision. Consequently, the duty to maintain and repair the storm-drainage system does not fall upon the County merely because the County also benefits from the easement.

Chalkley also contends that this Court’s precedent supports the idea that the County cannot accept only in part a dedication of property for public use and that, if the County accepted part of the property, it must be said to have constructively accepted the responsibility for the whole of the property. In so arguing, Chalkley misreads our cases.

Chalkley is correct that the approval of the subdivision plat by the County engineer, along with the notation in the plat stating that “[a]ll easements on this plat are for public utilities, sanitary sewers, and storm ditches, and may be used for such purposes to serve property both within and without the subdivision,” constituted a dedication of property for public use. See, e.g., Montabano v. City of Mountain Brook, 653 So.2d 947, 949 (Ala.1995) (noting that “[t]he recording of a plat or map ... constitutes a valid dedication to the public of all public places designated in the plat or map”). “A ‘dedication’ is a donation or appropriation of property to the public use by the owner.” City of Fairfield v. Jemison, 283 Ala. 462, 464, 218 So.2d 273, 275 (1969).

It also is true that a grantor is limited in the types of restrictions that can be placed on a dedication of property for public use.

“ ‘An owner may grant whatever estate he sees fít, and may annex conditions and limitations to his grant at his pleasure, provided that such limitations and conditions are not inconsistent with the dedication and will not defeat the operation of the grant. A condition or limitation which would render the dedication ineffectual cannot be annexed; thus a man cannot reserve possession to himself, nor reserve a right to do anything in the way which will destroy its character as a public way.’ ”

Greil v. Stollenwerck, 201 Ala. 303, 306, 78 So. 79, 82 (1918) (quoting 1 Elliott, Roads and Streets § 163).

The acceptance of the dedication is equally as important as the dedication, however. “ ‘ “The acceptance of a dedication, or what may be more accurately called an offer of dedication, has many of the incidents of the acceptance of a contract and of a deed, and is what makes the dedication complete.” ’ ” Vestavia Hills Bd. of Educ. v. Utz, 530 So.2d 1378, 1383 (Ala.1988) (quoting the trial court’s order, quoting in turn 23 Am.Jur.2d Dedication § 41 (1983)). Similar to a contract, “ ‘the language set forth in the deed [or plat] is considered merely an offer of dedication by the grantors until such time as the dedication has been accepted by the grantee.’ ” Id.

In Ivey v. City of Birmingham, 190 Ala. 196, 204, 67 So. 506, 509 (1914), this Court considered the issue of the public’s responsibility for the maintenance of a dedicated street. The Court in that case held:

“The owner of the property through which this street was originally laid off could not impose his dedication of the street upon the public by platting the territory and disposing of lots according to the plat. He thereby made it a way, imvocable as to ‘purchasers; but to devolve upon the public the duty of maintaining the way as a public road or street it was necessary that there should be an acceptance by the public of the dedication.”

(Emphasis added.) The principle recognized in Ivey, which has been recognized repeatedly in other jurisdictions, is that because acceptance of a dedication constitutes the assumption of responsibility for the property in question, a grantor cannot automatically impose such responsibility on the public through his or her dedication of the property. See, e.g., Brown v. Moore, 255 Va. 523, 529-30, 500 S.E.2d 797, 800 (1998) (explaining that “[b]ecause a dedication imposes the burden of maintenance and potential tort liability on the public, a dedication is not completed until the public or competent public authority manifests an intent to accept the offer”).

Citing Ivey, this Court stated in Tuxedo Homes, Inc. v. Green, 258 Ala. 494, 497, 63 So.2d 812, 814, (1953):

“It is thoroughly well settled in this State and elsewhere that an owner of land cannot impose his dedication of a street upon the public by platting the tract and disposing of lots according to the plat; and that in order to have a dedication there must be an acceptance of it by the city if the property is located in a city. Ivey v. City of Birmingham, 190 Ala. 196, 67 So. 506.”

In a case involving land located in Baldwin County, the Court in Baldwin County Commission v. Jones, 344 So.2d 1200, 1204 (Ala.1977), citing Tuxedo Homes, stated that approval of a recorded subdivision plat “does not amount to an acceptance of the roads as public roads.”

In Blair v. Fullmer, 583 So.2d 1307, 1310 n. 2 (Ala.1991), this Court stated:

“The mere fact of dedication does not necessarily impose upon the county a duty to maintain the road. Cf. Lybrand v. Town of Pell City, 260 Ala. 534, 538, 71 So.2d 797, 801 (1954), in which it was noted that a dedication of a street in a city ‘does not impose any duty upon the city until it has accepted the dedication.’ ”

Relying on both Ivey and Tuxedo Homes, the Blair Court noted that in the former “the owner, by platting the street and recording the plat, ‘thereby made it a way, irrevocable as to purchasers; but to devolve upon the public the duty of maintaining the way as a public road or street it was necessary that there should be an acceptance by the public of the dedication.’ [Ivey,] 190 Ala. at 204, 67 So. at 509.” Blair, 583 So.2d at 1311 (noting that principle established in Ivey can thus be traced through Tuxedo Homes and Cottage Hill Land Corp. v. City of Mobile, 443 So.2d 1201 (Ala.1983), to CRW, Inc. v. Twin Lakes Property Owners Association, Inc., 521 So.2d 939 (Ala.1988)). The Blair Court concluded its analysis as follows:

‘Whatever the effect of Cottage Hill and CRW on the other cases and the statutes on point, those two cases clearly do not deprive a purchaser of a lot in a subdivision of the right to the roads shown in the subdivision plat. It is certainly the case that a city or county must accept such a dedication (perhaps by the general public’s use of the roads) before there arises a duty on the governing body to maintain the roads, and it may be that those two cases require an acceptance by a public body before the general public can be given the right to use the roads.”

583 So.2d at 1311 (emphasis added).

In this case, the developer of the subdivision dedicated all the easements on the subdivision property — including the easements for the storm-drainage system — for public use. As Chalkley concedes, the Commission accepted only those parts of the storm-drainage system that existed within the street rights-of-way. Chalkley cites Greil for the proposition that the County could not accept only part of the dedication. Greil states, in pertinent part:

“‘[T]he dedication must, as the law phrase runs, be accepted secundum for-mam doni [according to the form of the gift or grant]. It is stated in general terms in some of the cases that there may be a partial acceptance, but it seems to us that this doctrine must be taken with some qualification. If the donor should consent that the public might accept part and reject part, then, doubtless, the acceptance, if for the public generally, would be valid; but if he should insist on a full acceptance, we think that on principle he would be sustained by the courts since to hold otherwise would be in effect to compel him to part with his property on terms different from those prescribed in his grant.’ ”

201 Ala. at 306, 78 So. at 82 (quoting 1 Elliott, Roads and Streets § 163).

The above-quoted passage from Greil does not help Chalkley, however, because there is no restriction in the developer’s dedication that the County had to accept the entire dedication in order to take control of the property. Indeed, on the facts before us, the grantor did not object to the County’s partial acceptance of the dedicated property. Thus, Greil does not indicate that the County was prohibited from accepting the dedication in the manner it chose.

In fact, the law on the subject generally is that “[a]n offer of dedication need not be accepted in its entirety; the property offered for dedication may be accepted in part and the remainder rejected.” 23 Am.Jur.2d Dedication § 43 (2002) (footnotes omitted). This is so because “[t]he public is not compelled to assume the burdens imposed by accepting every part of the offered dedication.” Id. Several other jurisdictions agree with this conclusion. See, e.g., Corbin v. Cherokee Realty Co., 229 S.C. 16, 25, 91 S.E.2d 542, 546 (1956) (“[The City of Florence] was not required to accept the offer of dedication in its entirety. Any street shown on said plat could be accepted in part and the remainder rejected. The public could not be compelled to assume the burdens imposed by accepting every part of the offered dedication.” (citations omitted)); Home Real Estate Loan & Ins. Co. v. Town of Carolina Beach, 216 N.C. 778, 788, 7 S.E.2d 13, 20 (1940) (explaining that “the board of aldermen, acting under the charter and pertinent laws, has the discretionary power as to the extent to which the street as dedicated to public use will be accepted, and may thereby limit the responsibility of the town for maintenance”); and Moore v. City of Chicago, 261 Ill. 56, 59, 103 N.E. 583, 584 (1913) (“The law is well settled that, when a person plats property into a subdivision and maps out streets thereon, the authorities may accept them in whole or in part. The public is not compelled to assume the burdens imposed by accepting every part of an offered dedication. An acceptance of a part is not an acceptance of the whole....”).

Chalkley counters that “public policy” and common sense require the County assume responsibility for the whole storm-drainage system because that is the only way it can effectively manage and operate the system. The entire system is necessary for the storm drainage to operate properly, Chalkley argues, so the County cannot pick and choose which parts of the system to accept. Chalkley contends that Beachcroft Properties, LLP v. City of Alabaster, 949 So.2d 899 (Ala.2006), confirms that public policy requires this result.

Beachcroft concerned a dispute between the owners of two contiguous platted subdivisions in the City of Alabaster. Beach-croft Properties, LLP (“Beachcroft”), owned the Forest Highlands subdivision, and BW & MMC, LLC (“BW”), owned the Lake Forest subdivision. A sewer system was installed in Lake Forest in accordance with the preliminary plat approved by the City of Alabaster’s planning and zoning board (“the board”). The sewer system included a sewer line capable of serving both Lake Forest and Forest Highlands. When Beachcroft presented its preliminary plat for Forest Highlands to the board, it requested permission to connect sewer lines in its subdivision to the sewer line that was part of the sewer-system installation in Lake Forest. BW informed Beachcroft and the board that it would not allow Forest Highlands to connect to the Lake Forest sewer system, and the board stated that it did not believe it had the authority to force BW to let Forest Highlands connect to Lake Forest’s sewer system. When BW presented its final plat to the board, it dedicated the streets of the subdivision to the public, but it purported to specifically exempt from public dedication the sewer system running underneath those streets.

Beachcroft filed a complaint against BW and Alabaster seeking a judgment declaring that the streets of Lake Forest and the sewer system that ran underneath them had been dedicated to the public, and, therefore, that BW could not prevent Forest Highlands from connecting the sewer lines in to the sewer system. It also sought an order enjoining BW from preventing Beachcroft from connecting the sewer lines in Forest Highlands to the sewer system. Subsequently, the board accepted the final plat for Lake Forest and the preliminary plat for Forest Highlands subject to the judicial resolution of the issue of control of the sewer system. The trial court entered a summary judgment in favor of BW and Alabaster, concluding that BW “ ‘lawfully withheld from dedicating the sanitary sewer’” and that “Alabaster properly approved a reservation to allow [BW’s] withholding from public dedication a portion of the subdivision.... ” Beachcroft Props., LLP v. City of Alabaster, 901 So.2d 703, 706 (Ala.2004) (emphasis omitted).

In the initial appeal, this Court concluded that the trial court, in finding that Alabaster had approved the reservation of the sewer system by BW, had failed to settle the dispositive issue of “whether a real-estate developer, in platting a subdivision for approval by a municipal planning board, may impose on the municipality an express reservation prohibiting the municipality from asserting control over the sewer lines beneath the platted streets or from effecting a sanitary-sewer connection between two adjoining subdivisions.” 901 So.2d at 709-10. Accordingly, we remanded the case to the trial court for resolution of that issue. On remand, the trial court again entered a summary judgment in favor of BW and Alabaster.

In the second appeal, Alabaster filed a brief agreeing with Beachcroft that the sewer system, like the streets of Lake Forest, is public property because it is connected to the city sewer system. See Beachcroft Props., LLP, 949 So.2d at 902 (“Beachcroft II”). It also agreed with Beachcroft’s contention that “ ‘[a] developer ... cannot ... determine what members of the public shall have access to public improvements to the exclusion of a municipality.’ ” 949 So.2d at 901-02. BW, on the other hand, contended that it owned the sewer lines and the pump station accompanying them and would own them until it chose to deed them to Alabaster.

This Court reversed the judgment of the trial court, noting that

“it is undisputed that the sewage from Lake Forest flows to facilities owned and operated by the City, and it is un-controverted that BW does not purport to own or treat the sewage discharged by Lake Forest. In other words, when the Lake Forest sewer system was connected to the City’s system, the City acquired the effluent, and the concomitant duty to dispose properly of the sewage flowing from Lake Forest to other points within the City’s system.
“It must be, therefore, that the pipes under Lake Forest and the pump station on lot 599 have become an integral part of the public sewer system with the right of control consequently vested in the City. Were it otherwise, the developer of one subdivision could hold another development hostage on a whim, thereby improperly interfering with the orderly development of a municipality.”

949 So.2d at 905-06 (footnote and emphasis omitted).

Chalkley contends that Beachcroft II stands for the proposition that if the sewer system of a subdivision is connected to the public sewer system, then the developer has no right to reserve a portion of the sewer system. According to Chalkley, “[a]ll of the system must be dedicated to the government entity so that the government entity can properly manage and control the system.” Chalkle/s brief, p. 21. Chalkley then insists that the converse must also be true, i.e., “that the government entity cannot pick and choose which portions of the system to accept, when all of the system is absolutely necessary for its proper operation.” Id.

This argument fails to recognize the distinction between dedication and acceptance. Beachcroft II simply reinforces the rule that “[a] condition or limitation which would render the dedication ineffectual cannot be annexed.... Nor can there be a valid dedication to a part only of the public, since this would be repugnant to the purpose of the dedication....” Greil, 201 Ala. at 306, 78 So. at 82 (quoting 1 Elliott, Roads & Streets § 163). In other words, the system in question could not be partly dedicated to the public because otherwise the public system is at the whim of private control.

Whether the public must accept the entirety of a dedication of property to public use is another matter. Chalkley is essentially arguing that the public can be forced by a private donor’s dedication to accept responsibility for property the government entity does not wish to assume. As the trial court here correctly observed, in Beachcroft II the government entity, Alabaster, claimed responsibility and control over the sewer system. In this case, however, the County specifically disclaimed responsibility for those portions of the storm-drainage system that run underneath private property in the subdivision. The developer in this case did not restrict its dedication and therefore did not interfere with the County’s control over development of the subdivision. Instead, the County exercised its control by electing to accept only part of the developer’s dedication. Nothing in our law prevents such a partial acceptance, and we will not rewrite the law to impose an obligation upon the County that it does not wish to accept. See Ivey, 190 Ala. at 204-05, 67 So. at 509.

Based on the foregoing, the judgment of the trial court against Chalkley and in favor of the Commission is affirmed.

AFFIRMED.

COBB, C.J., and LYONS, WOODALL, STUART, SMITH, BOLIN, and SHAW, JJ., concur.

PARKER, J., concurs in the result.

      . Chalkley does not contend that the County need not accept the dedication of the easement in question in order to have responsibility for its maintenance.

      . The land in question in Ivey was the subject of a dedication that occurred by means of the public recording of a plat before the annexation of the property into the City of Birmingham. Although not cited in the opinion, the statute applicable to such dedication read as follows:
      "The acknowledgment and recording of such plot shall be held in law and equity to be a conveyance, in fee simple, of such portion of the premises plotted as one marked or noted on such plot as donated or granted to the public, and the premises intended for any street, alleyway, common or other public use, as shown in said plot shall be held in that trust for the uses and purposes intended or set forth in said plot."
      Act No. 52, § 3, p. 93, Ala. Acts 1886-87.

      . In Harper v. Coats, 988 So.2d 501, 508 (Ala.2008), this Court considered a dispute between individuals, who were adjacent landowners; Harper did not involve the obligation of either a municipal corporation or a county to take responsibility for the maintenance of dedicated property without first having accepted the dedication. It was in this context that the Harper Court held that “[rjoads in a subdivision located outside the city limits or police jurisdiction of a municipality are deemed dedicated to the public by way of proper recordation of a plat, with no requirement of acceptance by any county governing authority.” Harper did not discuss or purport to overrule Tuxedo Homes. In Tuxedo Homes, the Court concluded that "the mere approval of the plat or map” by a city engineer "is not an acceptance of the proffered dedication and imposes no burden on the city” because such approval "does not invoke a discretionary act of the city commission.” 258 Ala. at 499, 63 So.2d at 816. The principle underlying the holding in Tuxedo Homes was that the ministerial function of a city or county engineer in approving a plat cannot "bind the city [or county] to maintain such streets” or other portions of the plat dedicated to the public. 258 Ala. at 498, 63 So.2d at 814.

      . Chalkley does not argue that the Commission accepted the entire storm-drainage system by way of a public use of that system for a certain period or by other act by which acceptance might be deemed to have occurred implicitly or by estoppel.


source: Caselaw Access Project

author: PITTMAN, Judge. MOORE, Judge,

license: Public Domain

text:
    Steven M. STANFORD v. Kelly G. STANFORD.
    2070605.
    Court of Civil Appeals of Alabama.
    March 20, 2009.
    Certiorari Denied Oct. 9, 2009 Alabama Supreme Court 1080794.

      W. Gregory Hughes, Mobile, for appellant.
   PITTMAN, Judge.

Steven M. Stanford (“the former husband”) appeals from a judgment modifying a judgment divorcing him from Kelly G. Stanford (“the former wife”).

The former husband and the former wife were divorced by a judgment entered on April 17, 2003. In that judgment, among other things, the former wife was awarded physical custody of the parties’ child, the former husband was ordered to pay child support in the amount of $607 per month, and the former husband was ordered to pay the former wife rehabilitative periodic alimony in the amount of $750 per month beginning in April 2003 and ending in April 2006. The divorce judgment also contained the following language: “Thereafter, the Court reserves the right to award periodic alimony.”

In June 2006, the former wife filed a motion to modify the divorce judgment, in which she alleged that a material change in circumstances had occurred; she sought an increase in child support and an award of periodic alimony to assist her in completing her undergraduate college education.

The trial court conducted an ore tenus proceeding on February 19, 2008. During that proceeding, the former wife testified that following the divorce she had attempted to find meaningful employment but that, possessing only a high-school diploma and no professional work experience at that time, she had been forced to accept a minimum-wage job at a discount store. She stated that she had continued to apply for numerous positions until she was hired by the Mobile County school system as a substitute teacher. The former wife testified that during 2003 and 2004 she had worked at both jobs — at various schools during the day and at the store at night and on the weekends — until she was able to afford to go back to college in the summer of 2004. The former wife testified that she had begun attending classes to earn 60 hours of college credit so that she could qualify to be hired by the school system as a teacher’s aide. In the fall of 2006, having taken enough classes to reach 60 hours, the former wife was hired by the school system as a teacher’s aide, earning $11.23 per hour; unlike her substitute-teaching position, the new job included medical and retirement benefits. The former wife stated that, by the time of trial, she was working full-time with special-needs children in the Mobile County school system and earning $13.06 an hour.

The former wife testified that her monthly expenses averaged $1,900 per month. She stated that her monthly net salary from the school system was $1,096 and that that salary, even when combined with the monthly child-support payment of $607, did not suffice to pay all of her monthly bills. The former wife noted that since the rehabilitative alimony had ended in April 2006 she had been able to meet her monthly obligations only by using money from her student loans. The former wife asked the trial court to award her periodic alimony to allow her to complete her education without losing the house where she and the parties’ minor child had been living since the divorce. She stated that she expected to graduate in either the spring or the summer of 2010 with an undergraduate degree in education.

The former husband testified that he believed that the former wife should have been able to get a “decent” job during the three years that she received rehabilitative alimony. He insisted that he did not want to pay any more alimony to the former wife, although he stated that he was willing to continue to pay the $607 in monthly child support. The former husband also testified that he had made approximately $64,000 a year at the time of the divorce and that he had earned $61,800 the year immediately preceding the trial because his company had been purchased and salaries there had been reduced. The former husband requested that the trial court deny the former wife’s request for additional child support and alimony.

On February 21, 2008, the trial court entered a judgment modifying the divorce judgment. The trial court stated, in part:

“1. With respect to the remaining issue left for the Court, the Court ... does order the [former husband] to pay the [former wife] $300 per month as temporary periodic alimony until May 2010.
2. The Court does note that it is an extreme remedy for the Court to enlarge the temporary periodic alimony; however, in this case the Court does find that [the former wife] is working and going to school and is trying very hard to better herself which should benefit their child in the long run. The [former husband]’s assistance will help the [former wife] not have to go into as much debt to improve her life situation. This periodic alimony will be required so long as the [former wife] takes at least six credit hours per semester and shall begin February 2008 and end May 2010.”

The former husband filed this timely appeal and asserts that the trial court acted outside its discretion in ordering him to pay periodic alimony after the specified three years for paying rehabilitative alimony had ended. The former husband relies primarily on Banks v. Banks, 336 So.2d 1365 (Ala.Civ.App.1976), and its progeny to support his contention that the former wife’s failure to request a modification of her rehabilitative-alimony award before that award terminated is a permanent bar to an award of alimony in the future. We conclude that the former husband misapprehends the applicable rule of law.

Alabama law is well settled that when a trial court fails either to grant or to reserve the issue of periodic alimony in a divorce judgment, its power to grant periodic alimony in the future is lost. See Tibbetts v. Tibbetts, 762 So.2d 856, 858 (Ala.Civ.App.1999). In addition, “ ‘[i]f a grant of periodic alimony expires according to its term or is terminated by an order of modification, without reservation by the court, it is not subject to revival or reinstatement.’ ” Tibbetts, 762 So.2d at 858 (quoting Gargis v. Gargis, 367 So.2d 476, 478 (Ala.Civ.App.1978)) (emphasis added). The cases cited by the former husband all concern judgments that contained awards of rehabilitative alimony and contained no language reserving the issue of future periodic alimony.

Recently, this court reversed a divorce judgment awarding rehabilitative alimony but failing to reserve the issue of future periodic alimony; we stated, in part:

“ ‘We have previously held that when the court awards rehabilitative alimony based on the earning ability of the parties, their probable future prospects, and the length of the marriage, it is reversible error for the court not to reserve the right to award periodic alimony in the future. See Robinson v. Robinson, 623 So.2d 300 (Ala.Civ.App.1993); Sammons v. Sammons, 598 So.2d 941 (Ala.Civ.App.1992).’ ”

Giardina v. Giardina, 987 So.2d 606, 620 (Ala.Civ.App.2008) (quoting Fowler v. Fowler, 773 So.2d 491, 495 (Ala.Civ.App.2000), overruled on other grounds by J.L. v. A.Y., 844 So.2d 1221 (Ala.Civ.App.2002)); see also McLendon v. McLendon, 420 So.2d 266, 268 (Ala.Civ.App.1982) (when divorce judgment reserved right to award periodic alimony, trial court retained jurisdiction to make such award at later date). Although the parties’ divorce judgment contains language establishing a rehabilitative-alimony obligation for only three years, it also expressly includes a reservation of the issue of periodic alimony. Because that judgment contained a reservation of the issue, we conclude that the trial court could properly entertain the former wife’s modification request. ■

The general rule “is that future periodic alimony awards may be modified upon showing a change in circumstances.” Gargis, 367 So.2d at 478; see also Dutton v. Dutton, 490 So.2d 1249, 1251 (Ala.Civ.App.1986). At trial, the former wife testified that after she had stopped receiving the rehabilitative-alimony award she had been unable to meet her monthly financial obligations. She asked the trial court to award her enough monthly periodic alimony to allow her to complete her undergraduate degree and become self-sufficient. We cannot say that the trial court erred in granting the former wife’s request.

The former husband also asserts that the trial court erred in entering the modification judgment because, he says, the trial court’s use of the word “temporary” intimates that the award of $300 in monthly periodic alimony is merely an “extension” of the former rehabilitative-alimony award that had already terminated in April 2006. We do not agree with the former husband that the trial court intended to improperly “extend” the previous award. During the trial in this matter, the trial court and the former husband’s attorney had a lengthy discussion concerning the applicability of Banks to this case. The trial court noted on the record that the reservation of the issue of future periodic alimony in the divorce judgment not only gave the court jurisdiction over the issue but also empowered the court to consider a change in circumstances and to award whatever amount might be shown to be appropriate based on the evidence adduced in a modification hearing. See Crenshaw v. Crenshaw, 816 So.2d 1046, 1047-1048 (Ala.Civ.App.2001) (noting that a judgment reserving periodic alimony is actually an immediate denial of alimony at time judgment is entered and stating that courts may prop-eiiy reserve issue of alimony if facts indicate that future circumstances may entitle a party to such an award).

Alabama law is well settled that the modification of periodic alimony is a matter within the discretion of the trial court, and on appeal a trial court’s judgment on that matter is presumed correct. Posey v. Posey, 634 So.2d 571, 572 (Ala.Civ.App.1994). A trial court may modify an award of periodic alimony upon proof that a material change of circumstances has occurred since the last award was made. Kiefer v. Kiefer, 671 So.2d 710, 711 (Ala.Civ.App.1995). “The trial court may consider several factors, including the earning capacity of each spouse, the recipient’s needs and the payor’s ability to meet those needs, and the estate of each spouse.” Id.

At the time the parties were divorced, the former wife, unlike the former husband, had not been in the workforce and had no record of earnings, a fact that no doubt colored the trial court’s decision to grant three years of rehabilitative alimony and to reserve judgment on the issue of periodic alimony. Although the former husband’s income is marginally less than it was at the time of the divorce, it still exceeds $60,000 per year. In contrast, although the former wife now has a record of earnings, those earnings have yet to exceed $20,000 per year. Moreover, the former wife testified that she had incurred a debt of $30,000 in student loans and had been unable to meet her monthly financial obligations since the termination of the rehabilitative-alimony payments.

Although the former husband contends that the former wife has actually improved her financial position since the parties divorced, at trial the former wife itemized her monthly income and expenses and offered evidence tending to show a monthly shortfall of approximately $200. Based upon the record evidence, we conclude that the trial court could properly determine that the former wife had proven a change in circumstances entitling her to an award of monthly periodic alimony, irrespective of the court’s use of the word “temporary” in the judgment. See McLendon and Kiefer, supra; see also Wagner v. Wagner, 989 So.2d 572, 583 (Ala.Civ.App.2008). The trial court’s judgment is due to be affirmed.

AFFIRMED.

THOMPSON, P.J., and THOMAS, J., concur.

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

MOORE, J., dissents, with writing.

MOORE, Judge,

dissenting.

I respectfully dissent from the main opinion’s affirmance of the trial court’s judgment.

The original divorce judgment, which was entered on April 17, 2003, provided, in pertinent part:

“14. [The former husband] shall pay the [former wife] rehabilitative periodic alimony of $750.00 per month beginning April, 2003 for a period of 3 years. Thereafter, the Court reserves the right to award periodic alimony....
“15. ... [The former wife] is encouraged to find employment. In the event, the [former wife] gets employment and earns under $30,000 per year, the rehabilitative alimony provision will not be reduced due to her employment wages under $30,000 per year. ...”

In the former wife’s motion to modify the 2003 divorce judgment, she alleged that she was currently enrolled as a sophomore at the University of South Alabama, that she was pursuing a teaching degree while working as a full-time substitute teacher in the Mobile County Public School System, and that she would need approximately three more years to complete her degree through night classes. The former wife stated that she “is in need of continued periodic alimony in order to complete her schooling to become gainfully employed.” Therefore, she requested that the trial court enter an order modifying the alimony provisions of the 2003 divorce judgment to provide that her “alimony be continued until such time as she can complete her studies and receive her diploma

At the outset of the trial of this cause, the attorney for the former wife indicated that the parties had resolved all the issues raised in the former wife’s motion except “the remaining issue ... on the extension of rehabilitative alimony.” After reading paragraphs 14 and 15 of the 2003 divorce judgment, the former wife’s counsel then stated that “[t]he issue I think today for the Court to decide is does the $750 a month continue because we would proffer that she[, the former wife,] still makes less than $30,000.” The former husband’s counsel responded that, under Banks v. Banks, 336 So.2d 1365, 1367 (Ala.Civ.App.1976), a rehabilitative-alimony provision that terminates on a specified date can be modified only if the movant files a petition to modify that provision before its termination date and that, because the former wife had failed to file her modification petition before April 17, 2006, the trial court had no jurisdiction to extend her rehabilitative alimony. After considering those arguments, the trial court noted that, unlike the judgment at issue in Banks, the 2003 divorce judgment specifically reserved jurisdiction to award periodic alimony, and it stated: “I can award periodic alimony in the future based on that reservation alone .... ” The trial court then took testimony regarding the issue of “why should I give additional periodic alimony?”

That testimony established that, at the time of the entry of the 2003 judgment, the former wife had attained less than a year of college credits and was not employed, although she had learned secretarial skills and had previously worked at Spring Hill College. The former wife became employed in May 2003 as a retail cashier earning $6 per hour and working 25 to 35 hours per week. Thereafter, the former wife also began working part-time as a substitute teacher, earning $40 per day without fringe benefits, while also working her cashier job at nights and on weekends. In the summer of 2004, the former wife returned to college, first enrolling at Bishop State Community College, then at Spring Hill College, and, finally, in the fall of 2005, at the University of South Alabama. By the fall of 2006, the former wife had earned the 60 hours of college credit required to work as a teacher’s aide.

After becoming a teacher’s aide, the former wife decided to become a teacher, which requires an undergraduate degree in education. The former wife continued to attend the University of South Alabama at night in its adult-education program, earning six hours of college credit per semester while working toward that degree. In addition, the former wife took extra courses in the summer when she was off work. The former wife anticipated that, at a rate of six credit hours per semester, she would graduate in the spring or the summer of 2010. At the time of the hearing, the former wife was working as a teacher’s aide from 7:30 a.m. to 3:30 p.m. daily and was attending classes three nights a week from 6:00 p.m. to 8:30 p.m.

The former wife testified that, since the 2003 divorce, her living expenses totaled approximately $1,900 per month. That figure included $566 per month for a mortgage on a house she had purchased for $93,000, having paid 5% down from money she had received from cashing in an individual retirement account. That figure did not include her tuition costs of $1,500 per semester or her book costs and other fees. The former wife testified that she paid her tuition with grants that she did not have to repay and student loans that she did have to repay. The former wife estimated that she owed close to $30,000 in student loans. The former wife stated that she had borrowed $10,000 for the 2007-2008 school term. After paying her tuition, the former wife had placed the remainder of the loan funds in “reserve.” At the time of the hearing, she had $4,000 in her savings account and $3,000 to $4,000 in her checking account. The former wife testified that she had used her financial aid to cover the living expenses she could not cover with her monthly wages of $1,096 and her monthly child support of $607, which, when combined, total $1,703 per month. The former wife had been receiving $750 per month in alimony, but that had ceased in April 2006.

The former wife testified as follows:

“Q. [Former wife’s counsel]: [W]hat are you asking the Court to do in regard to the reservation of alimony that is provided for in paragraph 14 and 15 in the judgment of divorce?
“A: I am just asking this Court, Judge, that I don’t want to live off this man forever, I just want enough to cover until I get out of school which is estimated in spring or summer of 2010. And I guess it has taken me longer to get through school because I am a mother and maintaining my house and I have had some health problems, too, but I am doing the best that I can right now for my daughter and working full-time and going to school at night. And like I said, just an extension long enough until I get out of school.”

The former husband testified that, since the 2003 divorce, he had been employed at the same place earning about the same wages. He testified that, out of those wages, he had paid the former wife $607 per month in child support and $750 per month in alimony. The former husband objected to paying further alimony because, he said, he believed he had complied fully with the 2003 judgment; he also testified that part of the reason the parties had divorced was because the former wife had refused to return to work and help pay their bills. The former husband testified that, although he had never tried to work, raise a child, and go to school simultaneously, he believed three years was sufficient time for the former wife to complete her education and obtain a job.

Following the hearing, the trial court entered a judgment on February, 21, 2008, stating, in pertinent part:

“1. With respect to the remaining issue left for the Court, the Court ... does order the [former husband] to pay the [former wife] $300 per month as temporary periodic alimony until May 2010.
“2. The Court does note that it is an extreme remedy for the Court to enlarge the temporary periodic alimony; however, in this case the Court does find that [the former wife] is working and going to school and is trying very hard to better herself which should benefit their child in the long run. The [former husband]’s assistance will help the [former wife] not have to go into as much debt to improve her life situation. This periodic alimony will be required so long as the [former wife] takes at least six credit hours per semester and shall begin February 2008 and end May 2010.”

(Emphasis added.)

On appeal, the former husband argues that the trial court exceeded its discretion in modifying the rehabilitative-alimony award because the former wife did not file her motion to modify until after the time set for the termination of that award. I agree.

In this case, the trial court stated in the February 21, 2008, judgment that it was awarding “temporary periodic alimony.” Periodic alimony is money used to support a former dependent spouse and to enable that spouse, to the extent possible, to maintain the status that the parties had enjoyed during the marriage, until the spouse is self-supporting or maintaining a status similar to the one enjoyed during the marriage. O’Neal v. O’Neal, 678 So.2d 161, 165 (Ala.Civ.App.1996). Rehabilitative alimony is that “sub-class of periodic alimony” designed to allow a spouse “time to re-establish a self-supporting status.” Jeffcoat v. Jeffcoat, 628 So.2d 741, 743 (Ala.Civ.App.1993), overruled on other grounds, Crenshaw v. Crenshaw, 816 So.2d 1046, 1048 (Ala.Civ.App.2001).

“Rehabilitative alimony is a way of supporting an economically dependent spouse through a limited period of reeducation or retraining following divorce, thereby creating an incentive and opportunity for that spouse to become self-supporting.”

24A Am.Jur.2d Divorce and Separation § 759 (2008). “In short, the purpose of rehabilitative alimony is to restore to a spouse who, because of the marriage, was either prevented from becoming or chose not to become self-supporting, those skills which would enable her or him to support herself or himself.” Frye v. Frye, 385 So.2d 1383, 1389 (Fla.Dist.Ct.App.1980).

In the February 21, 2008, judgment, the trial court obviously awarded the former wife that form of periodic alimony known as “rehabilitative alimony.” See Cheek v. Cheek, 500 So.2d 17, 19 (Ala.Civ.App.1986) (holding that the substance of the alimony award takes precedence over its label). The former wife specifically moved the court to modify the provisions in the divorce judgment in order to allow her to complete her education. At the outset of the trial, her attorney indicated that the former wife was seeking to continue or extend “rehabilitative alimony.” The evidence presented by the former wife focused solely on her financial needs during the period when she was pursuing her college education. The former wife specifically testified that she wanted her alimony extended “just until I get out of school.” Most importantly, in its judgment, the trial court specifically stated that it was “enlarging” the former wife’s alimony in order to assist the former wife from going into greater debt while she was improving her life situation. The trial court specifically stated that the award would last only until May 2010, a date the former wife testified to as a projected graduation date, and further stated that the award would be payable only so long as the former wife “takes at least six credit hours per semester.”

Generally speaking, in order to obtain modification of a rehabilitative-alimony award, a recipient spouse must file a petition for modification before the expiration of the award. See, e.g., Giardina v. Giardina, 987 So.2d 606, 620 (Ala.Civ.App.2008). In this ease, by the terms of the 2003 divorce judgment, the award of rehabilitative alimony expired on April 17, 2006. The former wife did not file her modification petition until June 28, 2006, two months later. Based on the general rule, the trial court did not have jurisdiction to award the former wife additional rehabilitative alimony.

The trial court reasoned that it could nevertheless award the former wife additional rehabilitative alimony based on the clause in its 2003 judgment in which it “reserv[ed] the right to award periodic alimony.” Our cases uniformly hold that it is error for a trial court to award rehabilitative alimony without reserving jurisdiction to award periodic alimony. See Fowler v. Fowler, 773 So.2d 491, 495 (Ala.Civ.App.2000), overruled on other grounds, J.L. v. A.Y., 844 So.2d 1221, 1225 (Ala.Civ.App.2002); and Giardina, supra. By requiring a trial court to reserve jurisdiction to later award periodic alimony following a period of rehabilitative alimony, those cases suggest a distinction between the broader class of alimony known as periodic alimony and the subclass known as rehabilitative alimony. See Coby v. Coby, 489 So.2d 597, 597 (Ala.Civ.App.1986) (“The wife, through able counsel, appeals, contending that she was entitled to periodic alimony or, alternatively, to ‘rehabilitative’ alimony.” (emphasis added)). Based on my review of pertinent Alabama caselaw, I have not uncovered a single case explaining that distinction and deciding whether a reservation of jurisdiction to award “periodic alimony” includes the authority to revive an award of rehabilitative alimony after it has expired by the terms of the judgment.

It may be argued that a reservation of jurisdiction to award periodic alimony naturally includes a reservation of jurisdiction to award rehabilitative alimony because, as has already been noted, the latter is a subclass of the former. However, such a reading would render the time limitation on an award of rehabilitative alimony totally meaningless. “Courts are to construe judgments as they construe written contracts, applying the same rules of construction they apply to written contracts.” State Pers. Bd. v. Akers, 797 So.2d 422, 424 (Ala.2000). A provision in a contract should not be construed so as to render another portion of the contract meaningless. Sullivan, Long & Hagerty v. Southern Elec. Generating Co., 667 So.2d 722, 725 (Ala.1995). Rather, courts should strive to construe the two provisions together to give effect to each. Id.

In construing a written instrument with seemingly conflicting clauses, the specific provision prevails over a general provision relating to the same subject matter. See, e.g., Alabama Dep’t of Revenue v. Jim Beam Brands Co., 11 So.3d 858, 862-63 (Ala.Civ.App.2008); and Ward v. Check Into Cash of Alabama, LLC, 981 So.2d 434, 438 (Ala.Civ.App.2007). Thus, to harmonize the two clauses and to give full effect to each, a general reservation of jurisdiction to award “periodic” alimony that follows a clause awarding rehabilitative alimony for a specific duration cannot be construed as granting to the trial court authority to revive the award of rehabilitative alimony after it has expired. Rather, it only reserves to the trial court the authority to determine, based on the results of the recipient spouse’s rehabilitation efforts and other material circumstances then existing, whether equity demands that the spouse receive periodic alimony designed to maintain his or her former standard of living and to fix an award based on that determination.

In this case, the trial court did not award the former wife alimony designed to maintain her former standard of living. In fact, no evidence was adduced at trial regarding the standard of living the wife enjoyed during the parties’ marriage. Instead, the trial court impermissibly revived the rehabilitative-alimony award in this case, reduced it to $300 per month, and conditionally extended it to May 2010. Based on the foregoing reasoning, I believe that the trial court acted outside its jurisdiction in reviving the rehabilitative-alimony award and that the February 21, 2008, judgment is therefore void. Because the majority of the court believes otherwise and affirms that judgment, I respectfully dissent.

      . I interpret paragraph 15 as preventing the former husband from petitioning the trial court during the stated three-year period to reduce his obligation to pay rehabilitative alimony on the basis that the former wife has obtained employment if the wages from that employment do not exceed $30,000 per year. Hence, I do not agree with the former wife’s contention that paragraph 15 implies that rehabilitative alimony will continue if she is not earning wages over $30,000 by April 17, 2006.

      . Apparently, the former wife discontinued working two jobs at some point, but the record is not clear as to when that occurred.

      . At one point, the former wife testified that had she received $2,000 to $3,000 in grants for one semester, which would have covered her entire tuition costs, but she later stated that she was mistaken. The record contains no evidence of the amount of the grants the former wife has received.

      . The evidence established that the former wife had earned $19,990 in 2003, $17,286 in 2004, $16,028 in 2005, $10,688.40 in 2006, and $14,916.84 in 2007.

      .The former husband earned $64,380 in 2005, $60,089.54 in 2006, and either $54,931 (as evidenced by a W-2 form the former husband introduced) or $61,811.45 (as evidenced by a W-2 form the former wife introduced) in 2007.


author: BRYAN, Judge. PITTMAN, Judge,

text:
    MONTGOMERY COUNTY DEPARTMENT OF HUMAN RESOURCES v. W.J.
    2080350.
    Court of Civil Appeals of Alabama.
    Oct. 2, 2009.

      Sharon E. Ficquette, chief legal counsel, and Elizabeth Hendrix, staff atty., Department of Human Resources, for appellant.
    J. Matthew Williams of The Anderson Law Firm, LLC, Montgomery, for appel-lee.
   BRYAN, Judge.

The Montgomery County Department of Human Resources (“DHR”) appeals from a judgment of the Montgomery Juvenile Court refusing to terminate the parental rights of W.J. (“the father”) to his child, S.J. (“the child”), a girl born in June 2006. We reverse and remand with instructions.

The record on appeal establishes the following. DHR became involved with the child and M.P. (“the mother”) on July 24, 2006, when DHR received a report indicating that the mother was using controlled substances and that the child’s well-being was in danger. On July 25, 2006, the juvenile court issued a pick-up order for the child. DHR filed a dependency petition on July 27, 2006, based on the mother’s history of drug use, her inattentiveness to the child’s medical needs, and because she was suspected of abusing her other children. The juvenile court found the child dependent on August 28, 2006, and it awarded custody of the child to DHR. DHR subsequently placed the child in foster care.

The father filed a petition seeking custody of the child on September 7, 2006. The father’s paternity was established in January 2007. On June 25, 2007, the juvenile court held a permanency hearing and determined that the child remained dependent and that it was in the child’s best interest to remain in the temporary legal custody of DHR.

DHR filed a petition to terminate the parental rights of the mother and the father on August 17, 2007. On February 13, 2008, the paternal grandmother filed a petition seeking custody of the child.

The juvenile court heard ore tenus evidence on DHR’s petition to terminate the parental rights of the father and the mother, on the paternal grandmother’s petition for custody, and on the father’s petition for custody on March 17, 2008, May 5, 2008, August 18, 2008, and October 27, 2008.

On December 1, 2008, the juvenile court entered a judgment refusing to terminate the father’s parental rights. The judgment stated, in pertinent part:

“[T]he court is of the [ojpinion that the [fjather ... has demonstrated a willingness to exercise his parental responsibility. However, he has fallen short in fulfilling his responsibility. With good-faith assistance from [DHR], the court is of the [o]pinion that [the father] can work toward reunification with the ... [e]hild. Additionally, the court notes that the [p]aternal [g]randmother has also demonstrated a willingness to provide and care for the minor child. However, the court is unable to award custody to the [p]aternal [g]randmother at this time based upon positive drug tests and her refusal to comply with [DHR] requests for drug screens.”

The juvenile court entered an amended order in response to DHR’s motion to alter, amend, or vacate the juvenile court’s judgment, pursuant to Rule 59(e), Ala. R. Civ. P. The juvenile court again refused to terminate the parental rights of the father because the paternal grandmother was “willing to care for the ... child.” However, the final judgment as amended again failed to award custody of the child to the paternal grandmother.

At the March 2008 hearing, the father testified that he was a “rap” artist and that he had left New York and the possibility of a “record deal” so that he could return to Montgomery and seek custody of the child. Upon his return, the father moved into the paternal grandmother’s home and found a job with an automobile-auction company earning $6 per hour.

The father claimed that he did not complete the parenting classes at the Family Guidance Center that were recommended by DHR because the classes conflicted with his scheduled visitation with the child. He claimed that he had located a different parenting class that did not conflict with his schedule but that DHR did not find that class appropriate. The father later admitted that DHR had set up a special arrangement for him at the Family Guidance Center so that he could attend parenting classes during his lunch break.

The father admitted that he had provided no monetary support for the child, but he stated that he had bought her “clothes and shoes and stuff.” He stated that he earned approximately $800 a month driving cars for the automobile-auction company and that he had worked for the same employer for two years. He testified that he paid no rent and half of the utility bill for the paternal grandmother’s home. He stated that if he obtained custody of the child he would have to get a second job.

DHR introduced evidence indicating that the father had submitted to drug screens on January 9, 2007, and June 5, 2007; the first drug screen was positive for marijuana, and the second was positive for cocaine. The father admitted that he had smoked marijuana on March 8, 2007. He stated that the reason he tested positive for cocaine in June 2007 was because he had “touched it.” The father also admitted that he had refused to submit to drug screens on three or four occasions in 2006 and 2007.

The father admitted that he had failed to complete the drug-rehabilitation program at Lighthouse Counseling Center (“Lighthouse”) that DHR had recommended. The father testified that DHR had made special arrangements for him to arrive at Lighthouse late due to his work schedule. The father admitted that he could not pass a hair-follicle test on the day of the March 2008 hearing because he had “been around” someone smoking marijuana.

The father testified that he had scheduled visitation with the child every Tuesday for one hour. He stated that he was not scheduled to work on Tuesdays but that he would occasionally get called in to work after his visitation. The father stated that he had visited the child regularly throughout 2007, except for “a couple of days” that he was called in to work.

The father also stated that he had given DHR a list of relative resources that could take custody of the child and that the list was inclusive of everyone he thought could adequately care for the child. He admitted that he had not requested any services from DHR that DHR had failed to provide to him.

At the hearing in May 2008, Allison McNeil, a social worker with DHR, testified that DHR had held individualized service plan (“ISP”) meetings regarding the child on August 25, 2006, July 27, 2006, January 29, 2007, July 16, 2007, and December 20, 2007. McNeil stated that the father was required to submit to random drug screens, to attend parenting classes, to attend drug rehabilitation at Lighthouse, to submit to a psychological evaluation, to maintain employment, and to provide drug-free, safe, and stable housing for the child. McNeil stated that DHR had offered the father services to meet those goals, including visitation, parenting classes, drug treatment, transportation assistance, and a psychological evaluation, but that the father had not been compliant with all the goals set forth in the ISPs.

McNeil indicated that she had referred the father to parenting classes at the Family Guidance Center, but the father did not attend. After the father indicated that the parenting classes interfered with his schedule, McNeil made special arrangements with an instructor at the Family Guidance Center so that the father could meet with the instructor for parenting classes during his lunch break. The father was required to contact the instructor to set up appointments, but the father never did so. McNeil stated that the father did suggest another parenting class, but DHR did not approve of that class for the father because it was designed to counsel couples in conflict.

Although the father claimed in March 2008 that he was still employed at the automobile-auction company, McNeil testified that she had contacted the automobile-auction company to verify his employment, but, she said, a representative of the company had stated that the father no longer worked for the company and that his last paycheck had been issued on February 1, 2008. McNeil did not know if the father had maintained a job between February 2008 and the final hearing in October 2008.

At the May 2008 hearing, McNeil stated that the father had not visited the child since the prior hearing in March 2008. At the October 2008 hearing, McNeil testified that the father had visited the child on 38 occasions but had missed 55 scheduled visits with the child. DHR presented evidence indicating that the father had not visited the child from January 22, 2008, through May 27, 2008, and that from May 27, 2008, through June 25, 2008, the father had visited the child on only one occasion. As of October 27, 2008, the father had not visited the child since August 12, 2008.

McNeil stated that the father had failed to complete drug rehabilitation at Lighthouse. Records indicate that the father began substance-abuse treatment at Lighthouse on March 9, 2007. As corroborated by the father’s testimony, special arrangements were made by DHR with the staff at Lighthouse so that the father could arrive to the rehabilitation meetings late, in order to comply with his work schedule. However, by April 30, 2007, a report from Lighthouse indicated that the father’s attendance was unsatisfactory and that he was making no progress in his treatment. The father was scheduled to be discharged from the program on May 21, 2007. The father began treatment with Lighthouse again on June 13, 2007. However, by October 31, 2007, the father’s case had been closed due to the fact that the father’s attendance was unsatisfactory and because the father had made no further progress.

McNeil testified that DHR had made an effort to locate relative resources who could take custody of the child as an alternative to terminating the father’s parental rights. DHR investigated seven individuals, including the paternal grandmother. Only two of those relatives expressed an interest in adopting the child. McNeil referred the two individuals to her supervisor and suggested that they file petitions for custody of the child. McNeil attempted contacting both relatives for a followup, but her telephone calls were not returned by either relative.

DHR also considered custody with the paternal grandmother as a viable alternative to termination. The paternal grandmother testified that she had not been employed since 2007 and that she relied on approximately $618 a month in disability payments as income. She stated that she had recently moved into a home with her fiancé. DHR evaluated the paternal grandmother’s home that she shared with her fiancé and found that it was adequate to meet the needs of the child.

The paternal grandmother admitted that, prior to the first hearing in March 2008, DHR had requested that she submit to a drug screen on four occasions but that she had only taken one. She stated that DHR had informed her that a refusal to submit to a drug screen would be considered a positive drug screen. The drug screen that the paternal grandmother submitted to, in March 2008, indicated that she had used cocaine. She insisted that she was not a habitual drug user and that she had made “one mistake” by self-medicating with cocaine. However, the paternal grandmother submitted to a random drug screen on September 30, 2008, which was positive for cocaine. The paternal grandmother insisted that she did not use cocaine.

At the May 2008 hearing, the paternal grandmother testified that she had not missed any visits with the child since the prior court hearing in March 2008, but she later admitted that she had missed two visits. McNeil noted that despite the fact that the paternal grandmother had been given the opportunity to visit the child every week, the paternal grandmother had visited the child only 25 times between September 2006 and April 2008.

At the October 2008 hearing, DHR introduced an ISP report dated June 25, 2008, which recommended that the paternal grandmother attend parenting classes, submit to a psychological exam, remain drug-free, and complete intake counseling at Lighthouse. The report indicated that the paternal grandmother was present during the ISP meeting at which those recommendations were made. Yet, McNeil testified, the paternal grandmother had not fully complied with any of those recommendations. The paternal grandmother stated that because she uses the public-transportation system, she would have had to walk approximately five miles to attend the psychological evaluation.

McNeil testified that she believed that the child would be in imminent danger if placed in the custody of the father or the paternal grandmother because both parties had demonstrated a lack of desire to cooperate with DHR by refusing to submit to drug screens requested by DHR and because of their positive drug-test results.

The child’s guardian ad litem submitted a report to the juvenile court that recommended that the father’s parental rights be terminated. The guardian ad litem stated that the father and his family were in “denial” and that he believed that they had “[grown] comfortable with [DHR’s] care.” The guardian ad litem also stated that he recommended termination of the father’s parental rights because DHR had given the father the opportunity to rehabilitate himself and he simply had not taken advantage of that opportunity.

“This court affords no presumption of correctness to the juvenile court’s application of the law to the facts. See Brooks v. Brooks, 991 So.2d 293, 300 (Ala.Civ.App.2008). Furthermore,
“ ““ “[t]he appellate courts do not sit in judgment of the facts, and [they] review the factfinder’s determination of facts only to the extent of determining whether it is sufficiently supported by the evidence, that question being one of law.” ’ ” Ex parte T.V., 971 So.2d 1, 9 (Ala.2007) (quoting Hinds v. Hinds, 887 So.2d 267, 272-73 n. 2 (Ala.Civ.App.2003), quoting in turn Curtis White Constr. Co. v. Butts & Billingsley Constr. Co., 473 So.2d 1040, 1041 (Ala.1985)).’
“J.W.M. v. Cleburne County Dep’t of Human Res., 980 So.2d 432, 433 (Ala.Civ.App.2007).”

Montgomery County Dep’t of Human Res. v. C.R., 4 So.3d 1162, 1169 (Ala.Civ.App.2008).

The evidence establishes that the child was dependent pursuant to § 12-15-1(10), Ala.Code 1975. The juvenile court had made two prior determinations in this case finding the child dependent; the first determination was made on August 28, 2006, and the second was made on June 25, 2007. The mother voluntarily relinquished her parental rights by a signed agreement dated September 8, 2008. The father withdrew his petition for custody of the child on August 18, 2008. Further, the juvenile court refused to grant the father custody of the child, noting that he had “fallen short in fulfilling his responsibility” to the child. The juvenile court also refused to grant custody of the child to the paternal grandmother because she had tested positive for cocaine on two occasions and had refused to submit to drug tests requested by DHR on three occasions. After considering the evidence in the record, the evidence supports a determination that the child is dependent.

Pursuant to Ex parte Beasley, 564 So.2d 950, 952 (Ala.1990), after it has been determined that the child is dependent, a juvenile court is then required to determine whether there exists a viable alternative to the termination of parental rights. In this case, the juvenile court refused to terminate the father’s parental rights because the paternal grandmother was “willing to care for the child.” However, as stated above, the juvenile court was unwilling to grant immediate custody of the child to the paternal grandmother because of her illicit drug use and her “refusal to comply with [DHR’s] requests for drug screens.” On appeal, DHR argues that the juvenile court erred in failing to terminate the father’s parental rights because clear and convincing evidence demonstrated that no viable alternative to terminating the father’s parental rights existed. We agree.

The juvenile court, in essence, found that the father’s parental rights should not be terminated because the paternal grandmother might become a viable alternative at some point in the future. Becoming a viable alternative at some point in the future is not the proper standard; an individual is a viable alternative to termination if the individual is presently fit and capable of taking custody of the child. See T.B. v. Cullman County Dep’t of Human Res., 6 So.3d 1195, 1204 (Ala.Civ.App.2008) (“One of the ‘viable alternatives’ to termination of parental rights as set out in the parental-rights-termination statute is placement of the child with a fit and willing relative qualified to receive and care for the child when that placement serves the best interests of the child.” (emphasis added)). See also V.M. v. State Dep’t of Human Res., 710 So.2d 915, 921 (Ala.Civ.App.1998) (requiring DHR to consider a viable alternative to termination in light of her present circumstances).

DHR excluded the paternal grandmother as a viable alternative because the paternal grandmother had refused three drug screens and had submitted to one drug screen that showed that she had used cocaine. At the May 2008 hearing, the paternal grandmother professed that her use of cocaine was a one-time “mistake” and that she would never do anything to lose the child. However, the paternal grandmother again tested positive for cocaine after a random drug screen in September 2008. In refusing to grant custody of the child to the paternal grandmother, the juvenile court implicitly found that the paternal grandmother was unfit to take custody of the child and was, therefore, not a viable alternative to terminating the father’s parental rights.

DHR also argues on appeal that the juvenile court erred in failing to terminate the father’s parental rights despite clear and convincing evidence demonstrating that the father was unable or unwilling to discharge his responsibilities to and for the child. The original judgment of the juvenile court recognized that the father had “fallen short in fulfilling his [parental] responsibility.” The juvenile court further stated that it believed that the father could be reunited with the child after “good-faith assistance from [DHR].” This finding is unsupported by the evidence. The juvenile court heard undisputed evidence establishing (1) that the father had failed to attend parenting classes as requested by DHR, (2) that the father had failed to complete drug rehabilitation as requested by DHR, and (3) that the father had failed to maintain consistent visitation with the child as the case progressed. The juvenile court erred in implicitly determining that DHR had not produced clear and convincing evidence demonstrating that DHR’s reasonable efforts to rehabilitate the father had failed and that the father was unable or unwilling to discharge his responsibilities to and for the child. § 26-18-7(a)(6), Ala.Code 1975. See also § 26-18 — 7(b)(1), (2), and (4), Ala.Code 1975.

The juvenile court relied on the fact that the father might be able to rehabilitate himself in the future after receiving continued services from DHR. However, evidence introduced by DHR indicated that the father was becoming less committed to obtaining custody of the child as the proceeding progressed. “ ‘This court has consistently held that the existence of evidence of current conditions or conduct relating to a parent’s inability or unwillingness to care for his or her children is implicit in the requirement that termination of parental rights be based on clear and convincing evidence.’ ” P.H. v. Madison County Dep’t of Human Res., 937 So.2d 525, 531 (Ala.Civ.App.2006). See also T.B. v. Cullman County Dep’t of Human Res., 6 So.3d 1195, 1202 (Ala.Civ.App.2008)(“In the absence of exceptional circumstances, a parent’s efforts at rehabilitation should not extend beyond 12 months from the date the child enters foster care because our legislature has established that period as the presumptively reasonable time for conducting reunification efforts. M.A.J. v. S.F., 994 So.2d 280, 291 (Ala.Civ.App.2008).”).

The juvenile court has effectively set aside the child’s right to permanency and stability in favor of awarding the father and the paternal grandmother further opportunities to rehabilitate themselves. The child should not be forced to suffer a lack of permanency due to the father’s and paternal grandmother’s inability to provide, in a timely manner, a drug-free, safe, and stable home. We have held that, “at some point, [a child’s] need for permanency must outweigh repeated efforts by DHR to rehabilitate” a parent. N.A. v. J.H., 571 So.2d 1130, 1134 (Ala.Civ.App.1990) (citing § 26-18-7(b)(4), Ala.Code 1975). Further, “[i]n R.L.B. v. Morgan County Department of Human Resources, 805 So.2d 721, 725 (Ala.Civ.App.2001), this court held that maintaining a child in foster care indefinitely is not a viable alternative to termination of parental rights.” T.G. v. Houston County Dep’t of Human Res., [Ms. 2070841, April 24, 2009] — So.3d -, - (Ala.Civ.App.2009). Therefore, we conclude that maintaining the child in foster care while the father and the paternal grandmother attempt to rehabilitate themselves was error.

The judgment of the juvenile court is reversed, and this cause is remanded to the juvenile court with instructions to enter a judgment consistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

THOMPSON, P.J., and THOMAS, J., concur.

PITTMAN, J., dissents, with writing, which MOORE, J., joins.

PITTMAN, Judge,

dissenting.

We have been instructed by the Alabama Supreme Court that, in considering an appeal in a termination-of-parental-rights case, we are to “apply a presumption of correctness” to a determination regarding the viability of an alternative to termination. Ex parte State Dep’t of Human Res., 834 So.2d 117, 122 (Ala.2002). Under a consent judgment, R.C. v. Nachman, 969 F.Supp. 682, 702 (M.D.Ala.1997), aff'd, 145 F.3d 363 (11th Cir.1998), DHR has the affirmative duty to facilitate family reunification whenever that goal is possible. The juvenile court has determined in this case that such reunification, contrary to DHR’s contentions, is possible if all parties heed the juvenile court’s injunction to “work together for the good of the ... child.” The evidence adduced in the juvenile court concerning the father and the paternal grandmother and their current circumstances, although certainly not all favorable to their interests, is not so overwhelming as to require a conclusion that the juvenile court acted outside its discretion in concluding that DHR had not adduced the clear and convincing evidence necessary to negate the prospect that the paternal grandmother may serve as a viable alternative to termination until a time when the father may ultimately rise above his current deficiencies. I therefore dissent from the reversal.

MOORE, J., concurs.

      . The father withdrew his petition for custody on August 18, 2008. The mother signed a waiver voluntarily relinquishing her parental rights to the child on September 8, 2008. The mother is not a party to this appeal.

      . It was the father's testimony that he had contracted the flu in February 2008 and had not visited the child for fear of making her sick.

      . By Act No. 2008-277, Ala. Act 2008, the provisions of the former Alabama Juvenile Justice Act, § 12-15-1 et seq., Ala.Code 1975, and the former Alabama Child Protection Act, § 26-18-1 et seq., Ala.Code 1975, were either repealed or amended, renumbered, and incorporated into the current Alabama Juvenile Justice Act ("AJJA”), § 12-15-101 et seq., Ala. Code 1975. The effective date of the AJJA is January 1, 2009; it is not applicable to this case.

      . See § 12 — 15—71 (a)(3)c., Ala.Code 1975 (providing that, after a child is found to be dependent, the juvenile court may transfer legal custody to a relative who, "after study by the Department of Human Resources, is found by the court to be qualified to receive and care for the child " (emphasis added)). See supra note 3.

      . Arguably, the father’s withdrawal of his petition for custody of the child on August 18, 2008, was a tacit admission that he was unable to discharge his responsibilities to and for the child.

      . See supra note 3.

      . Although the father visited the child in 2006 and sporadically in 2007, the father went approximately 4 months without visiting the child in early 2008, and at the time of the last hearing in October 2008, the father had not visited the child in approximately 11 weeks.

      .The father had approximately 23 months to rehabilitate himself, from the time the father's paternity was adjudicated in January 2007 until the entry of the juvenile court’s final order. DHR provided services to the father throughout those 23 months, and, in addition, DHR offered visitation to the father from September 2006, before he had been adjudicated the father, through December 2006, a period of approximately four months.


author: THOMAS, Judge.

text:
    Jeffery Dale WOOD v. Susan Alline WOOD.
    2080404.
    Court of Civil Appeals of Alabama.
    Oct. 2, 2009.

      Jack Floyd of Floyd Law Firm, LLC, Gadsden, for appellant.
    Thomas A. King, Gadsden, for appellee.
   THOMAS, Judge.

Jeffery Dale Wood (“the husband”) appeals from a judgment of the Etowah Circuit Court divorcing him and Susan Alline Wood (“the wife”). We dismiss for want of jurisdiction.

The husband and the wife were married in June 1983. Two children were born of the man'iage, one of whom was a minor at the time of the parties’ divorce. On January 30, 2008, the wife sued the husband for a divorce. The wife, in her complaint, requested, among other things, possession of the marital home, that the husband be solely responsible for the outstanding mortgage on the marital home, and that the husband pay the wife alimony and child support. The wife also requested postminority educational support for the parties’ minor child, who was near the age of majority.

On January 30, 2008, the wife also moved the trial court for pendente lite relief, repeating the requests from her divorce complaint. On the same day, the trial court entered an order setting a date for a hearing on the wife’s motion for pendente lite relief, granting the wife and the parties’ minor child exclusive use of the marital home, ordering the husband to pay the mortgage on the marital home, ordering the husband to obtain insurance on the minor child’s automobile, enjoining both parties from disposing of or concealing any marital assets, and enjoining each party from harassing the other party. On March 19, 2008, after the hearing on the wife’s motion for pendente lite relief, the trial court entered another pendente lite order, ordering the husband to pay to the wife $400 every two weeks as child support and $160 every two weeks as the husband’s portion of the mortgage on the marital home.

On September 29, 2008, the trial court held a bench trial, at which it heard ore terms evidence. On November 6, 2008, the trial court entered a judgment divorcing the parties, allocating the marital property, and ordering the husband to pay to the wife alimony and child support. Both parties filed timely postjudgment motions to vacate, alter, or amend the trial court’s judgment, pursuant to Rule 59, Ala. R. Civ. P. On December 15, 2008, the trial court held a hearing on both postjudgment motions; on December 22, 2008, the trial court denied both parties’ postjudgment motions. The husband timely appealed to this court.

Although, in her complaint, the wife did not claim that the husband should be held in contempt for violating the trial court’s pendente lite orders, she did make that claim at trial. The husband did not object to the claim of contempt being tried, and the wife and the husband presented evidence regarding the husband’s obligations and compliance with the pendente lite orders. Therefore, we deem the wife’s contempt claim to have been tried by the implied consent of the parties. See Rule 15(b), Ala. R. Civ. P. (“When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.”). The trial court’s judgment did not address the wife’s contempt claim.

Although neither party raises the issue whether the trial court’s judgment is final, “ ‘jurisdictional matters are of such importance that we take notice of them at any time and do so even ex mero mote.’ ” Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ.App.1997) (quoting Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987)).

“An appeal ordinarily lies only from the entry of a final judgment. Ala.Code 1975, § 12-22-2; Bean v. Craig, 557 So.2d 1249, 1253 (Ala.1990). A judgment is generally not final unless all claims, or the rights or liabilities of all parties, have been decided. Ex parte Harris, 506 So.2d 1003, 1004 (Ala.Civ.App.1987).”

Henning v. Henning, 999 So.2d 523, 525 (Ala.Civ.App.2008).

In this case, the trial court’s judgment did not dispose of the wife’s contempt claim; therefore, the trial court’s judgment was not final, and we dismiss the husband’s appeal. See N.H. v. T.A.P., 963 So.2d 97, 98-99 (Ala.Civ.App.2007) (holding that a trial court’s judgment was nonfinal when the father’s claim for child support was tried by consent of the parties and the trial court’s judgment did not dispose of that claim).

APPEAL DISMISSED.

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


author: THOMPSON, Presiding Judge.

text:
    STEAM & PROCESS REPAIRS v. Michael V. CAYTON.
    2080529.
    Court of Civil Appeals of Alabama.
    Oct. 2, 2009.

      Douglas L. Brown of Brady Radcliff & Brown, LLP, Mobile, for appellant.
    Richard E. Browning and Katherine M. Browning of Richard E. Browning, P.C., Mobile, for appellee.
   THOMPSON, Presiding Judge.

Steam & Process Repairs (“S & P”) appeals from the trial court’s judgment in this workers’ compensation action. In its appeal, S & P contends that the trial court erred in the way it gave credit to S & P for temporary-total-disability payments S & P made to employee Michael V. Cayton after Cayton had reached maximum medical improvement (“MMI”).

The pertinent facts are as follows. From May 22, 2004, to April 18, 2008, S & P voluntarily paid Cayton $513.54 a week in temporary-total-disability benefits for a back injury Cayton had sustained in a work-related accident. Most of the weekly payments were made while this matter was being litigated. In its judgment, the trial court determined that Cayton had sustained a 75% permanent partial disability as a result of the injury and that he had reached MMI on April 4, 2006. The trial court also found that S & P was entitled to a credit “to the extent that benefits paid for temporary total disability after the date of maximum medical improvement exceeded benefits due for permanent partial disability.” The trial court directed the parties to confer to determine the amount of compensation owed to Cayton in light of the credit due to S & P.

S & P argued that it was entitled to a credit in the form of a reduction in payment equal to the actual dollar amount it had overpaid Cayton after he had reached MMI. Cayton argued that S & P was entitled to credit in the form of a deduction of the number of weeks it had paid Cayton temporary-total-disability benefits from the total number of weeks Cayton was entitled to receive permanent-partial-disability benefits. The parties’ respective methods of calculation are discussed more fully below. The parties were unable to agree on the amount of compensation owed. They returned to the trial court to resolve the issue. After a hearing, the trial court entered an amended order finding that S & P had paid Cayton temporary-total-disability benefits for 204 weeks and that Cayton was entitled to receive permanent-partial-disability benefits for 300 weeks pursuant to § 25-5-57(a)(3)g., Ala.Code 1975. The trial court gave S & P credit for the number of weeks it had already paid benefits to Cayton and ordered it to pay the $220 a week Cayton was entitled to receive in permanent-partial-disability benefits for the remaining 96 weeks.

On appeal, S & P argues that the trial court should have awarded it a monetary credit for the amount of money it had overpaid Cayton rather than credit for the time those overpayments were made, i.e., credit for the number of weeks S & P had made the overpayments. S & P bases its contention on § 25-5-56, AIa.Code 1975, which states, in pertinent part:

“All moneys voluntarily paid by the employer or insurance carrier to an injured employee in advance of agreement or award shall be treated as advance payments on account of the compensation. In order to encourage advance payments, it is expressly provided that the payments shall not be construed as an admission of liability but shall be without prejudice.”

Cayton contends that § 25-5-56 is inapplicable because it deals only with cases involving a settlement between the parties. Instead, he says, § 25-5-57(a)(3)g., Ala. Code 1975 governs the method of the calculation of the credit in this case. Section 25-5-57(a)(3)g. provides, in pertinent part:

“If a permanent partial disability, compensation for which is not calculated by use of the schedule in subdivision (a)(3) of this section, follows a period of temporary total disability resulting from the same injury, the number of weeks of the temporary total disability shall be deducted from the number of weeks payable for the permanent partial disability.”

Section 25-5-57(a)(3)g. does not encompass situations in which there has been an overpayment of temporary-total-disability benefits. It simply allows an employer to deduct the time the employee is entitled to receive temporary-total-disability benefits from the total number of weeks an injured employee is entitled to receive benefits for a permanent partial disability.

“Our review of the Workmen’s Compensation Act reveals nothing barring a credit for advance payments of permanent partial disability benefits. Although no section of the Act specifically provides for an employer to be given credit for permanent partial disability benefits paid prior to a trial court’s judgment, the Act appears to favor the payment of benefits prior to litigation. ...
“This court has interpreted § 25-5-56 as intended ‘to encourage the employer ... to make advance payments to the disabled employee without waiting for a determination of the question of liability, the length of disability, or the extent of the injuries.... [I]f the employer were [sic] not insured the employer may take credit for voluntary advance payments against the amount of ultimate liability.’ March v. City of Huntsville, 45 Ala.App. 480, 483, 232 So.2d 662, 664 (Civ.App.1970).”

Gold Kist, Inc. v. Mullinax, 650 So.2d 937, 939 (Ala.Civ.App.1994)(footnote omitted).

In Mullinax, this court explained the rationale behind allowing an employer to receive a monetary credit for advance payments of permanent-partial-disability benefits.

“The workers’] compensation laws are to be liberally construed in favor of the injured employee. To disallow credit for advance payment of permanent partial disability, as in this case, is contrary to the legislative intent of § 25-5-56, which encourages employers to make advance payments during the period between the accident and the determination of liability and the extent of the injury. This interpretation of § 25-5-56 favors the employee by encouraging employers to make payments to the injured employee while waiting, if necessary, for a court determination regarding liability and benefits due. The disallowance of credit for advance payments for permanent partial disability would, in all likelihood, discourage advance payments.”

Id.

In Hedgemon v. United Parcel Service, Inc., 832 So.2d 656, 661 (Ala.Civ.App.2002), this court, while addressing the issue whether an employer had the right to recoup overpayment of benefits, recognized the employer’s right to receive a credit for overpayment of benefits, stating:

“[T]he Mullinax court rightly recognized that, in order to make an award of future benefit payments to an employee that would result in the employee’s receiving the correct total amount of benefits to which he or she was entitled under the terms of the [Workers’ Compensation] Act, it obviously had to allow a credit for all similar payments made in advance of the trial court’s judgment. Mullinax, 650 So.2d at 939.”

See also Easley v. Huntsville-Madison County Pub. Library, 977 So.2d 516, 520 (Ala.Civ.App.2007) (affirming judgment awarding an employer a monetary credit for prejudgment disability payments it had made to its injured employee and applying credit against the accrued permanent-partial-disability benefits owed the employee).

In this case, S & P paid Cayton $513.34 a week for 98 weeks before he reached MMI and for an additional 106 weeks after he reached MMI. The trial court determined that Cayton was to receive $220 each week in permanent-partial-disability benefits. Payment of permanent-partial-disability benefits should have begun when Cayton reached MMI. Fort James Operating Co. v. Stephens, 996 So.2d 833, 840 (Ala.2008) (for an employee to receive permanent-partial- or permanent-total-disability benefits, the employee must have reached MMI (citing Ex parte Phenix Rental Ctr., 873 So.2d 226 (Ala.2003))). Therefore, from the time Cayton reached MMI, S & P overpaid him $293.54 each week for 106 weeks for a total overpayment of $31,115.24.

Based upon the authorities cited above, 5 & P should have received a credit for those overpayments. The credit should have been applied to the permanent-partial-disability benefits of $220 each week for the 96 weeks remaining of the total of 300 weeks Cayton was entitled to compensation pursuant to § 25-5-57(a)(3)g. At a rate of $220 each week for 96 weeks, S & P owed Cayton a total of $21,120 in permanent-partial-disability benefits. Once S & P is credited with the $31,115.24 it had already overpaid Cayton during the 106 weeks after Cayton reached MMI, however, S & P will owe Cayton no further compensation, because S & P has paid $9,995.24 more than Cayton is entitled to recover from S & P. The issue whether S 6 P is entitled to recoup that amount is not before this court.

For the reasons set forth above, the judgment of the trial court allowing S & P a credit for the number of weeks it had overpaid Cayton, but not for the amount of the overpayment, is due to be reversed, and the cause is remanded for the entry of a judgment consistent with this opinion.

REVERSED AND REMANDED.

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

      . The 98 weeks Cayton received temporaiy-total-disability benefits, plus the 106 weeks Cayton received the overpayments, equals 204 weeks of compensation. After deducting the 204 weeks for which Cayton had already received compensation from the 300 weeks he was entitled to receive compensation, Cayton was entitled to receive compensation for 96 more weeks at a rate of $220 each week.