author: SHAW, Justice.

text:
    EX PARTE Stephen HROBOWSKI
    (In re: Roosevelt McCorvey v. Stephen Hrobowski and Kevin Ledyard)
    1170014
    Supreme Court of Alabama.
    February 23, 2018
    Murry S. Whitt of Holtsford Gilliland Higgins Hitson & Howard, P.C., Montgomery, for petitioner.
    Tyrone C. Means of Means Gillis Law, LLC, Mongomery, for respondent.
   SHAW, Justice.

Stephen Hrobowski, one of two named defendants in a civil action pending in the Lowndes Circuit Court, petitions this Court for a writ of mandamus directing the trial court to vacate its August 30, 2017, order denying Hrobowski's motion for a change of venue and to enter an order transferring this action to the Montgomery Circuit Court on the basis of the doctrine of forum non conveniens. We grant the petition and issue the writ.

Facts and Procedural History

On May 6, 2015, Hrobowski was involved in a motor-vehicle accident on Interstate 85 in Montgomery during which his vehicle collided with a vehicle being operated by Kevin Ledyard. As a result of the impact, Ledyard's vehicle struck a vehicle being operated by Roosevelt McCorvey. It appears from the materials before us that McCorvey and Ledyard were Montgomery residents. At the time of the accident, Hrobowski's driver's license indicated that he was a resident of Lowndes County.

In April 2017, McCorvey sued Hrobowski, Ledyard, and various fictitiously named defendants in the Lowndes Circuit Court, alleging claims of "negligence or wantonness" and "negligence per se" stemming from the accident. Hrobowski filed a motion for a change of venue, seeking, pursuant to the forum non conveniens statute, see § 6-3-21.1(a), Ala. Code 1975, to transfer the case to Montgomery County. Hrobowski's motion, which relied on both McCorvey's complaint and an Alabama Uniform Traffic Crash Report ("the accident report"), contended that the only connection of the case to Lowndes County was his alleged residence. According to Hrobowski, Montgomery-based emergency personnel responded to the scene of the accident and the accident report was prepared by an officer employed by the Montgomery Police Department. Hrobowski's motion included authority suggesting that Alabama law and the "interest of justice" favor, in litigation arising from a motor-vehicle accident, transfer from a venue that, although technically proper, has only a weak connection to the accident to the venue where the accident actually occurred.

McCorvey opposed Hrobowski's motion on the ground that Hrobowski had allegedly failed to demonstrate that Montgomery County was either significantly more convenient or that the interest of justice would, as Hrobowski argued, be served by the transfer. According to McCorvey, the factors cited by Hrobowski as evidencing a stronger connection to Montgomery County, which were allegedly supported only by the accident report, "[did] not outweigh [his] choice of a forum." On August 30, 2017, the trial court, without stating the findings on which its decision was based, denied Hrobowski's motion for a change of venue.

Thereafter, Hrobowski requested that the trial court "reconsider" its order denying the transfer. In his motion, Hrobowski renewed his reliance on caselaw that, he argued, favored a transfer of the case to the venue where the accident actually occurred. Hrobowski further maintained that, although his initial motion seeking a change of venue had identified him, as did McCorvey's complaint, as a resident of Lowndes County, he was, as demonstrated by accompanying affidavit testimony, instead a resident of Madison County. See note 2, supra. Thus, according to Hrobowski, Lowndes County no longer had even the weak connection to the case, which his initial motion conceded, but, instead, "has no connection to the accident." McCorvey again opposed Hrobowski's motion, arguing that Hrobowski had been successfully served in accordance with the Alabama Rules of Civil Procedure at the Lowndes County address listed on his driver's license and on the accident report.

Hrobowski filed the instant mandamus petition on October 6, 2017. We ordered answers and briefs.

Standard of Review
" 'The proper method for obtaining review of a denial of a motion for a change of venue in a civil action is to petition for the writ of mandamus. Lawler Mobile Homes, Inc. v. Tarver, 492 So.2d 297, 302 (Ala. 1986). "Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court." Ex parte Integon Corp., 672 So.2d 497, 499 (Ala. 1995). "When we consider a mandamus petition relating to a venue ruling, our scope of review is to determine if the trial court abused its discretion, i.e., whether it exercised its discretion in an arbitrary and capricious manner." Id. Our review is further limited to those facts that were before the trial court. Ex parte American Resources Ins. Co., 663 So.2d 932, 936 (Ala. 1995).'
" Ex parte National Sec. Ins. Co., 727 So.2d 788, 789 (Ala. 1998)."

Ex parte Benton, 226 So.3d 147, 149-50 (Ala. 2016).

Discussion

Hrobowski contends that the underlying action should be transferred to Montgomery County under the interest-of-justice prong of § 6-3-21.1. That Code section states, in pertinent part:

"With respect to civil actions filed in an appropriate venue, any court of general jurisdiction shall, for the convenience of parties and witnesses, or in the interest of justice, transfer any civil action or any claim in any civil action to any court of general jurisdiction in which the action might have been properly filed and the case shall proceed as though originally filed therein."

(Emphasis added.) Hrobowski argues that the Lowndes Circuit Court exceeded its discretion in denying his request to transfer the case to Montgomery County because, he says, Alabama's forum non conveniens statute both is compulsory and creates a preference for transfer to the forum where the underlying injury actually occurred over a forum with only a weak connection to the case. McCorvey argues, on the other hand, that Hrobowski has failed to carry his evidentiary burden of demonstrating that Montgomery County has a stronger connection to the present action. He further contends that accident location alone is not determinative of venue. Under the present facts, however, we disagree.

"This Court explained the application of § 6-3-21.1(a) in Ex parte Tier 1 Trucking, LLC, 222 So.3d 1107, 1112-13 (Ala. 2016) :
" '[C]oncerning whether an action should be transferred under § 6-3-21.1, this Court has stated:
" ' " 'A party moving for a transfer under § 6-3-21.1 has the initial burden of showing, among other things, one of two factors: (1) that the transfer is justified based on the convenience of either the parties or the witnesses, or (2) that the transfer is justified "in the interest of justice." ' Ex parte Indiana Mills & Mfg., Inc., 10 So.3d 536, 539 (Ala. 2008). Although we review a ruling on a motion to transfer to determine whether the trial court exceeded its discretion in granting or denying the motion, id., where 'the convenience of the parties and witnesses or the interest of justice would be best served by a transfer, § 6-3-21.1, Ala. Code 1975, compels the trial court to transfer the action to the alternative forum.' Ex parte First Tennessee Bank Nat'l Ass'n, 994 So.2d 906, 912 (Ala. 2008) (emphasis added)."
" ' Ex parte Wachovia Bank, N.A., 77 So.3d 570, 573 (Ala. 2011).
" '....
" ' " 'The "interest of justice" prong of § 6-3-21.1 requires "the transfer of the action from a county with little, if any, connection to the action, to the county with a strong connection to the action." Ex parte National Sec. Ins. Co., 727 So.2d [788,] 790 [ (Ala. 1998) ]. Therefore, "in analyzing the interest-of-justice prong of § 6-3-21.1, this Court focuses on whether the 'nexus' or 'connection' between the plaintiff's action and the original forum is strong enough to warrant burdening the plaintiff's forum with the action." Ex parte First Tennessee Bank Nat'l Ass'n, 994 So.2d 906, 911 (Ala. 2008). Additionally, this Court has held that "litigation should be handled in the forum where the injury occurred." Ex parte Fuller, 955 So.2d 414, 416 (Ala. 2006). Further, in examining whether it is in the interest of justice to transfer a case, we consider "the burden of piling court services and resources upon the people of a county that is not affected by the case and ... the interest of the people of a county to have a case that arises in their county tried close to public view in their county." Ex parte Smiths Water & Sewer Auth., 982 So.2d 484, 490 (Ala. 2007).' "
" ' Ex parte Quality Carriers, Inc., 183 So.3d 937, 942 (Ala. 2015) (quoting Ex parte Indiana Mills & Mfg., Inc., 10 So.3d 536, 540 (Ala. 2008) ).
" ' "Although it is not a talisman, the fact that the injury occurred in the proposed transferee county is often assigned considerable weight in an interest-of-justice analysis. See Ex parte Autauga Heating & Cooling, LLC, 58 So.3d 745, 748 (Ala. 2010) (' "[T]his Court has held that 'litigation should be handled in the forum where the injury occurred.' " ' (quoting Ex parte Indiana Mills, 10 So.3d at 540 ) ); Ex parte McKenzie Oil, Inc., 13 So.3d 346, 349 (Ala. 2008) (same)."
" ' Ex parte Wachovia, 77 So.3d at 573-74.' "

Ex parte Midsouth Paving, Inc., 250 So.3d 527, 530-32 (Ala. 2017).

" 'Historically, the plaintiff has had the initial choice of venue under the system established by the legislature for determining venue. Before the enactment of § 6-3-21.1 by the Alabama Legislature in 1987, a plaintiff's choice of venue could not be disturbed on the basis of convenience to the parties or the witnesses or in the interest of justice. With the adoption of § 6-3-21.1, trial courts now have "the power and the duty to transfer a cause when 'the interest of justice' requires a transfer." Ex parte First Family Fin. Servs., Inc., 718 So.2d 658, 660 (Ala. 1998) (emphasis added). In First Family, this Court noted that an argument that trial judges have almost unlimited discretion in determining whether a case should be transferred under § 6-3-21.1"must be considered in light of the fact that the Legislature used the word 'shall' instead of the word 'may' in § 6-3-21.1." 718 So.2d at 660. This Court has further held that "Alabama's forum non conveniens statute is compulsory." Ex parte Sawyer, 892 So.2d 898, 905 n. 9 (Ala. 2004).' "

Ex parte Manning, 170 So.3d 638, 640 (Ala. 2014) (quoting Ex parte Autauga Heating & Cooling, LLC, 58 So.3d 745, 748-49 (Ala. 2010) ).

Applying the above-cited authority, on which Hrobowski's petition relies, we conclude that Hrobowski has established that the interest-of-justice prong of § 6-3-21.1 compels transfer of the action to Montgomery County. It is undisputed that the accident that is the subject of the action occurred in Montgomery County, that the accident was investigated by law-enforcement personnel based in Montgomery County, and that both the plaintiff and the other named defendant resided there at all pertinent times. Even assuming, as McCorvey appears to argue, that there may be some question as to whether Hrobowski remains domiciled in Lowndes County, the fact that a defendant resides in a particular forum does not, for purposes of the interest-of-justice prong of § 6-3-21.1, outweigh the forum where the tortious conduct occurred. See Autauga Heating & Cooling, 58 So.3d at 750 ("This Court sees no need to burden Montgomery County, with its weak connection to the case, with an action that arose in Elmore County simply because the individual defendant resides in Montgomery County ...."); Indiana Mills, 10 So.3d at 542 ("We see no need for Macon County, with its weak connection with this case, to be burdened with an action that arose in Lee County simply because one of several defendants resides there."). The undisputed connections with Montgomery County-that the accident occurred there and that McCorvey, the plaintiff, resides there-indicate that Montgomery County, for the purpose of the interest of justice under § 6-3-21.1, has a significantly stronger connection to this case than does Lowndes County. Accordingly, the interest of justice overrides McCorvey's initial selection of the forum.

Conclusion

Based on the foregoing, we hold that the trial court exceeded its discretion in denying Hrobowski's motion for a change of venue based on the interest-of-justice prong of the forum non conveniens statute. We therefore grant Hrobowski's petition and issue a writ of mandamus directing the Lowndes Circuit Court to vacate its August 30, 2017, order denying Hrobowski's motion and to enter an order transferring the underlying action to Montgomery County.

PETITION GRANTED; WRIT ISSUED.

Stuart, C.J., and Bolin, Parker, Main, Wise, Bryan, Sellers, and Mendheim, JJ., concur.

      The other defendant, Kevin Ledyard, was, at the time the litigation was initiated, apparently deceased. On motion of Roosevelt McCorvey, an administrator ad litem was appointed to represent Ledyard's interests in the underlying action; the limited materials before this Court suggest that the administrator ad litem is an attorney whose principal place of business is Hayneville in Lowndes County.

      Hrobowski was 20 years' old at the time of the accident. Apparently, the Lowndes County address on his driver's license was his mother's residence; however, Hrobowski was, on the accident date, enrolled as a student at George Wallace Junior College in Selma, which is in Dallas County. In or around May 2015-after the accident but before any litigation was initiated-Hrobowski moved to Huntsville in Madison County to continue his studies at the University of Alabama at Huntsville, where he is currently enrolled.

      At all times pertinent hereto, McCorvey had not yet substituted any named defendants for the fictitiously named defendants included in his complaint.

      See § 6-3-2(a)(3), Ala. Code 1975 (explaining that all actions, "[i]n proceedings of a legal nature against individuals [other than actions for the recovery of land and on contract,] if the defendant or one of the defendants has within the state a permanent residence, may be commenced in the county of such residence or in the county in which the act or omission complained of may have been done or may have occurred").

      McCorvey included, as support for his opposition, his own affidavit testimony attesting that trial in Lowndes County would not inconvenience any anticipated witnesses.

      This Court has not considered the arguments or evidence made part of Hrobowski's motion to reconsider, because they were not considered by the trial court in its denial of the motion for a change of venue. See Ex parte Fontaine Trailer Co., 854 So.2d 71, 74 (Ala. 2003) ("In considering a mandamus petition relating to a ruling on a motion for a change of venue, '[o]ur review is ... limited to those facts that were before the trial court.' " (quoting Ex parte National Sec. Ins. Co., 727 So.2d 788, 789 (Ala. 1998) ) ).

      Hrobowski's petition was timely filed within 42 days of the trial court's August 30, 2017, order denying his original motion to transfer. See Rule 21(a)(3), Ala. R. App. P. See also Ex parte Troutman Sanders, LLP, 866 So.2d 547, 550 (Ala. 2003) ("[T]he tolling effect of Rule 59[, Ala. R. Civ. P.,] is not involved with respect to motions to 'reconsider' interlocutory orders.").


source: Caselaw Access Project

author: THOMAS, Judge.

license: Public Domain

text:
    Angel BALLARD v. LEE A. MCWILLIAMS CONSTRUCTION, INC.
    Lee A. McWilliams Construction, Inc. v. Angel Ballard
    2160469 2160509
    Court of Civil Appeals of Alabama.
    February 2, 2018
    Christopher A. Callaghan, Gulf Shores, for appellant/cross-appellee Angel Ballard.
    Clifford C. (Kip) Sharpe, Mobile, for appellee/cross-appellant Lee A. McWilliams Construction, Inc.
   THOMAS, Judge.

In January 2010, Lee A. McWilliams Construction, Inc. ("the company"), began renovation work on a house owned by Angel Ballard. Ballard and the company had agreed, per the estimate provided to Ballard, that she would pay for the costs of materials plus 18%; the parties had no written contract. Although Ballard had paid the first three invoices provided to her, she did not pay the entire amount owed according to the May 2010 invoice, which totaled $42,947.33. Ballard made partial payments over the next few years.

In July 2015, Lee A. McWilliams, the principal owner of the company, sued Ballard in the Baldwin Circuit Court ("the trial court"), seeking $27,612.52 in damages based on several legal theories, including breach of contract, work and labor done, and account stated. In the complaint, McWilliams requested prejudgment interest from July 1, 2010. Ballard answered, generally denying the allegations of the complaint and asserting numerous affirmative defenses. McWilliams later amended the complaint to seek recovery of $26,953.75 based on what he described as a personal guarantee executed by Ballard. Ballard, in her answer to the amended complaint, asserted counterclaims alleging breach of implied warranty and fraudulent representation. Ballard also moved for a summary judgment based, in part, on the fact that McWilliams was not the proper plaintiff. McWilliams amended the complaint to add the company as a plaintiff.

The company also moved for a summary judgment. The parties agreed to a judgment in favor of Ballard and against McWilliams, individually, on the claims in the complaint. The trial court entered a summary judgment in favor of Ballard on the company's account-stated claim and in favor of the company on Ballard's breach-of-implied-warranty counterclaim.

After a trial held on August 29, 2016, and October 24, 2016, the trial court entered, on October 26, 2016, a judgment in favor of the company for $25,953.75. The company filed a timely postjudgment motion on November 22, 2016, in which it argued that it was entitled to prejudgment interest. The trial court failed to rule on the motion within 90 days, and it was deemed denied on February 21, 2017. See Rule 59.1, Ala. R. Civ. P. (providing that a postjudgment motion will be denied by operation of law on the 90th day after its filing if not ruled upon before that date).

Ballard timely appealed the judgment on March 23, 2017; her appeal was assigned appeal number 2160469. The company filed its cross-appeal on March 30, 2017; its appeal was assigned appeal number 2160509. We transferred the appeals to our supreme court, which transferred the appeals back to this court, pursuant to Ala. Code 1975, § 12-2-7(6).

Ballard's Appeal

On appeal, Ballard argues that the trial court erred in awarding the company damages when, she says, those same damages were recovered in an "Emergency Advance Payment" of $75,000 from the BP/Gulf Coast Claims Facility, which handled claims made against British Petroleum stemming from the 2010 Deepwater Horizon oil spill. Ballard argued in the trial court that the company had received the $75,000 payment, in part, as compensation for her failure to pay the balance of the costs of the renovation. Her argument on appeal challenges the sufficiency of the evidence supporting the trial court's judgment in favor of the company. However, the trial court's judgment contains no findings of fact. Therefore, in order for Ballard to have preserved a challenge to the sufficiency of the evidence on appeal, she was required to have filed a postjudgment motion raising that issue. See, New Props., L.L.C. v. Stewart, 905 So.2d 797, 801-02 (Ala. 2004) (explaining that, "in a nonjury case in which the trial court makes no specific findings of fact, a party must move for a new trial or otherwise properly raise before the trial court the question relating to the sufficiency or weight of the evidence in order to preserve that question for appellate review"). Ballard's failure to file a postjudgment motion precludes our consideration of this issue, see Boyington v. Bryan, 174 So.3d 347, 359 (Ala. Civ. App. 2014), and the judgment, insofar as the award of damages to the company is challenged by Ballard in appeal number 2160469, is affirmed.

The Company's Cross-Appeal

The company's cross-appeal concerns the trial court's failure to award prejudgment interest on the damages award, which it contends is due under Ala. Code 1975, § 8-8-8. As noted above, the company sought prejudgment interest from July 1, 2010, on the amount due under the parties' oral contract, and the company filed a postjudgment motion raising the failure of the trial court to award prejudgment interest. Section 8-8-8 provides:

"All contracts, express or implied, for the payment of money, or other thing, or for the performance of any act or duty bear interest from the day such money, or thing, estimating it at its money value, should have been paid, or such act, estimating the compensation therefor in money, performed."

We note that "the trial court's interpretation and application of ... § 8-8-8... is a question of law, and, as such, on appeal is not entitled to any presumption of correctness." Miller & Co. v. McCown, 531 So.2d 888, 889 (Ala. 1988).

We discussed the application of § 8-8-8 in Boyington:

"Our supreme court has explained that " '[t]his statute has been interpreted to mean that "in contract cases, where an amount is certain or can be made certain as to damages at the time of breach, the amount may be increased by the addition of legal interest from that time until recovery." C. Gamble, Alabama Law of Damages, § 8-3 (2d. ed. 1988); citing Tennessee Coal, Iron & R. Co. v. Jourdan, 221 Ala. 106, 128 So. 132 (1930) ; Jefferson County v. City of Birmingham, 235 Ala. 199, 178 So. 226 (1938) ; Roe v. Baggett Transportation Co., 326 F.2d 298 (5th Cir. 1963) ; and Belcher v. Birmingham Trust Nat'l Bank, 488 F.2d 474 (5th Cir. 1973).' "

Boyington, 174 So.3d at 362 (quoting McCown, 531 So.2d at 889 ).

Ballard argues that, because the damages that the company had requested changed during the litigation as a result of the discovery of certain mathematical errors and other mistakes on the invoices and because she contested certain charges on the invoices, the damages due the company were not "certain or ... capable of being made certain" at the time of the breach. Wood v. Central Bank of the South, 435 So.2d 1287, 1291 (Ala. Civ. App. 1982). Indeed, the law requires that prejudgment interest be applied to those damages that are capable of being ascertained with "ease and certainty" or by "a simple mathematical computation." Lapeyrouse Grain Corp. v. Tallant, 439 So.2d 105, 112 (Ala. 1983) ; see also Jernigan v. Happoldt, 978 So.2d 764, 767 (Ala. Civ. App. 2007) (awarding prejudgment interest on a judgment in favor of a contractor on his breach-of-contract claim for work performed and materials supplied to homeowners with whom he had a contract). However, Ballard misunderstands what is meant by "certainty."

The fact that the parties disagree regarding the amount of damages actually due under the contract does not make those damages incapable of being ascertained for purposes of awarding prejudgment interest. See Maddox v. Alfa Mut. Ins. Co., 577 So.2d 457 (Ala. 1991), and McCown, 531 So.2d at 889-90. In both Maddox and McCown, the parties disputed the exact amount of damages due the plaintiff. However, because the contract in each case was clear regarding the measure of damages to be awarded upon breach, our supreme court determined that prejudgment interest was due in each case.

In McCown, the contract between a timber cutter and landowners for the cutting of timber set out the damages to be assessed against the timber cutter for cutting unmarked pine or hardwood trees and prohibited the cutting of timber within 150 feet of a riverbank. McCown, 531 So.2d at 888-89. The parties had submitted to a special master different assessments of the number of unmarked trees that had been cut, and, thus, their estimations of the damages due under the contract differed. Id. at 889. The timber cutter argued that the trial court had improperly awarded the landowners prejudgment interest because, he contended, the amount due the landowners was disputed and, therefore, not certain. Id. Our supreme court disagreed, explaining that,

"[o]nce the [special] master reached the factual conclusion from the evidence as to the volume of unmarked and unauthorized trees cut, the loss to the landowners could be fixed by a simple mathematical computation by reference to the liquidated damages provisions of the contract. See Lapeyrouse Grain Corp. v. Tallant, 439 So.2d 105 (Ala. 1983). Therefore, the amount of damages could be made certain at the time of breach."

Id. at 889-90.

Similarly, in Maddox, our supreme court reversed a circuit court's judgment assessing damages to be paid by Alfa Mutual Insurance Company for breach of an insurance contract based on the circuit court's failure to assess prejudgment interest. Maddox, 577 So.2d at 457. The parties agreed that prejudgment interest should be assessed. Id. Our supreme court noted that "[t]he only disputed issue at the trial was the amount of damages, if any, to which the insured was entitled. Once that was established, Ala. Code 1975, § 8-8-8, provided for prejudgment interest on that amount." Id. at 458.

Thus, we agree with the company that, although certain adjustments in the amount it claimed were made after completion of the discovery process, the damages in the present case were capable of being reasonably ascertained at the time of the breach by mathematical computation (a tabulation of the outstanding costs of the project plus 18%). The trial court therefore erred in failing to award prejudgment interest in accordance with § 8-8-8. The judgment is reversed, and we remand the cause to the trial court for the entry of a judgment awarding prejudgment interest.

Conclusion

Because Ballard failed to preserve her challenge to the sufficiency of the evidence supporting the trial court's judgment, we affirm the trial court's judgment, insofar as it awarded damages to the company, in appeal number 2160469. However, in appeal number 2160509, the trial court erred in failing to award the company prejudgment interest. Therefore, in appeal number 2160509, the judgment of the trial court, insofar as it failed to award prejudgment interest, is reversed, and the cause is remanded to the trial court for the entry of a judgment awarding prejudgment interest in compliance with § 8-8-8.

2160469-AFFIRMED.

2160509-REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      The 90th day after November 22, 2016, was February 20, 2017, which was a holiday. Thus, pursuant to Rule 6(a), Ala. R. Civ. P., the period for the trial court to rule on the postjudgment motion expired the following day. See Williamson v. Fourth Ave. Supermarket, Inc., 12 So.3d 1200, 1203-04 (Ala. 2009).


text:
    S.S. v. R.D.
    2160729 2160730
    Court of Civil Appeals of Alabama.
    February 9, 2018
    Brenda Drendel Hetrick, Mobile, for appellant.
    R.D., pro se.
   THOMAS, Judge.

S.S. ("the mother") appeals decisions of the Mobile Juvenile Court ("the juvenile court") finding R.D., Jr. ("the child"), to be dependent and awarding his custody to R.D. ("the alleged paternal grandmother").

Background

The child was born on November 4, 2011. At that time, the mother was married to L.G. ("the presumed father"), whose paternity was therefore presumed by law pursuant to § 26-17-204(a)(1), Ala. Code 1975. The record indicates that the presumed father has persisted in his paternity of the child, but it also contains assertions that the child's biological father is the alleged paternal grandmother's son, R.D., Sr. ("the alleged father"), for whom the child is named.

On May 7, 2012, the alleged paternal grandmother filed a sworn pro se petition in the juvenile court, in which she averred that the child was dependent and requested an award of his custody ("the dependency action"); that action was assigned case no. JU-12-733.01. The record contains an affidavit of substantial hardship that appears to have been completed by the alleged paternal grandmother in which she requested that the juvenile court appoint an attorney to represent her. Rather than doing so, the juvenile court appears only to have waived the docket fee.

The record also contains a written order of the juvenile court dated May 11, 2012, awarding the alleged paternal grandmother pendente lite custody of the child; the case-action-summary sheet of the dependency action indicates that the order was entered on June 18, 2012. The presumed father later filed a motion to dismiss the dependency action, explaining that he persisted in his paternity of the child. The juvenile court entered an order, which denied the presumed father's motion but also specifically acknowledged the presumption of his paternity, thereby advising "all parties ... so that proper pleadings may be filed and appropriate burden of proof observed."

On October 15, 2014, the mother filed a sworn pro se petition in the juvenile court requesting an award of visitation with the child, which action was given a separate case designator from the dependency action ("the mother's action"); that action was assigned case no. JU-12-733.02. The record contains several orders with captions that collectively reference the dependency action, the mother's action, and several other actions regarding some of the mother's other children. Although, as is mentioned later in this opinion, the juvenile court appears to have tried all the actions on the same day and the issues raised by the dependency action and the mother's action in the same hearing, the record contains no order consolidating any of the actions, and therefore they appear to have remained separate. See Committee Comments on 1973 Adoption of Rule 42, Ala. R. Civ. P. (noting that " Rule 42(a) speaks both of joint hearings or trials and of consolidation" (emphasis added) ). The actions regarding the mother's other children are not relevant to this appeal.

On February 3, 2015, the alleged father filed a motion in the dependency action asking the juvenile court to order that genetic testing be conducted to establish his paternity of the child. The exact manner in which the alleged father became a party to the dependency action is not disclosed in the record, but it does not appear that either the mother or the alleged paternal grandmother objected to his inclusion as a party. That same day, the juvenile court entered an order stating that the alleged father's motion would be considered at trial. On February 5, 2015, however, the juvenile court entered an order in both the dependency action and the mother's action requiring that genetic testing be done to determine the alleged father's paternity of the child and specifying, in relevant part, the mother's pendente lite visitation with the child.

On May 28, 2015, the mother filed a motion in the dependency action asking the juvenile court to hold the alleged paternal grandmother in contempt for, she said, failing to comply with the pendente lite visitation provisions of its February 5, 2015, order. On July 1, 2015, the juvenile court entered an order in the dependency action stating that the mother's contempt motion would "be addressed at the trial." The mother later filed in the dependency action a motion asking the juvenile court to order that the alleged father be tested for illegal drug use, which the juvenile court denied.

On August 18, 2015, the juvenile court conducted a trial at which, among other witnesses, the mother, the alleged paternal grandmother, the presumed father, and the alleged father testified; each of them, except the alleged paternal grandmother, was represented by counsel. At the beginning of the trial, the mother's attorney orally clarified that the mother was actually seeking an award of the child's custody, as opposed to only visitation with the child. The alleged paternal grandmother did not object to the mother's request. The mother's request for custody of the child was therefore tried by the implied consent of the parties. See Rule 15(b), Ala. R. Civ. P.;

Edwards v. Edwards, 79 So.3d 629, 632-33 (Ala. Civ. App. 2010).

Also at the beginning of the trial, the alleged father's attorney explained that, due to a delay in communication, the genetic testing that had been ordered by the juvenile court to establish the alleged father's paternity of the child had not yet been conducted. In response, the presumed father's attorney explained that the presumed father still persisted in his paternity of the child.

The juvenile-court judge then orally stated:

"I'll dismiss [the alleged father] as a party. He'll have to wait outside as a witness, and that's-that ends your lawyer, okay? He can always file a motion to reconsider, and we can do something else if somebody can find some law that changes what[,] to my understanding[,] is still the Alabama law is that[,] if you're married, then the father-the husband is the presumed father, and he trumps all other rights. So I'll today dismiss as to [the alleged father]."

At the close of the trial, the juvenile-court judge stated: "Okay. I find the child to be dependent. Custody to the [alleged paternal grandmother]." The juvenile court also stated: "Based on the testimony of the mother and [the evidence that the presumed father] is the legal father, I can partially impute minimum wage to both of them so I'm going to order both-both to pay $246 a month [as] child support."

The juvenile court then explained that it would reserve ruling on the issue of the mother's visitation with the child until after considering the evidence presented in the actions regarding the mother's other children. After a brief recess, however, the juvenile court indicated that an agreement had been reached regarding the mother's visitation with the child. The child's guardian ad litem then orally set out a visitation schedule. The alleged paternal grandmother was not present during that portion of the proceedings. The juvenile-court judge did not make any statement indicating that it had decided the mother's May 28, 2015, contempt motion.

The case-action summaries of both the dependency action and the mother's action indicate that no additional activity occurred in either action until November 4, 2016, at which time an entry was made in the dependency action indicating that that action had been "disposed" on May 11, 2012, which was, as previously noted, actually the day on which the juvenile court had rendered a written order awarding the alleged paternal grandmother pendente lite custody of the child. On May 12, 2017, or approximately 21 months after the August 18, 2015, trial, the juvenile court rendered two written orders in both the dependency action and the mother's action. The first order provides, in relevant part:

"The case of [the child], comes before the Court for determination of custody[,] (.01)[,] and for visitation, (.02). [The alleged father] was present in court and was represented by [an] appointed attorney ....
"The Court finds the child to be dependent and that the mother and father are unable to discharge their responsibilities to and for the child. The Court finds that it is in the best interests of the child that custody of the child shall be awarded to [the alleged paternal grandmother].
"It is ORDERED, ADJUDGED, and DECREED by the Court that legal custody of [the child] is awarded to [the alleged paternal grandmother]. As legal custodian of said child, [the alleged paternal grandmother] is authorized by this Court to seek and consent to medical treatment, emergency or otherwise, to provide for the needs of the child, upon condition that said medical treatment be rendered by licensed practicing physicians or nurses, and to enroll said child in any and all schools. [The alleged paternal grandmother] is further authorized by this Court to permit said child to travel and visit outside Mobile County and the state of Alabama.
"The Court awards no visitation at this time."

In its first order, the juvenile court also awarded attorneys' fees to the child's guardian ad litem, the alleged father's appointed counsel, the mother's appointed counsel, and the presumed father's appointed counsel.

The juvenile court's second written order was, in its entirety, a verbatim reproduction of the paragraph quoted above regarding the alleged paternal grandmother's award of legal custody and the rights it entailed. The juvenile court's orders were entered in each action on May 16, 2017. Because each order was entered in each action and because the entirety of the second order was included within the first order, we will hereinafter refer to the orders collectively as one judgment that was entered in each action on May 16, 2017.

On May 30, 2017, the mother filed a postjudgment motion in each action in which she requested a new trial because, she said, the child was no longer dependent. The juvenile court did not enter an order in the mother's action regarding the postjudgment motion that she filed in that action. In the dependency action, however, the juvenile court entered an order on June 29, 2017, purporting to set a hearing regarding the mother's postjudgment motion for July 5, 2017. The case-action summary of the dependency action also contains an entry for July 5, 2017, indicating that the juvenile court entered an order that day, presumably addressing the mother's postjudgment motion, but the record does not contain that order. Notwithstanding the entry of the juvenile court's June 29, 2017, and July 5, 2017, orders, however, the mother's postjudgment motions were denied by operation of law on June 13, 2017. See Rule 1(B), Ala. R. Juv. P. The mother filed a notice of appeal in each action on June 14, 2017, and we consolidated the appeals ex mero motu; the appeal from the judgment entered in the dependency action was assigned appeal no. 2160729, and the appeal from the judgment entered in the mother's action was assigned appeal no. 2160730.

Upon initial review, many aspects of these appeals remained unclear. We therefore issued an order on December 28, 2017, requiring that the parties submit letter briefs regarding certain issues. The parties complied with our order and provided additional arguments regarding the issues noted.

Analysis

On appeal, the mother argues that "[t]he child was not dependent at the time of the trial [and that t]he [juvenile] court violated the mother's due process rights in not allowing her to prove the child was not dependent at the time of the final judgment." In other words, the mother argues both that the evidence presented at trial was insufficient to support a finding of dependency and that the juvenile court erred by waiting approximately 21 months to enter a judgment in the dependency action and the mother's action. The alleged paternal grandmother appears pro se on appeal, asserting that she cannot afford an attorney and that the juvenile court denied her requests for appointed counsel. In response to the mother's arguments, the alleged paternal grandmother essentially argues that sufficient evidence existed to support the juvenile court's dependency finding. We consider the mother's argument regarding the juvenile court's 21-month delay first.

In support of her argument, the mother cites D.D.P. v. D.M.B., 173 So.3d 1 (Ala. Civ. App. 2015), a case in which this court held that, when a juvenile court bifurcates the adjudicatory and dispositional determinations of a dependency action, the juvenile court must consider whether the child is dependent not only at the time of the adjudicatory determination but also again at the time of the dispositional determination. Id. at 3-4. There is no indication that the juvenile court in this case intended to bifurcate the adjudicatory and dispositional aspects of the dependency action. Instead, it appears that the juvenile court simply delayed entry of a judgment for approximately 21 months after the conclusion of the trial.

In her letter brief, the mother also cites J.B. v. Jefferson County Department of Human Resources, 252 So.3d 674 (Ala. Civ. App. 2017), in support of her argument. In J.B., we held that a dependency determination that had been entered by a juvenile court in March 2017 could not have been properly based on that mother's June 2016 stipulation to the child's dependency, and we reversed the judgment and remanded the cause "for an evidentiary hearing regarding the issue whether the child remains dependent under Alabama law and, if so, for an appropriate custodial disposition." Id. at 676. J.B. is distinguishable from these appeals, however, in part because the parties in J.B. had agreed on appeal that the juvenile court had committed reversible error, which the parties to these appeals have not done. Id. at 676.

In C.P.M. v. Shelby County Department of Human Resources, 185 So.3d 461, 466 (Ala. Civ. App. 2015), this court considered an 11-month delay "between the end of testimony and the entry of the judgment" in the context of a termination-of-parental-rights action. After commenting that specific time constraints are placed on such actions by our statutory law and the Alabama Rules of Juvenile Procedure, this court also noted that the juvenile court's judgment in that case "could not have been based on [the father's] current circumstances," and we reversed the judgment and remanded the cause for further proceedings. Id. at 468.

Based on the reasoning of C.P.M. and the rationale supporting D.D.P. and J.B., the mother's argument that a finding of dependency must be based on the circumstances existing at the time of the determination has merit. In other words, the juvenile court's May 16, 2017, determination regarding the child's dependency could not have been properly based on the evidence presented at trial because approximately 21 months had passed since the trial. We therefore reverse the juvenile court's judgment in the mother's action, and we remand the cause for a full evidentiary hearing regarding the mother's request for custody, which will presumably involve an examination of whether the child remains dependent. In light of the foregoing, we pretermit the mother's other argument that insufficient evidence was presented at trial to support the dependency determination set out in the May 16, 2017, judgment that the juvenile court entered in the mother's action. See Favorite Mkt. Store v. Waldrop, 924 So.2d 719, 723 (Ala. Civ. App. 2005).

We cannot consider the mother's arguments as they relate to the May 16, 2017, judgment that the juvenile court entered in the dependency action, however, because that judgment was not final. As noted above, the mother filed a motion in the dependency action on May 28, 2015, asking the juvenile court to hold the alleged paternal grandmother in contempt for failing to comply with the pendente lite visitation provisions of its February 5, 2015, order.

"Although neither party has raised the issue of this court's jurisdiction to entertain this appeal, this court must first determine whether it has jurisdiction over this appeal. 'Jurisdictional matters are of such importance that a court may take notice of them ex mero motu.' McMurphy v. East Bay Clothiers, 892 So.2d 395, 397 (Ala. Civ. App. 2004). 'An appeal ordinarily will lie only from a final judgment-i.e., one that conclusively determines the issues before the court and ascertains and declares the rights of the parties involved.' Bean v. Craig, 557 So.2d 1249, 1253 (Ala. 1990). '[T]he question whether a judgment is final is a jurisdictional question.' Johnson v. Johnson, 835 So.2d 1032, 1034 (Ala. Civ. App. 2002), overruled on other grounds, Eustace v. Browning, 30 So.3d 445 (Ala. Civ. App. 2009). The pendency of an unadjudicated contempt motion alleging a party's failure to obey orders entered during the progress of the litigation renders a judgment nonfinal. See Decker v. Decker, 984 So.2d 1216 (Ala. Civ. App. 2007) ; Heaston v. Nabors, 889 So.2d 588 (Ala. Civ. App. 2004)."

A.C. v. C.C., 34 So.3d 1281, 1286-87 (Ala. Civ. App. 2009) (emphasis added).

In her letter brief, the mother argues that the juvenile court's May 16, 2017, judgment entered in the dependency action was final because, she says, the portion of the judgment denying her request for visitation constituted an implicit denial of her May 28, 2015, contempt motion, citing as support Faellaci v. Faellaci, 67 So.3d 923 (Ala. Civ. App. 2011). In Faellaci, we held that a circuit court's judgment requiring a husband to pay only a child-support arrearage had implicitly denied the wife's petition for a rule nisi at least in part because "[t]he trial-court judge [in that case had indicated] that his award of a child-support arrearage to the wife was intended as a ruling on her petition for a rule nisi." Id. at 925. In so doing, we explained:

"We conclude that such an expression, followed by an order that did not specifically hold the husband in contempt, satisfies this court, in these particular circumstances, that the trial court implicitly concluded that the husband's behavior did not rise to the level of contempt in this case. Although an explicit ruling on pending contempt petitions is always more desirable, we find that the trial court's judgment sufficiently indicates an intention to conclusively rule on the wife's pending petition for a rule nisi."

Id.

The record in these appeals contains no such expression. At trial, the following exchange occurred between the mother and her attorney during direct examination:

"Q: Isn't it true that the only time you've been able to see [the child] regularly was after this Court entered an order and giving you some visitation?
"A: Yes ma'am.
"Q: And she did not always allow you to see him even then, did she?
"A: No, ma'am."

Thus, it does not appear that the mother abandoned her request that the juvenile court hold the alleged paternal grandmother in contempt for violating the pendente lite visitation provisions of its February 5, 2015, order. Cf. Harley v. Anderson, 167 So.3d 355, 360 n.5 (Ala. Civ. App. 2014) (citing Huntsville City Bd. of Educ. v. Frasier, 122 So.3d 193, 201 n.16 (Ala. Civ. App. 2013), and Hooks v. State, 21 So.3d 772 (Ala. Crim. App. 2008), for the proposition that "a party abandons a claim by failing to present evidence at trial in support of the claim").

As already noted, the juvenile court did not explicitly rule on the mother's pending contempt motion, and the record contains no expression demonstrating its intent to do so. Moreover, we do not agree that the juvenile court's decision to deny the mother prospective visitation in its May 16, 2017, judgment necessarily constitutes an implicit determination that the alleged paternal grandmother had not contumaciously violated the pendente lite visitation provisions of its February 5, 2015, order while the dependency action was pending. The juvenile court does not appear to have resolved that claim, and the May 16, 2017, judgment that it entered in the dependency action was therefore not final.

Additionally, as noted above, the alleged father filed a motion in the dependency action on February 3, 2015, asking the juvenile court to order that genetic testing be conducted to establish his paternity of the child. At the beginning of the trial, the juvenile court orally "dismiss[ed the alleged father] as a party," but it entered no written order to that effect. Furthermore, at the close of the trial, the juvenile court orally ruled that the presumed father was the child's father and determined his child-support obligation but, again, entered no written order deciding those questions. In the May 16, 2017, judgment that the juvenile court entered in the dependency action, however, the juvenile court mentions the alleged father by name in the first paragraph of the judgment. In the final paragraph of the judgment, the juvenile court also awards an attorney fee to the presumed father's appointed attorney, mentioning the presumed father by name.

In its judgment, the juvenile court makes no express determination regarding paternity. Moreover, in light of the juvenile court's reference to both the alleged father and the presumed father in its judgment and in its oral determinations at the beginning and end of the trial, which were presumably based on § 26-17-607(a), Ala. Code 1975, and our decisions in cases like L.R.B. v. Talladega County Department of Human Resources, 223 So.3d 923 (Ala. Civ. App. 2016), we conclude that the juvenile court's judgment is sufficiently ambiguous so as not to constitute an implicit adjudication of paternity. Cf. B.H. ex rel. E.D.E. v. R.E., 988 So.2d 565, 568 (Ala. Civ. App. 2008) (concluding that a juvenile court's judgment had implicitly adjudicated paternity when, among other things, it had awarded an alleged father custody of the child in question). Thus, the juvenile court does not appear to have resolved the alleged father's request for an adjudication of paternity, and the May 16, 2017, judgment that it entered in the dependency action is not final for that reason as well.

In conclusion, we reverse the May 16, 2017, judgment entered by the juvenile court in the mother's action because its decision not to award the mother custody of the child based on the child's dependency was based on the evidence that was presented at a trial occurring approximately 21 months before entry of the judgment and could not have therefore been based on current circumstances. See C.P.M., 185 So.3d at 468. Thus, we remand that action for a full evidentiary hearing regarding the mother's request for custody of the child. Because a final judgment has not been entered in the dependency action, we cannot consider the mother's appeal from the juvenile court's May 16, 2017, judgment entered in that action, and we therefore dismiss that appeal. See A.C. v. C.C., 34 So.3d at 1287.

2160729-APPEAL DISMISSED.

2160730-REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      It is unclear why the juvenile court did not appoint an attorney to represent the alleged paternal grandmother, but we note that doing so was within its discretion. See § 12-15-305(a), Ala. Code 1975 (providing the following regarding dependency actions: "Upon request and a finding of indigency, the juvenile court may appoint an attorney to represent the petitioner and may order recoupment of the fees of the attorney to be paid to the State of Alabama." (emphasis added) ).

      We note that, insofar as the juvenile court's July 5, 2017, order presumably purported to rule on the mother's postjudgment motion, that order was void. See Ex parte Limerick, 66 So.3d 755, 757 (Ala. 2011) ("If a [postjudgment] motion is ... denied by operation of law, 'the trial judge then loses jurisdiction to rule on the motion' and is 'without jurisdiction to enter any further order in [the] case after that date.' Ex parte Davidson, 782 So.2d 237, 241 (Ala. 2000). Any order entered after the trial court loses jurisdiction is void. Id.'').

      See note 1, supra.


author: THOMPSON, Presiding Judge.

text:
    C.N.M. v. J.D.D.
    2160863
    Court of Civil Appeals of Alabama.
    February 9, 2018
    Joan-Marie Sullivan, Huntsville, for appellant.
    Meteasa L. Collins, Legal Services Alabama, Inc., for appellee.
   THOMPSON, Presiding Judge.

C.N.M. ("the mother") appeals from a July 13, 2017, judgment of the Madison Juvenile Court ("the juvenile court") finding her in contempt. In addition to sentencing the mother to five days in jail for the conduct made the basis of this action, the juvenile court also revoked the suspension of jail time imposed as a result of earlier acts of contempt the mother committed.

The record before us tends to demonstrate the following facts relevant to the issues on appeal. On February 21, 2013, the juvenile court entered a judgment ("the February 2013 judgment") adjudicating J.D.D. ("the father") the father of the mother's two children ("the children"). A copy of that judgment is included in the record on appeal. The parties reached an agreement on the issues of visitation, custody, and support, and that agreement was incorporated into the February 2013 judgment. Pursuant to that agreement, the parties had "joint care, custody and control" of the children. The judgment stated that the mother "shall be the primary custodial parent" and that the father "shall be the secondary custodial parent." The father was awarded standard visitation rights, which, the judgment stated, was to be considered "a minimum" amount of visitation.

Although we cannot discern the specific date from the record, a few years after the February 2013 judgment was entered the father filed an action in the juvenile court alleging that the mother was not allowing him to exercise his visitation rights. On December 1, 2016, after a hearing on the father's allegations, the juvenile court entered an order of contempt. Although the December 1, 2016, order is not included in the record on appeal, in the proceedings below, the juvenile-court judge noted from the bench that no one had provided him with a copy of the December 1, 2016, order but that he had had it copied from the court record. The July 13, 2017, judgment from which the mother now appeals indicates that, in the December 1, 2016, order, the juvenile court found the mother's actions "to be 'willful, blatant, contemptuous' " and that " 'beyond a reasonable doubt' [she] had violated the terms of the this Court's order of February 21, 2013, in that the mother refused to allow the father ... to exercise his rights of holiday visitation with the parties' minor children." In the December 1, 2016, order, the juvenile court noted in the July 13, 2017, judgment from which the mother now appeals, the mother was found to have committed at least 21 separate acts of criminal contempt. She was sentenced to 5 days in jail for each of the 21 acts. The sentences were to run consecutively for a total of 105 days in jail. The juvenile court stated that the December 1, 2016, order suspended the sentences for two years on the condition that the mother comply "fully, completely, and faithfully" with the juvenile court's orders.

In addition to setting conditions for the jail sentences, the juvenile court wrote in the July 13, 2017, judgment appealed from in the instant appeal, the December 1, 2016, order also directed the mother to allow the father to have "make-up visitation." Specifically, the December 1, 2016, order directed that the father was to have visitation during the 2016 Thanksgiving holiday and during spring break 2017. The December 1, 2016, order reserved ruling on all additional pending matters for a hearing later that month.

On December 19, 2016, after the hearing, a judgment was entered denying the father's request for custody of the children, saying that he had failed to present sufficient evidence to meet the standard set forth in Ex parte McLendon, 455 So.2d 863 (Ala. 1984). However, the juvenile court continued, there was sufficient evidence presented to warrant a modification of the father's child-support obligation and to modify each party's authority for the ultimate responsibility over certain designated aspects of the children's upbringing, such as education, religion, and athletics. The December 19, 2016, judgment also limited the contact the children could have with the mother's boyfriend, among other things not relevant to this appeal. The December 19, 2016, judgment further specified that the father's visitation rights would be those specified in the "Court's Custodial Schedule," attached as an exhibit to that judgment. That schedule is what is also known as a standard visitation schedule. The schedule provided that the father was to have visitation with the children during spring break in even-numbered years and that the mother was to have custody of the children during spring break in odd-numbered years. The December 19, 2016, judgment also specified that "all other provisions of this Court's previous order and contempt order entered on November 10, 2016 [actually entered on December 1, 2016], not specifically modified herein, remain in full force and effect."

On March 16, 2017, the father filed a rule nisi petition asking the mother to show cause why she should not be held in contempt for refusing to allow the father to exercise his spring-break visitation in 2017 as ordered in the December 1, 2016, order. The father also sought a modification of custody and child support. In turn, the mother filed a rule nisi petition regarding a conflict over the children's health insurance. She also sought to have the father's visitation schedule modified and his child-support obligation recalculated.

A guardian ad litem was appointed for the children. An evidentiary hearing was held on July 7, 2017. Evidence regarding the mother's alleged contempt tended to show the following. There is no question that the father exercised his Thanksgiving 2016 visitation. Furthermore, the mother does not dispute that she did not allow the father to exercise visitation during spring break 2017. The father testified that he contacted the mother about exercising his "make-up" visitation with the children during spring break 2017. The mother responded that he would not have the children until spring break 2018. In a text message, the mother told the father that, "being this is 2017, an odd year, makes it my year to have the [children]. You being the noncustodial parent makes you have spring break on even years. So I will have them this year." The father responded by telling the mother that there should be no confusion as to this matter and for her to "read your order." The father testified that the mother persisted in saying that he would not have visitation with the children during spring break 2017.

The mother testified that she understood that the December 1, 2016, order finding her in contempt had awarded the father "make-up time" for visitation. She said that those times were Thanksgiving 2016 and spring break 2017. In explaining why she did not allow the father to exercise the spring-break make-up visitation, the mother testified that the December 19, 2016, judgment, to which the court's standard visitation order was attached, "took away" the make-up visitation. She said: "From my reading of the [December 19, 2016,] order it stated that he would have [the children] spring break of 2018, and from my understanding I was supposed to follow the final [December 19, 2016,] order."

The juvenile court questioned the mother at length about her decision not to allow the father to exercise his make-up visitation during spring break 2017. The juvenile court asked the mother whether she had looked at the December 1, 2016, order after the father had told her he was going to exercise his make-up visitation during spring break 2017. The mother said that she had not done so. The mother also testified that, on the Friday when spring break began, she picked up the children from school before the father could arrive at the school to pick them up. The mother said that the children stayed with her for a few days and then went to New Orleans with their grandfather during their spring break. The juvenile court also clarified with the mother that she had sent the children off with another relative, and without her, during that spring break rather than allow the father to exercise his court-ordered make-up visitation. In a discussion held on the record with the mother's attorney, the mother's attorney acknowledged that nowhere in the December 19, 2016, judgment was the father's make-up visitation canceled and that, in fact, it contained a provision stating that provisions in the December 1, 2016, order "not specifically modified herein remain in full force and effect."

On July 13, 2017, the juvenile court entered a judgment that, among other things, found that the mother had "willfully, blatantly, and contemptuously gone beyond the direction of the Court's orders, which were clearly set out and were not confusing." The juvenile court also found that the mother did not seek legal advice regarding the make-up visitation and, instead, "proceeded on her own" to deny the father the make-up visitation ordered for spring break 2017. Accordingly, the juvenile court held the mother in contempt. The juvenile court imposed an additional 5 days to the mother's previous sentences for contempt, for a total of 110 days in jail, and implemented the suspended sentences. The mother was ordered to serve her sentences over the weekends.

In her brief on appeal, the mother argues that the juvenile court erred in finding her in contempt for not allowing the father to exercise the make-up visitation ordered in the December 1, 2016, order. Specifically, the mother contends that the visitation schedule set out in the December 19, 2016, judgment made the December 1, 2016, order awarding the father make-up visitation "ambiguous due to the conflicting provisions regarding visitation."

We note that neither the parties nor the juvenile court distinguish between civil contempt and criminal contempt. In Pate v. Guy, 934 So.2d 1070, 1072 (Ala. Civ. App. 2005), this court discussed the difference between civil contempt and criminal contempt, writing:

"In general, civil contempt seeks to compel compliance with a juvenile court's judgment or order, while criminal contempt imposes punishment for failure to obey a judgment or order of the court.
Rule 70A, Ala. R. Civ. P.; see also State v. Thomas, 550 So.2d 1067, 1072 (Ala. 1989). An essential element of a finding of criminal contempt is that such a finding is intended to punish the contemnor, while a finding of civil contempt seeks to compel future compliance with court orders. See generally Chestang v. Chestang, 769 So.2d 294 (Ala. 2000). Sanctions for criminal contempt are limited by statute to a maximum fine of $100 and imprisonment not to exceed five days. See Ala. Code 1975, § 12-11-30(5). On the other hand, sanctions for civil contempt may exceed those limits and may continue indefinitely until the contemnor performs as ordered.
"... In Chestang v. Chestang, supra, our Supreme Court reviewed the provisions of Rule 70(A), Ala. R. Civ. P., the rule that governs contempt in civil cases. The Supreme Court noted that Rule 70A(a)(2)(C) defines two types of criminal contempt: (1) misconduct that obstructs the administration of justice and (2) willful disobedience or resistance to a court order or judgment ' "where the dominant purpose of the finding of contempt is to punish the contemnor." ' Chestang, 769 So.2d at 297-98."

In Davenport v. Hood, 814 So.2d 268 (Ala. Civ. App. 2000), this court explained that

" '[t]he question of whether [an action involves] civil contempt or criminal contempt becomes important ... because a contemnor must be in a position to purge himself from the contempt. Mims v. Mims, 472 So.2d 1063 (Ala. Civ. App. 1985). In order to purge himself in a criminal contempt case, the contemnor must pay the fine imposed, serve the authorized time, or do both. Kalupa v. Kalupa, 527 So.2d 1313 (Ala. Civ. App. 1988). In order to purge himself in a civil contempt case, the contemnor must comply with the court's order. Rule 33.4(b), A[la]. R. Crim. P.' "

814 So.2d at 272-73 (quoting Hill v. Hill, 637 So.2d 1368, 1370 (Ala. Civ. App. 1994) ).

" ' "Absent an abuse of discretion, or unless the judgment of the juvenile court is unsupported by the evidence so as to be plainly and palpably wrong, the determination of whether a party is in contempt is within the sound discretion of the juvenile court." Shonkwiler v. Kriska, 780 So.2d 703, 706 (Ala. Civ. App. 2000) (citing Shellhouse v. Bentley, 690 So.2d 401 (Ala. Civ. App. 1997) ).'
" Carnes v. Carnes, 82 So.3d 704, 715 (Ala. Civ. App. 2011)."

Young v. Corrigan, 253 So. 3d 373, 380 (Ala. Civ. App. 2017).

Although the December 1, 2016, order was not included in the record on appeal, the parties and the juvenile court do not dispute that that order provided that, because of the mother's refusal to allow the father to exercise visitation and her 21 separate acts of contempt, the father was to have make-up visitation with the children during spring break 2017. Nonetheless, according to the mother's own testimony, she refused to allow the father to exercise that visitation, even after the father pointed out to her that the December 1, 2016, order specifically ordered her to allow him to visit with the children at that time. After refusing the father the right to visit with the children during spring break 2017, the mother allowed the children to visit New Orleans with their grandfather rather than spend the vacation time with them herself.

The mother's contention that the court-ordered make-up visitation was ambiguous in light of the schedule attached to the December 19, 2016, judgment is spurious.

We note that, pursuant to the February 2013 judgment, the father was regularly scheduled to have visitation with the children over spring break in even-numbered years, for example 2016 and 2018. Thus, the father's scheduled spring-break visitation was the same under both the February 2013 judgment and the December 19, 2016, judgment. The mother's refusal to allow the father to exercise visitation during spring break 2017, telling him he had to wait until 2018, meant that the father would not receive visitation in addition to his regularly scheduled visitation. In other words, the mother's refusal deprived the father of his court-ordered make-up visitation. The mother admitted to the juvenile court that she did not refer to the December 1, 2016, order when she told the father he could not visit the children during spring break 2017. Finally, this court cannot review the December 1, 2016, order for internal ambiguity because that order is not included in the record on appeal. "An error asserted on appeal must be affirmatively demonstrated by the record, and if the record does not disclose the facts upon which the asserted error is based, such error may not be considered on appeal." Martin v. Martin, 656 So.2d 846, 848 (Ala. Civ. App. 1995). As the party claiming error, the mother carried the burden of ensuring that the record on appeal disclosed the facts upon which the alleged error was based. Perkins v. Perkins, 465 So.2d 414 (Ala. Civ. App. 1984).

Based on the record before us, we conclude that sufficient evidence supports the juvenile court's judgment finding that the mother wilfully, blatantly, and contemptuously refused to abide by the December 1, 2016, order and implementing her previous jail sentences. The July 13, 2017, judgment of contempt is not plainly and palpably wrong. Young, 253 So. 3d at 380

The mother also contends that the juvenile court erred in including in the July 13, 2017, judgment a warning that the mother "is afforded one more opportunity to demonstrate that she can abide by Court's Orders. Therefore, the court will not change custody at this time but is putting her on notice that her failure to abide by Court's Orders will result in her losing custody of the minor children." Because the juvenile court declined to modify custody based on current circumstances, there is no adverse ruling in this provision from which the mother can appeal. See Mobile Fuel Shipping, Inc. v. Scott, 375 So.2d 796, 797 (Ala. Civ. App. 1979) ("It is well settled that only an adverse ruling of the juvenile court is subject to an assignment of error and, consequently, reviewable on appeal."). The language of which the mother complains is an admonishment to the mother that the juvenile court will not tolerate future acts of interference with the father's court-ordered visitation with the children. The mother has cited no authority, and this court's research has revealed no authority, for the proposition that a juvenile court cannot include in its judgment language indicating that, if the mother persists in her contemptuous conduct, she risks losing custody of her children.

The mother has failed to demonstrate that the juvenile court erred or abused its discretion in finding her in contempt and ordering her to serve jail time, including that which previously had been suspended. Accordingly, the judgment is affirmed.

AFFIRMED.

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

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

      We read the February 2013 judgment to mean that the mother was awarded sole physical custody subject to the father's visitation. See § 30-3-151, Ala. Code 1975.

      The juvenile court executed the December 1, 2016, order on November 10, 2016, but that order was not entered until December 1, 2016.

      The exhibit also contained "parenting clauses" regarding telephone access with the children, the exchange of addresses, access to school information, fostering respect for the other parent, and a number of similar provisions.