author: PITTMAN, Judge.

text:
    Colleen HOAG v. David STINSON
    2170168
    Court of Civil Appeals of Alabama.
    August 3, 2018
    Nicholas A. Jones of Jones, Hawkins & Associates, LLC, Montgomery, for appellant.
    James D. Fancher, Clanton, for appellee.
   PITTMAN, Judge.

Colleen Hoag ("the mother") appeals from a judgment of the Elmore Circuit Court modifying a previous judgment of that court as to visitation. We affirm.

The mother and David Stinson ("the father") were married in Michigan in 1990, and four children were born of their marriage: two daughters born in February 1997 and August 1999, respectively, and two sons born in July 2007 and January 2010, respectively. After relocating to Alabama, the parties separated, and the trial court entered a judgment divorcing them in June 2011 in case number DR-11-11.00. The divorce judgment, among other things, awarded the parties joint custody of the children (with physical placement alternating between the father's home and the mother's home each week) and contained the relocation-notification provisions required under the Alabama Parent-Child Relationship Protection Act ("APCRPA"), Ala. Code 1975, § 30-3-160 et seq. ; in addition, the judgment provided that the mother was to pay certain health-related and extracurricular expenses of the children.

The record reveals that the mother relocated to Michigan in October 2013 (without providing notice to the father as required under the APCRPA) in order to obtain substance-abuse counseling in an environment nearer her family; the father then brought an action (case number DR-11-11.01) in which he sought, and ultimately obtained, a modification of the divorce judgment awarding him sole legal and sole physical custody of the children ("the 2015 modification judgment"). In the 2015 modification judgment, the trial court suspended the mother's visitation with the children and stated that future visitation should take place "in a safe environment, supervised by a responsible adult of [the father's] choosing." Soon after the 2015 modification judgment had been entered, the mother petitioned for a change in custody (case number DR-11-11.03); although the pleadings and other papers filed in that action are not in the record, it is undisputed that that petition was denied, with the trial court's entering a summary judgment in the father's favor on the basis that the mother had not met the custodial-modification standard set forth in Ex parte McLendon, 455 So.2d 863 (Ala. 1984), solely by relying upon her own sobriety and the father's armed-service deployment as grounds.

In December 2015, the mother filed another modification petition (case number DR-11-11.04); however, in that petition, the mother sought only a change in the visitation provisions in the 2015 modification judgment so as to award her "standard visitation." Among the material changes in circumstances alleged by the mother in that petition were (a) her acquisition of employment, (b) her having sustained a period of sobriety of over a year, (c) her commitment to substance-abuse monitoring as a component of her employment, and (d) her proximity to supportive family members. The father answered the petition and denied that a change in the mother's visitation rights would be appropriate; he also filed a separate action (case number CV-11-11.05) seeking a finding of contempt against the mother as to certain payments she had allegedly failed to make as required under the divorce judgment. The mother's visitation action and the father's contempt action were consolidated by the trial court, after which the mother amended her petition to seek a recalculation of child support because of the emancipation of the parties' older daughter as well as "an increase" in visitation with the remaining minor children.

After the cases had been heard on various preliminary matters and had been reassigned to another circuit judge, the mother moved for the setting of a final hearing and for the entry of a pendente lite order. The trial court entered a pendente lite order granting the mother certain 2-, 3-, and 4-day visitation periods during October, November, and December 2016 and March 2017, which visitation was to occur "within the State of Alabama" at a location "no more than 30 minutes from" the workplace of the oldest remaining minor child. The mother then filed a second amended petition seeking the removal of her obligation to pay for the minor children's health and extracurricular expenses; however, that amendment was struck by the trial court, on the father's motion, as untimely under Rule 15(a), Ala. R. Civ. P.

The visitation and contempt actions were tried in February 2017, with the father, the mother, and the mother's current husband testifying. In April 2017, the trial court entered an order granting the father's contempt petition and directing the parties' counsel to submit an agreed statement of expenses and a statement of the mother's support arrearages. That order also stated, as to the visitation issue, that the mother, at her expense, would be entitled to supervised visitation with the minor children one full week in June, one full week in July, and one academic-break week (alternating between spring and fall) each year. Finally, as to visitation, the trial court's April 2017 order stated that its terms were intended only to clarify its previous judgments and "do not reflect that [the] mother has met the McLendon standard in a manner that warrants modification of the Court's" previous judgment.

In May 2017, the father filed a motion to require the mother to pay particular sums certain based upon the evidence presented at trial and to pay the father's attorney's fees; the mother filed a motion requesting that the trial court delete all references to supervised visitation and generally asserting that the father held too much power over her visitation. The trial court thereafter entered a final judgment in September 2017 that, as to the father's contempt action, found in his favor, awarding him $3,768.84 plus interest for unpaid health and extracurricular expenses incurred after 2015, $8,961 plus interest for unpaid accrued child support through October 2016, $1,253.56 plus interest for unpaid accrued child support from November 2016, and $3,000 as an attorney's fee; it also determined that the mother should pay $909.66 per month as prospective child support. As to the mother's visitation action, the trial court expressly determined that "the McLendon standard applies to a modification of custody and/or visitation in this action, which [the mother] has failed to meet"; that the mother had asserted only her claim of continued sobriety as a basis for modification, as she had in the previous custody-modification action; and that the petition to modify visitation was "due to be denied for failing to allege and present a material change for the Court to consider since the denial of the .03 Petition." However, the trial court did make certain alterations to the April 2017 order as to visitation, stating that the mother's June and July visitation weeks should not include Father's Day weekend, "consecutive July 4 weeks," or "consecutive July 17 weeks"; deleting references to fall academic breaks; awarding the mother Thanksgiving-week visitation and spring-academic-break-week visitation in odd years and Christmas-week visitation in even years; and deleting the requirements that the mother's visitation be supervised and take place in Alabama near the younger daughter's workplace. Finally, in the final judgment, the trial court declined to require the parties to share visitation expenses or to meet in a central location for visitation exchanges.

On appeal, the mother raises three issues. The first concerns the trial court's referral to the McLendon custody-modification standard in its judgment. Although we agree with the mother that, in its entirety, the Ex parte McLendon standard governing custody modifications does not apply to mere visitation matters, see Gallant v. Gallant, 184 So.3d 387, 400 (Ala. Civ. App. 2014), the trial court's final judgment does not reflect that that court applied Ex parte McLendon in an incorrect manner.

We first turn to McLendon itself. In this court's review of the custody judgment that was before our supreme court in Ex parte McLendon, this court held that a mother who had petitioned for a modification of a judgment awarding custody of that mother's child to nonparents had had the burden "to show [1] a change in circumstances since the divorce in 1980 and [2] that the grant to her of custody was in the best interest of her child." McLendon v. McLendon, 455 So.2d 861, 863 (Ala. Civ. App.), rev'd, Ex parte McLendon, 455 So.2d 863 (Ala. 1984). Our supreme court, in reversing our affirmance of the trial court's decision to modify custody, held that this court had erred in its statement and application of the second of the two items composing the mother's burden:

"The Court of Civil Appeals, in affirming the trial court's award of custody to the mother, held that the mother had met her burden 'to show a change in circumstances since the divorce in 1980 and that the grant to her of custody was in the best interest of her child.' McLendon v. McLendon, 455 So.2d at 863. Although the best interests of the child are paramount, this is not the standard to be applied in this case. It is important that she show that the child's interests are promoted by the change, i.e., that she produce evidence to overcome the 'inherently disruptive effect caused by uprooting the child.' Wood v. Wood, 333 So.2d [826,] 828 [ (Ala. Civ. App. 1976) ]. This she has not done."

Ex parte McLendon, 455 So.2d at 866. At no point does Ex parte McLendon condemn this court for requiring proof of a change of circumstances as a threshold matter of proof; indeed, this court observed in E.F.B. v. L.S.T., 157 So.3d 917 (Ala. Civ. App. 2014), that "a child-custody judgment has res judicata effect as to the facts that were before the court at the time of the entry of that judgment" and is "final and conclusive on the parties and the interests of the child so long as the facts existing at the time of the entry of the judgment remain without material change." 157 So.3d at 923 (emphasis added).

Just as a petitioner who seeks to modify a previous custody judgment has the procedural burden to prove a material change in circumstances and the substantive burden of persuasion that a change of custody would materially promote the best interests of the child at issue such that the inherently disruptive effects of a custody change would be overcome, a petitioner who seeks a modification of a previous visitation judgment must, as the mother's brief concedes, demonstrate both a material change in circumstances and that the proposed change in visitation will serve the best interests of the child at issue. In other words, the initial procedural burden is the same as to modifications of custody and of visitation. As this court aptly stated in Y.N. v. Jefferson County Department of Human Resources, 67 So.3d 76, 85-86 (Ala. Civ. App. 2011) :

"[A] judgment denying a noncustodial parent visitation is not permanent and irrevocable because matters of visitation are never res judicata as to facts coming into existence after the entry of the judgment; rather, visitation judgments may always be modified based on a subsequent material change of circumstances and upon proof that the modification would be in the best interests of the child."

A close examination of the trial court's September 2017 judgment reflects that that court's reference in passing to McLendon was not an endorsement of its "material-promotion" burden, which has never been applied outside the context of custody-modification actions, but was a shorthand invocation of the threshold showing a party must make in any modification proceeding touching and concerning minor children: the court states in its judgment that it is denying the modification requested by the mother "for failing to allege and present a material change to the Court to consider," which is exactly what the mother was required by Y.N. to show in order to obtain the relief she had sought. We thus conclude that the mother's first argument -- that the judgment is due to be reversed based upon the trial court's reference to Ex parte McLendon-- does not demonstrate the existence of any reversible error.

Citing, among other cases, Flanagan v. Flanagan, 656 So.2d 1228 (Ala. Civ. App. 1995), the mother next argues that, under the appropriate substantive modification standard, she demonstrated a change in circumstances warranting (a) an increase in her visitation and (b) the removal of the requirement that the mother's visitation be supervised. As to the second of those points, we may safely conclude that the trial court's deletion, in its September 2017 final judgment, of the supervision requirement that had been contained in both the 2015 modification judgment and the April 2017 order has rendered the mother's argument that she is entitled to unsupervised visitation moot. As to the first point, we construe the mother's argument as complaining not that the trial court erred in awarding her particular weeks of set visitation or in deleting requirements that that visitation be exercised in Alabama, but as challenging the trial court's decision not to award "standard" visitation (as sought in her original petition) or, at the least, a greater "increase[ ]" in her visitation than that court did.

We note that Flanagan counsels deference to the decisions of trial courts in setting an appropriate visitation schedule:

"The trial court has broad discretion in deciding on visitation rights of the noncustodial parent. Wallace v. Wallace, 485 So.2d 740 (Ala. Civ. App. 1986). This discretion applies to modification proceedings as well as to the original custody proceeding. Id.'When the issue of visitation is determined after oral proceedings, the trial court's determination of the issue will not be disturbed absent an abuse of discretion or a showing that it is plainly in error.' Andrews v. Andrews, 520 So.2d 512 (Ala. Civ. App. 1987).' Dominick v. Dominick, 622 So.2d 402, 403 (Ala. Civ. App. 1993)."

656 So.2d at 1230 (emphasis added). We note that in Flanagan, as well as in all the other authorities cited by the mother in her second argument, this court declined to second-guess the visitation awarded by the trial court.

In this case, although the mother claims to have been "forced" to move back to Michigan in order to straighten out her life after the parties' divorce, the mother admitted on cross-examination at trial both that the move had been her own decision and that she had failed to notify the father of that move via certified mail in accordance with the APCRPA (see Ala. Code 1975, §§ 30-3-164 & 30-3-165(a) ). The APCRPA specifically provides that a failure to provide a required notice under the APCRPA is "a factor in determining whether custody or visitation should be modified" and "a factor in awarding increased transportation and communication expenses with the child." Ala. Code 1975, § 30-3-168(a).

Thus, although the trial court could properly deem the mother's recent record of sobriety as meriting an award of certain periods of visitation when the mother had previously had none, as well as warranting the removal of supervisional and geographic restrictions on the mother's visitation rights, the trial court was not obliged to ignore the sheer amount of physical distance that the mother had placed between herself and her children by her own actions, nor the effect that an award of greater amounts of visitation at such a great distance, much less "standard" visitation, would likely have on the children's social and academic development. Although we will not deny the economic and logistical consequences of the mother's election to move to Michigan upon her exercising her future visitation rights, and "[a]lthough we may have determined a different or more lenient schedule for the mother's visitation" had we sat as the trial court, "we have no authority to substitute our judgment for that of the trial court; and, absent abuse, there is no basis for reversal." Watson v. Watson, 634 So.2d 589, 590 (Ala. Civ. App. 1994).

The final issue raised by the mother concerns whether the father was afforded too much control over the visitation awarded so as to warrant reversal. However, much of the evidence relied upon by the mother in ostensible support of her argument pertains mainly to the father's preferences as manifested during the period that the mother's visitation rights had been suspended under the 2015 modification judgment, such as her view that he had controlled the visitation schedule up to the point of trial, that he had refused to allow the minor children to visit with the mother in Michigan, that he was concerned that an award of unsupervised visitation would harm the youngest child (who had been identified as having Asperger's syndrome, a mild form of autism-spectrum disorder), and that he would consistently reject efforts to afford the mother greater visitation time than the court allowed. However, the mother's third argument appears not to recognize the changes in the visitation provisions occurring between the entry of the April 2017 order and the entry of the September 2017 final judgment: the latter awards several set periods of visitation to the mother subject only to the mother's giving one month's notice to the father of her intent to exercise her visitation rights and deletes any reference to requirements that the visitation be exercised in Alabama. Thus, contrary to the mother's argument, the final judgment does not afford the father any further power to withhold visitation from the mother, or even to place conditions upon the visitation awarded.

Based upon the facts and authorities discussed herein, we conclude that the trial court's judgment modifying the mother's visitation rights as to the minor children is due to be affirmed. To the extent that the father asserts that the mother should be made to pay his attorney's fee based upon the alleged frivolity of her arguments on appeal, we conclude that no sanctions under Rule 38, Ala. R. App. P., are warranted.

AFFIRMED.

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

      We thus reject the mother's parenthetical contentions that her violation of the APCRPA in 2013 was immaterial and did not require the trial court to allow redirect examination of the father concerning whether the mother might or might not have committed any previous violation of that statute before the parties' divorce.

      At trial, the mother nominated Louisville, Kentucky, as a potential visitation-exchange midpoint.


source: Caselaw Access Project

author: THOMPSON, Presiding Judge.

license: Public Domain

text:
    ALABAMA MEDICAID AGENCY v. SOUTHCREST BANK et al.
    2170186
    Court of Civil Appeals of Alabama.
    August 3, 2018
    Steve Marshall, atty. gen., and Patrick Jones and Timothy A. Offord, Jr., asst. atty. gen., Alabama Medicaid Agency, for appellant.
    Charles N. Parnell III of Parnell & Parnell, P.A., Montgomery, for appellee Southcrest Bank.
    On Application for Rehearing
   THOMPSON, Presiding Judge.

This court's opinion of June 1, 2018, is withdrawn, and the following is substituted therefor.

On February 9, 2017, Southcrest Bank ("Southcrest") filed an interpleader complaint in the Chilton Circuit Court ("the trial court"). Southcrest named as defendants to the action Eugene J. Atchison, Walter C. Hayden III, in his capacity as Atchison's guardian and as conservator of Atchison's estate, and several fictitiously named parties. In its complaint, Southcrest alleged that it had recently foreclosed on its mortgages on two parcels of real property ("the property") formerly owned by Atchison. Southcrest alleged in its complaint that it believed that Atchison was, at that time, physically and mentally incapacitated and living in a nursing home. Southcrest stated that the property had been sold in a foreclosure sale on January 18, 2017, and that, after the payment of the notes secured by its mortgages and certain expenses from the proceeds of the foreclosure sale, surplus funds totaling $15,352.95 remained. Southcrest claimed that it was unsure to whom to release the extra funds from the foreclosure sale, and it sought to interplead the funds into the court and requested an award of an attorney fee for filing the action. In support of its complaint, Southcrest submitted as exhibits documents evidencing Atchison's incapacity, as well as documents evidencing the foreclosure sale. The trial court entered an order allowing the surplus funds from the foreclosure sale to be paid into the court.

Hayden answered and moved the trial court to distribute funds to him for his guardian and conservator services and to the nursing home at which Atchison resided. On June 1, 2017, Hayden amended that claim to assert that Atchison had died on April 30, 2017, and that there was no balance due the nursing home at that time. However, Hayden sought an award for additional time expended as Atchison's guardian and as conservator of Atchison's estate since the filing of his initial claim, and he stated that there existed an outstanding balance owed to Martin's Funeral Home for Atchison's funeral.

On March 16, 2017, Southcrest moved the trial court to add the Alabama Medicaid Agency ("Medicaid") as a defendant to the action. Southcrest alleged that it had recently learned that Medicaid had filed liens on each of the foreclosed parcels. The trial court entered an order adding Medicaid as a defendant. Southcrest then filed a motion again requesting an award of an attorney fee for filing the action and to be relieved of further liability.

Medicaid filed an answer and a claim asserting that it had a lien on the property in the amount of $24,902.70, which exceeded the amount of the funds deposited in the trial court. In support of its claim, Medicaid filed in the trial court documents supporting its assertion that on December 7, 2016, it had recorded liens against the property.

On June 2, 2017, the trial court entered a judgment determining that Medicaid had the right to redeem the property, that Hayden was entitled to a conservator's fee of $11,000, that $664 was to be paid to Martin's Funeral Home for the balance due for Atchison's funeral, and that Southcrest was entitled to a $750 attorney fee for filing the interpleader action. The trial court then awarded the remainder of the interpleaded funds to Medicaid. The trial court amended the judgment twice to make slight adjustments to the amounts awarded in its June 2, 2017, judgment. Medicaid filed a timely postjudgment motion, which was denied by operation of law pursuant to Rule 59.1, Ala. R. Civ. P. Medicaid timely appealed.

Initially, we note that the record indicates that the case was submitted to the trial court based on the arguments of the parties and the documents filed as exhibits to the parties' pleadings and motions asserting claims to the interpleaded funds. The trial court did not receive ore tenus evidence. Medicaid does not argue on appeal that the trial court erred in failing to conduct an evidentiary hearing, and, therefore, any such argument is waived. Boshell v. Keith, 418 So.2d 89, 92 (Ala. 1982).

On appeal, Medicaid argues that, as a matter of law, its liens against the property had priority over the claims of the other parties claiming an interest in the interpleaded funds. Medicaid does not dispute that Southcrest's claim as the holder of the mortgages on the property was superior to Medicaid's claim. Medicaid argues that it was a junior lienholder to Southcrest and that Hayden, Martin's Funeral Home, and Southcrest, to the extent it claimed an attorney fee in the interpleader action, were unsecured creditors.

Medicaid relies on Bailey Mortgage Co. v. Gobble-Fite Lumber Co., 565 So.2d 138 (Ala. 1990). In that case, our supreme court stated:

"After the foreclosure sale of the mortgaged property, if there are no other liens on the property, any surplus must be paid to the mortgagor. 55 Am. Jur. 2d Mortgages § 930 (1971). However, if there are inferior liens and there is a surplus, all encumbrances inferior to the mortgage on which the sale is based must be paid in the order of time in which they respectively became liens. 55 Am. Jur. 2d Mortgages § 931 (1971).
"If there are no surplus proceeds, the only remedy or recourse available to a junior encumbrancer is the right to redeem. The statutory right of redemption is set forth in Ala. Code 1975, § 6-5-230."

565 So.2d at 144 (emphasis added). See also Cochran v. Pate, 712 So.2d 1099, 1102 (Ala. Civ. App. 1998) (holding that, following a foreclosure action, a junior lienholder was entitled to at least a portion of the surplus funds from the foreclosure sale that remained after the initial debt to the mortgagee was satisfied).

In this case, the parties do not dispute that approximately $15,352.95 in proceeds from the foreclosure sale remained after the satisfaction of Southcrest's mortgages. Medicaid had liens on the property that, although they were inferior to Southcrest's mortgage lien, established its priority over nonlienholders to the surplus funds from the foreclosure sale. Bailey Mortgage, supra. Accordingly, we conclude that the trial court erred in awarding amounts to Hayden and Martin's Funeral Home before Medicaid's liens were satisfied.

Medicaid also contends that the trial court erred in awarding Southcrest the $750 attorney fee in the interpleader action. Normally, an award of an attorney fee from interpleaded funds is within the discretion of the trial court. Youngblood v. Bailey, 459 So.2d 855, 861 (Ala. 1984) ; see also Air Movers of Am., Inc. v. State Nat'l Bank of Alabama, 293 Ala. 312, 329, 302 So.2d 517, 533 (1974) ("[I]n interpleader suits, the court 'may' allow to one or more of the parties a reasonable sum for counsel fees payable out of the fund or property.").

However, as Medicaid points out, § 14 of the Alabama Constitution of 1901 provides that "the State of Alabama shall never be made a defendant in any court of law or equity." Moreover, " § 14 bars access to the State coffers, regardless of the amounts involved." Ex parte Bentley, 116 So.3d 201, 204 (Ala. 2012). We note that, although Medicaid did not raise this issue before the trial court, issues of sovereign immunity may be raised at any time. Alabama Dep't of Conservation & Natural Res. v. Kellar, 227 So.3d 1199, 1201 (Ala. 2017).

" ' "The wall of immunity erected by § 14 is nearly impregnable.... This immunity may not be waived .... 'This means not only that the state itself may not be sued, but that this cannot be indirectly accomplished by suing its officers or agents in their official capacity, when a result favorable to plaintiff would be directly to affect the financial status of the state treasury.' State Docks Comm'n v. Barnes, 225 Ala. 403, 405, 143 So. 581, 582 (1932) (emphasis added).' "

Alabama Dep't of Envtl. Mgmt. v. Town of Lowndesboro, 950 So.2d 1180, 1188 (Ala. Civ. App. 2005) (quoting Alabama Agric. & Mech. Univ. v. Jones, 895 So.2d 867, 872-73 (Ala. 2004), quoting in turn Patterson v. Gladwin Corp., 835 So.2d 137, 142 (Ala. 2002) ).

Medicaid is an agency of the State of Alabama. See § 22-6-7, Ala. Code 1975; Williams v. Hank's Ambulance Serv., Inc., 699 So.2d 1230, 1237 (Ala. 1997). "It is well established that state immunity under § 14 extends to state agencies." Alabama Dep't of Envtl. Mgmt. v. Town of Lowndesboro, 950 So. 2d at 1188. Reducing Medicaid's award to pay Southcrest's attorney fee would affect the State coffers. Accordingly, we must hold that the trial court erred in awarding an attorney fee to Southcrest.

APPLICATION GRANTED; OPINION OF JUNE 1, 2018, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED.

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

      The record contains no indication that, before the hearing on the merits, Martin's Funeral Home had been made a party to the action; its claim was mentioned by Hayden in his amended claim filed on June 1, 2017. The trial court added Martin's Funeral Home as a party to the action after it entered its June 2, 2017, judgment. No issue pertaining to Martin's Funeral Home's status as party to this action has been raised on appeal.


author: PER CURIAM.

text:
    Regina Moates RIGBY v. Christopher Lee RIGBY
    2170370
    Court of Civil Appeals of Alabama.
    August 3, 2018
    Judy Harrison Barganier, Montgomery, for appellant.
    W. Kendrick James, Wetumpka, for appellee.
   PER CURIAM.

Regina Moates Rigby ("the mother") appeals from a judgment of the Elmore Circuit Court ("the trial court") that, among other things, divorced her from Christopher Lee Rigby ("the father") and awarded them joint custody of the parties' four children. We affirm.

Background

The parties were married in 1998. Four children were born of their marriage: Tyler, who was born in December 2002; Brianne, who was born in July 2006; and Wyatt and Bailey, twins who were born in October 2009. In February 2016, the mother filed a complaint seeking, in relevant part, a divorce from the father, an award of "primary" physical custody of the children, and an award of child support. The father answered the mother's complaint and counterclaimed seeking, in relevant part, a divorce from the mother, an award of "primary" physical custody of the children, and an award of child support. The parties continued to live in the marital residence during the pendency of the divorce action but had separate bedrooms. The trial court conducted a trial on March 6, 2017. The relevant evidence presented revealed the following.

The mother testified that the father was a registered nurse when they met. She was a respiratory therapist. The mother said that the father later returned to school on two occasions to become a nurse practitioner and a nurse anesthetist, respectively. During cross-examination, the mother stated that she had also obtained a bachelor's degree and a master's degree in business during the marriage. She also testified, however, that she had not been employed in a position requiring those degrees.

The mother said that, during the approximately 30 months it took him to obtain his nurse-anesthetist certification, the father had not worked or provided support for the family. The mother said that the parties had used the proceeds from the sale of a house that she had owned before the parties were married to help meet living expenses during that time. The mother, who had stopped working for a period, started working as a respiratory therapist again after Brianne was born.

After the father obtained his nurse-anesthetist certification in January 2008, he began working in a group practice in Montgomery, where he was still working at the time of the trial. The mother said that she had worked only two days per month from approximately 2008 until early 2016 because Wyatt and Bailey were born prematurely and because "MRSA," which, she said, was "a resistant form of staph," was discovered in her breast. The mother testified that, despite suffering various illnesses and complications with her health, she had continued to provide for the children's care during the marriage. She answered in the affirmative when asked during direct examination whether the parties' marriage had, by agreement, been "sort of ... traditional where the wife is working less, taking more responsibility with the children, [and] the husband [is] working more, paying more expenses ...." She said that the father had preferred that arrangement and had even, at times, expressed his desire for her to stop working altogether. The mother described the father's work schedule before the divorce action was commenced, which involved being on call for substantial periods of time, working long hours, and getting off work at odd hours.

The mother testified that she was planning to return to work after the parties' divorce and expected to earn a gross monthly income of $2,429. She also offered as evidence a list of what she anticipated her monthly expenses would be after the parties were divorced. The monthly expenses totaled $9,645 and included costs for the children and health insurance to cover them.

The mother also testified that the father had earned more than $200,000 in 2016. She said that she was requesting $3,637 per month in child support. If awarded that amount, she said, she wanted $1,000 per month as alimony for a period of five years; she said that she wanted alimony for a longer period of time if she was awarded less child support.

The mother testified regarding the parties' lack of physical intimacy and the self-esteem issues that she had suffered as a result of feeling that the father was not attracted to her. She said that the father had expressed his desire to get divorced in 2014, and she offered documentary evidence demonstrating his communications with other women. She denied that she had had an affair, although she did admit to kissing a man at a restaurant during the pendency of the divorce action.

Extensive evidence was offered regarding the father's viewing of pornography on the Internet in the bedroom that the parties had shared before the divorce action was commenced -- where the children had also sometimes watched television and played. It is undisputed that the father viewed pornography; however, the mother clarified that she was not accusing the father of abusing the children, forcing them to view pornography, or doing anything inappropriate with them. She stated that she was "[a]bsolutely not" accusing him of any sexual activity involving the children. She said that the foregoing evidence simply demonstrated his lack of sound judgment.

The mother testified regarding contact she had made with the Family Sunshine Center in June 2016 to, she said, get "help" with the way that the father treated her because, in her opinion, it "was not right." Specifically, she stated: "I went because my husband had not touched me in 12 years." She said that, although she had protested, the counselor at the Family Sunshine Center had contacted the Department of Human Resources after hearing the mother's complaints regarding, among other things, the father's viewing of pornography. She denied that she had accused the father of anything. She said that nothing had come of the investigation conducted by the Department of Human Resources, which, she said, had involved interviewing the children.

The mother also testified regarding the various medical conditions that affected Wyatt and Bailey. Wyatt, she said, weighed two pounds when he was born and suffered from "a lot of [gastrointestinal] problems, some lung problems from prematurity, [and] some feeding issues." She said that Wyatt had undergone four surgeries but that he was doing well at the time of the trial. The mother testified that Bailey had weighed one pound, seven ounces when she was born. She said that Bailey was cognitively delayed and suffered from vision problems and "sensory issues"; for instance, on one occasion, she said, they discovered that Bailey had apparently removed her own toenails and had given no indication that she was in pain or discomfort. The mother said that Bailey did not begin chewing food until she was more than three years old because she had been fed through a tube as an infant and had therefore not developed the necessary reflexes to eat properly.

At the time of the trial, the mother said, Bailey was doing better but was "by far not to her peers." She said that Bailey was undergoing speech, occupational, and equestrian therapy at the time of the trial and that she was enrolled in a soccer program. She said that Bailey had also participated in gymnastics and swimming, but she said that, around the time that he said he wanted a divorce in August 2014, the father had not agreed to let Bailey continue participating in those activities. The mother said that she did not doubt that the father loved the children, but, she said, he had not participated "at all" in obtaining services for Wyatt's and Bailey's special needs.

The mother testified that she would like the parties to be awarded joint legal custody of the children and that she wanted physical custody of the children. She said that she still wanted the father to be involved in the children's lives and that she believed that maintaining a relationship with him was "[a]bsolutely" critical. The mother testified that she takes care of the children during the week. She said that, during the pendency of the divorce action, she had unsuccessfully attempted to communicate with the father regarding the children. The mother opined that she could provide better stability for the children and that they were her priority.

The mother testified that the father had attempted to care for the children alone for one whole week during the pendency of the divorce action and that Wyatt and Bailey had struggled during that time. Specifically, she said that Wyatt had urinated on himself and Bailey "had had a meltdown in therapy." In addition to the care that she provided the children, the mother said that they came to her if they had an issue with something. The mother said that the father was not patient with Bailey and that he had screamed at her on one occasion during the year before the trial. The mother stated that she participated in the children's field trips and activities and that the father was not involved in those activities. During cross-examination, the mother admitted that the father had provided care for the children occasionally and also stated: "We did a lot of joint decision making"; she disagreed that she "wore the pants in the family."

The mother called the father to testify as an adverse witness. The mother's attorney questioned the father about his work schedule, specifically about the week before the trial as an example. The father testified that he had not seen the children a great deal during that week. He said that he worked an average of 55 hours per week. Regarding his anticipated work schedule following the parties' divorce, however, the father said:

"I make the schedule at our work[,] and I've talked with my bosses ... and I've been given the ability to make whatever type I need that works out for me. So[,] for shared custody, if that were to be the case, I can work out an 8:00 to 4:00 schedule or a 9:00 to 5:00 schedule, whatever I need in order to be able to help take care of the kids."

The father admitted that, when at the marital residence during the pendency of the divorce action, he had spent substantial periods of time in his room and away from the mother and the children. He said that he had done so because he felt "uncomfortable" around the mother and wanted to "keep the peace." When pressed further by the mother's attorney, the father admitted that he had not spent as much time with the children as he "should have." The father also admitted that, at the time of his deposition, he had been unaware that Bailey was continuing to receive speech therapy. Regarding transporting the children to their various appointments, the father said that "[b]y far the majority of" that responsibility had fallen on the mother.

The father testified that, before Wyatt and Bailey were born, he "did everything [the mother] did" regarding the children's care. He said that the mother had become more involved in the children's care after Wyatt and Bailey were born due to the nature of their medical conditions. The father testified that he could adequately care for the children, as he had done in the past. He said that he had provided adequate care for the children during the week they had spent alone with him during the pendency of the divorce action, although he recalled Wyatt wetting the bed and Bailey becoming upset during a therapy session.

Regarding the parties' ability to co-parent, the father said that they had not been successful during the year preceding the trial. He admitted that he had not communicated with the mother regarding the children's teachers or therapists. He agreed that the children had become accustomed to having the mother around most of the time. The father also testified that the mother had not tried to communicate with him regarding the children.

The father admitted that he had visited pornography Web sites "[p]ossibly" every other day. He opined that he did not view pornography excessively, and he testified that the children were not in the parties' bedroom while he viewed pornography. The father also admitted to having communicated with other women during the marriage, and he said that he had told the mother he thought they should get divorced in 2014. He denied having an affair or committing adultery. The parties' attorneys orally stipulated during examination of the father that the Department of Human Resources had conducted an investigation but had found no abuse indicated.

The father testified that the mother had downloaded sexually explicit stories from the Internet. He said that he had seen material printed from a Web site and sex toys in the mother's nightstand drawer and that the stories included explicit descriptions of specific sex acts involving, among other things, multiple people. The father testified that the mother had, within the five years preceding the trial, hosted what the father's attorney described as a "sex toy party" in the marital residence. The father said that he did not believe any of the foregoing made the mother a bad person or a bad mother. He said that, on at least one occasion, he had discovered condoms in the mother's gym bag. He agreed that the parties had not been physically intimate in many years.

The father testified that he earned base pay of $150,000 annually and that, in 2016, he earned roughly $50,000 in additional income as a result of "call pay" and "overtime pay." He said that he could change his schedule after the parties were divorced, choosing to forgo the latter forms of compensation and elect to earn only his $150,000 base pay. The father stated that he expected to earn $12,500 per month following the parties' divorce. If ordered to pay monthly child support of $3,326, the father said, his total monthly expenses would be $12,385. However, the father asked the trial court to deviate from the "standard child support obligation" if he was awarded custody of the children during alternating weeks. He said that he would have to provide for the children as much as the mother would. When questioned by the mother's attorney regarding the disparity between the parties' anticipated incomes, the father said of the mother: "I think she's a well educated woman and capable of making much more than $29,000 a year."

The mother called several other witnesses to testify, including two school teachers, a speech therapist, and a teacher for the visually impaired. The overall takeaway from much of the testimony elicited by the mother from those witnesses was that she was involved in the children's school activities and therapies and that the father was not. During questioning by the father's attorney, the witnesses who said they were "mandatory reporters" noted that they had never made a report regarding suspected abuse of the children.

During his case-in-chief, the father called three witnesses to corroborate his testimony that he was a good father and was capable of caring for the children. One of the witnesses testified that the mother had approached her in a department store to discuss the parties' divorce and the father's sexual orientation; she said that one of the children had been standing next to the mother during the encounter. Testimony elicited from one of the other witnesses implied that the mother had engaged in extramarital affairs. The mother disputed much of that testimony in rebuttal.

Tyler testified extensively in camera. Tyler said that he loved both of his parents but preferred to live with the mother, and he opined that staying with the father every other weekend would be best. Tyler's testimony also indicated that, among other things, he believed the mother could better care for the children. Tyler's testimony also indicated that a nanny or a babysitter had provided for some of the children's care and transportation. At the close of all the evidence, the trial-court judge stated, among other things: "I will say the one good thing that I've heard today was through [Tyler] who sat there and said both of my parents encourage me and my siblings to interact with the other parent."

On August 17, 2017, the trial court entered a judgment that provided, in relevant part:

"The [father] has a bachelor's of science [degree] in nursing, which he obtained prior to the parties' marriage, as well as a master's of science [degree] in nursing and a master's of science [degree] as a nurse anesthetist, both of which he obtained during the marriage; the [mother] has a bachelor's of business [degree] and a master's of business [degree,] which she obtained during the marriage, as well as an associate's degree in respiratory therapy, which she obtained prior to the marriage.
"Both parties have worked during the marriage ... though the father has been the primary income earner of the family. The children require a great deal of time allocated to their care. Neither party will individually have enough time to care for the children, as they required a nanny/babysitter while married due to their time issues even when the [mother] was not employed, and the [mother] has had to obtain employment due to this divorce; neither party has shown that the other is unfit to care for the children ....
"....
"10. Alimony:
"1. The [father] shall pay $1,000 per month in alimony for a period of 24 months commencing September 1, 2017.
"11. Custody of Children:
"Pursuant to Code of Alabama, § 30-3-150 et seq., commonly known as the Joint Custody Statute, the parties shall have joint legal and physical custody of the minor children, and it is the intent of the Court, consistent with the statute, that the children have frequent and substantial contact with both parents. Our appellate court has repeatedly explained that custody determinations must be grounded in what is truly best for the minor children and such cases do not turn on what either party merely wants. The Court's highest duty is to the children, 'all other rights [including those of the parents] are secondary.' Ex parte D.W.W., 717 So.2d 793 [, 796] ( Ala. 1998). The Court finds it is in the best interests of the children to have equal time with each parent. Parenting time provided for herein shall not preclude other and further parenting time as the parties may from time to time agree.
"....
"E. Decision Making Authority -- Should the parties be unable to agree after discussion, consultation, and deliberation, the [mother] shall have final decision-making authority regarding issues concerning the children's health, and religious needs, and education in odd years, the [father] in even years and the [father] shall have final decision-making authority regarding issues concerning extracurricular activities in odd years, the [mother] in even years.
"....
"2. Each party shall pay all day-to-day expenses of the children while they are in that party's care. Each will have clothing and uniforms at their respective homes. The parties will share all major expenses of the children equally, including extracurricular expenses*[ ] such as sports, band, dance or school registration fees and supplies.
"The Court will take a very conservative stance on extra-curricular activities and the reimbursement of the same. While these activities are beneficial to the child in most cases, these decisions must be based on the reasonableness of the cost and each party's ability to afford the same.
"3. The parties will maintain health insurance on the minor children in the same manner in which it currently exists, with [the father] being responsible for ensuring the children are insured. Each party shall pay one-half of all uninsured and/or unreimbursed medical, dental, pharmaceutical, psychological, psychiatric, optical and orthodontic expenses of the minor children, including co-payments.
"....
"4. The payment of child support shall not be owed by either party, based on the parties having equal access to the children. The parenting plan issued by this Court is the purpose f[or] the deviation from Rule 32, [Ala. R. Jud. Admin.]."

On September 13, 2017, the mother filed a postjudgment motion challenging the portions of the trial court's judgment regarding custody, the allocation of final decision-making authority, and the failure to award child support. On September 28, 2017, the father filed a response to the mother's postjudgment motion, in which he included a "counterclaim to alter, amend, or vacate," asserting that, since entry of the trial court's judgment, Tyler had begun to refuse to spend time with him. On November 29, 2017, the father filed what he called a "motion to require attendance of minor children" at the postjudgment hearing, in which he asserted that Brianne had also begun refusing to spend time with him.

The mother filed a response to the father's motion, arguing, in relevant part, that, because the underlying facts had occurred since entry of the trial court's judgment, the trial court could not consider the father's allegations at the postjudgment hearing and that the father should have instead asserted them in a new, separate action. On December 1, 2017, the trial court entered an order granting the father's "motion to require attendance of minor children." The mother filed an "objection" to the trial court's ruling.

On December 4, 2017, the trial court conducted a postjudgment hearing. That same day, the trial court entered an order denying the mother's postjudgment motion. The trial court did not enter an order addressing the father's postjudgment motion, and it was therefore denied by operation of law. See Rule 59.1, Ala. R. Civ. P. The mother filed a timely notice of appeal on January 10, 2018.

Analysis

The mother first argues that the trial court's award of joint physical custody was not supported by sufficient evidence. One of the cases that the mother cites in support of her argument is Hyche v. Hyche, 226 So.3d 673 (Ala. Civ. App. 2016). The father asserts that the mother's reliance on Hyche is misplaced because, he says, that case is "strikingly similar in several ways to the present case."

The mother in Hyche also argued that a trial court's award of joint physical custody was not supported by sufficient evidence. Id. at 674. In affirming the trial court's resolution of that issue, we recited the following relevant general legal principles:

" 'It is the policy of this state to assure that minor children have frequent and continuing contact with parents who have shown the ability to act in the best interest of their children and to encourage parents to share in the rights and responsibilities of rearing their children after the parents have separated or dissolved their marriage. Joint custody does not necessarily mean equal physical custody.'

"§ 30-3-150, Ala. Code 1975.

" ' "[O]ur review of custody determinations based on ore tenus evidence is quite limited; the trial court's custody judgment is presumed correct and should be reversed only if the judgment is plainly and palpably wrong." Smith v. Smith, 887 So.2d 257, 262 (Ala. Civ. App. 2003).
" '....
" 'In Graham v. Graham, 640 So.2d 963, 964 (Ala. Civ. App. 1994), this court wrote:
" ' "In an action between parents seeking an initial award of custody, the parties stand on equal footing and no presumption inures to either parent. Hall v. Hall, 571 So.2d 1176 (Ala. Civ. App. 1990). The trial court's overriding consideration is the children's best interests and welfare. Santmier v. Santmier, 494 So.2d 95 (Ala. Civ. App. 1986). The factors that enter into the court's custody determination include the child's age and sex and each parent's ability to provide for the child's educational, material, moral, and social needs. Tims v. Tims, 519 So.2d 558 (Ala. Civ. App. 1987). Likewise, it is proper for the court to consider the 'characteristics of those seeking custody, including age, character, stability, mental and physical health ... [and] the interpersonal relationship between each child and each parent.' Ex parte Devine, 398 So.2d 686, 696-97 (Ala. 1981)." '
" Harris v. Harris, 59 So.3d 731, 734-35 (Ala. Civ. App. 2010).
"In addition, § 30-3-152, Ala. Code 1975, provides, in pertinent part:
" '(a) The court shall in every case consider joint custody but may award any form of custody which is determined to be in the best interest of the child. In determining whether joint custody is in the best interest of the child, the court shall consider the same factors considered in awarding sole legal and physical custody and all of the following factors:
" '(1) The agreement or lack of agreement of the parents on joint custody.
" '(2) The past and present ability of the parents to cooperate with each other and make decisions jointly.
" '(3) The ability of the parents to encourage the sharing of love, affection, and contact between the child and the other parent.
" '(4) Any history of or potential for child abuse, spouse abuse, or kidnapping.
" '(5) The geographic proximity of the parents to each other as this relates to the practical considerations of joint physical custody.
" '(b) The court may order a form of joint custody without the consent of both parents, when it is in the best interest of the child.' "

226 So.3d at 674-75.

The mother also points to § 30-3-152(c), Ala. Code 1975, which provides, in its entirety:

"If both parents request joint custody, the presumption is that joint custody is in the best interest of the child. Joint custody shall be granted in the final order of the court unless the court makes specific findings as to why joint custody is not granted."

The mother cites Vest v. Vest, 215 So.3d 552, 559 (Ala. Civ. App. 2016), for the proposition that, because she did not request an award of joint custody, § 30-3-152(c) should not operate to create a presumption that an award of joint custody was in the children's best interest. We agree. As noted in the quotation from Hyche, however, § 30-3-152(b) allows trial courts to order joint custody without the parents' consent when doing so is in the best interest of the children.

Regarding that question, the mother, like the mother in Hyche, "essentially argues that the trial court should have interpreted the evidence presented in particular ways or placed more emphasis on certain portions of the evidence." Hyche, 226 So.3d at 678. Specifically, the mother points to the evidence presented demonstrating Tyler's preferred custodial arrangement and to the evidence presented regarding the disparity between her level of involvement in the children's lives and that of the father. She also cites the evidence presented indicating that she was better suited to provide stability for the children and to address their special needs and to the evidence presented regarding the father's viewing of pornography. In other words, she contends that application of the factors listed in Ex parte Devine, 398 So.2d 686, 696-97 (Ala. 1981), should have foreclosed an award of joint physical custody.

The father, however, presented evidence indicating that he was, in fact, capable of providing adequate care for the children. Although he admitted that he had not been as involved in the children's lives as the mother, he also opined that he had the ability to meet their needs, and he elicited testimony from other witnesses to corroborate his testimony. Regarding the father's viewing of pornography, the mother testified that she was not accusing the father of exposing the children to that material, and the father presented evidence indicating that the mother had also possessed sexually explicit materials.

" '[W]e are "charged only with determining whether the evidence was sufficient to support the trial court's judgment" and not with determining whether there was a sufficient basis for a different judgment than that entered by the trial court,' .... Henning v. Henning, 26 So.3d 450, 455 (Ala. Civ. App. 2009) (quoting Ex parte Ederer, 900 So.2d 424, 426 (Ala. 2004) )."

Hyche, 226 So.3d at 678-79. In its judgment, the trial court specifically determined that "it is in the best interests of the children to have equal time with each parent." Although the evidence presented regarding the factors set out in Ex parte Devine, 398 So.2d at 696-97, might also have supported an alternative custody arrangement, we are not convinced that an award of joint physical custody was foreclosed as a matter of law.

"We next consider ... the factors enumerated in § 30-3-152(a), Ala. Code 1975." Hyche, 226 So.3d at 679. Of those factors, the mother specifically relies on the evidence presented demonstrating the parties' failure to communicate and cooperate regarding issues related to the children. It was undisputed that the parties had not communicated well during the pendency of the divorce action and had therefore not cooperated regarding the children or made decisions jointly during that time. That evidence, however, did not compel a determination that they were unable to do so. The mother specifically testified that the parties "did a lot of joint decision making" in the past. Moreover, the father's testimony indicates that his failure to communicate with the mother stemmed, at least in part, from his unwillingness to physically confront her in the marital residence, where both parties lived during the pendency of the divorce action. In light of the evidence presented regarding his ability to provide adequate care for the children and his willingness to alter his work schedule following the parties' divorce, the trial court could have determined that the father would be more flexible and willing to communicate and coordinate with the mother after the parties were divorced and no longer cohabiting.

The mother next argues that the trial court erred to reversal by awarding the parties annually alternating final decision-making authority because such an arrangement, she says, does not promote stability for the children. In response, the father asserts:

"Any argument by the [mother] that the award of alternating decision making authority will be disruptive is purely speculative. In fact, such an arrangement may cause the parties to work together more effectively. Each party knowing that a draconian decision made against the interests of the other parent could be revisited in a reciprocal manner upon themselves, may very well foster collaboration."

The mother bases her argument on an assertion that the arrangement set out in the trial court's judgment is derived from proposed legislation that failed to pass, but she does not direct us to that bill. As the father points out, the only authority the mother cites in support of her argument is Hovater v. Hovater, 577 So.2d 461 (Ala. Civ. App. 1990). In that case, which predates enactment of the joint-custody statutory framework, see § 30-3-150 et seq., Ala. Code 1975, this court discussed the legal concept of joint custody and noted the difficulties that may accompany such awards. Hovater, 577 So. 2d at 466. Of course, we did not address the issue raised here.

We question whether the decision-making arrangement in this case will effectively promote stability for the children, and we note the astute concerns raised by Presiding Judge Thompson in his special writing regarding the parties' historic relationships with each other and the children. Complications are easy to foresee under these circumstances. However, § 30-3-152(a) specifically provides: "The court ... may award any form of custody which is determined to be in the best interest of the child." (Emphasis added.)

At this stage, no evidence has been presented demonstrating that the arrangement set out in the trial court's judgment will not serve the children's best interests or adequately suit the needs of the family following the parties' divorce. It may indeed do so under certain circumstances, and it was the function of the trial court to decide in the first instance whether the parties possess the capacity to make joint decisions for the children's benefit. Its chosen arrangement may be an attempt to create a "starting point" for the parties that provides relatively equivalent prospective footing, which could, it may have reasoned, serve the children's best interests by equalizing the authority delegated to each parent. Moreover, should the arrangement prove to be unstable at any time, evidence regarding that issue may be presented in a subsequent modification action.

We have been directed to no authority that prohibits imposition of the admittedly unorthodox arrangement set out in the trial court's judgment. Section 30-3-152(a) expressly grants a great deal of discretion to trial courts when making custody determinations. In light of the absence of contrary legislative direction and the relatively limited arguments presented by the parties in this case, we decline to, as a matter of law, diminish trial courts' discretion under these circumstances. Whether the courts of this state should be precluded from creating the types of custodial arrangements presented here is a question best addressed by the legislature, which conferred upon the trial courts the broad powers set out in § 30-3-152(a). See Springhill Hosps., Inc. v. State Health Planning & Dev. Agency, 224 So.3d 670, 676 (Ala. Civ. App. 2016) ("Consideration of the wisdom of such a scheme is not within the province of this court ...."). We will therefore not reverse the trial court's judgment based on the mother's second argument.

The mother next argues that the trial court erred by failing to award her child support. Specifically, she asserts:

"The [mother] does not argue that the trial court was without jurisdiction to decline an award of child support, nor does [she] argue that an equal sharing of parenting time can be justification for declining to award child support. It is, however, the [mother]'s contention that[,] given that the children should not suffer financially from the breakup of their family, that child support is for the sole benefit of the child, and that children should be allowed to maintain the same financial condition as they would have had if their parents had not divorced, when the discrepancy in the parties' incomes is so significant and the expenses for the children are extraordinary as with the special needs of the children in this case, it is an abuse of discretion and a failure to protect the welfare and best interests of the ... children by not awarding child support. In this case[,] the [father] conceded that his child support obligation would be $3,637.00.[ ]... Notably[,] while the [father] asked the trial court to award a week on/week off custody arrangement, the [father] did not ask the trial court to relieve him of an obligation to pay child support. To the contrary, the [father] testified as to what his child support obligation would be as if he expected to pay child support even with a week on/week off custody award, and he included a child support obligation as part of his post divorce expenses."

In response, the father argues that "[t]his Court has specifically addressed a disparity in income between parents awarded joint custody" and cites Bonner v. Bonner, 170 So.3d 697 (Ala. Civ. App. 2015). In Bonner, the evidence presented indicated that the husband earned income of $18,065 per month and that the wife earned income of $1,300 per month. Id. at 700. In relevant part, we noted the following regarding the issues raised on appeal:

"The wife contends that the trial court erred in not ordering the husband to pay child support.
" 'Actions concerning child support, although guided by the mandatory application of Rule 32, Ala. R. Jud. Admin., are still committed to the sound discretion of the trial court, and its decision on such matters will not be disturbed on appeal absent a finding that the trial court's award is a palpable abuse of its discretion. Peck v. Peck, 581 So.2d 1119 (Ala. Civ. App. 1991) ; Belser v. Belser, 558 So.2d 960 (Ala. Civ. App. 1990). The amount of support which would result from the application of the guidelines is presumed to be the correct amount of child support. Rule 32(A), Ala. R. Jud. Admin. This presumption may be rebutted if the trial court makes a finding of fact that, based upon the evidence presented, the application of the guidelines would be manifestly unjust or inequitable. Rule 32(A)(ii), Ala. R. Jud. Admin.; Peck, supra. '
" Hutchins v. Hutchins, 637 So.2d 1371, 1373-74 (Ala. Civ. App. 1994). The trial court found that 'application of the Child Support Guidelines of Rule 32 of the Alabama Rules of Judicial Administration in this matter would be manifestly unfair or inequitable because of the joint physical custody arrangement of the order.' The wife argues that the divorce judgment lacks sufficient factual findings to justify the deviation from the child-support guidelines. However, '[s]hared physical custody is a recognized basis for such a deviation.' Shewbart v. Shewbart, 19 So.3d 223, 231 (Ala. Civ. App. 2009). The trial court stated in the divorce judgment that the joint-physical custody order was the reason for not ordering child support. The divorce judgment, therefore, contains proper justification for deviating from the child-support guidelines. See id.
"The wife further argues that the trial court failed to consider the disparity in income between her and the husband in declining to order child support to be paid. She asserts that her health issues impact her ability to work and that, pursuant to the divorce judgment, her mortgage and car-loan obligations totaling $2,267 a month exceed her monthly income. We note that, although the wife reported a monthly income of only $1,300 in her CS-41 form, the divorce judgment ordered that the wife was to receive $880 from the husband's military-retirement benefits each month (15.46% of $5,698) and $2,000 a month in alimony for 12 months. Additionally, the trial court received evidence regarding the wife's legal education and experience as an attorney. Although the wife testified that she had been diagnosed with [common variable immune deficiency] and that that condition impacted her ability to work, the weight of that evidence was for the trial court to assess. See Ex parte Fann, 810 So.2d 631, 633 (Ala. 2001) (holding that the trial court assesses the weight of evidence and the credibility of testimony). The evidence also indicates that the parties will continue to live in the same residence after the divorce until an agreement on the disposition of that property is reached. Moreover, when a trial court properly orders joint physical custody to the parties, payment of child support by one spouse to the other is not mandatory. McElheny v. Peplinski, 66 So.3d 274, 282 (Ala. Civ. App. 2010) (citing Allen v. Allen, 966 So.2d 929, 932-33 (Ala. Civ. App. 2007), quoting in turn Boatfield v. Clough, 895 So.2d 354, 357 (Ala. Civ. App. 2004) ). Although we might have reached a different conclusion than the trial court as to this issue, we cannot hold that the failure to award child support under these circumstances is reversible error."

Id. at 705-06.

The mother notes that, according to their respective CS-41 forms, the father earned $16,667 per month and the mother earned $2,429 per month at the time of the trial. The father testified, however, that he expected to earn $12,500 per month following the parties' divorce, and the child-support calculation that the father submitted used $12,500 as his monthly income. Unlike the wife in Bonner, the mother in this case does not address any specific deficit that will arise in the absence of child support; she argues only generally that the children will suffer financial disruption. The record contains no evidence that such disruption will occur.

As already noted, the list of expenses the mother anticipated incurring following the parties' divorce included expenses and health insurance for the children. The trial court also awarded the mother periodic alimony in the amount of $1,000 per month for 24 months. The trial court's judgment provides for "equal time with each parent" and requires the father to pay the children's "day-to-day expenses" that arise during his custodial time and to maintain health insurance for them. Although the trial court's judgment requires the parties to share equally in the expenses related to the children's extracurricular activities, it limits that mandate to expenses that are reasonable and requires each party to take into consideration the other "party's ability to afford the same." In light of the foregoing, we decline to reverse the trial court's judgment based solely on the evidence presented regarding the disparity between the father's income and the mother's income.

AFFIRMED.

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

Thompson, P.J., concurs in the result in part and dissents in part, with writing.

THOMPSON, Presiding Judge, concurring in the result in part and dissenting in part.

I concur in the result reached by the main opinion with regard to the issue of the award of joint physical custody. I might not have reached the same result as did the trial court. However, the trial court's decision is supported by its receipt of ore tenus evidence and its thoughtful findings of facts regarding the best interests of the children at issue. See Ex parte Fann, 810 So.2d 631, 632-33 (Ala. 2001) (explaining the presumption of correctness in favor of the trial court's judgment when it receives ore tenus evidence).

However, I disagree with that part of the main opinion that affirms the granting of alternating decision-making authority to the parents. The record in this case demonstrates that the parties have not communicated well and that the father's level of involvement with the children, particularly the children with special needs, demonstrates a lack of interest in or awareness of their issues. The children, particularly those with special needs, need the stability of decision-making by one parent. The parties' youngest children were eight years old at the time of the entry of the divorce judgment. I would reverse as to that issue and direct the trial court to enter a judgment that best ensures stability in the lives of the parties' children.

I also dissent from the affirmance of the trial court's failure to award child support. The disparity in the parties' incomes is extreme in this case, and, as the trial court recognized, both parties need to have the assistance of a sitter in order to care for and transport the children when they are at work. The effect of the trial court's judgment is to require the mother, who expects to earn less than $30,000 per year, to provide a home, to pay for the care of the children, and to support the children to the same extent as will the father, who earns approximately $200,000 annually. Shared physical custody is a reason for deviating from the application of the Rule 32, Ala. R. Jud. Admin., child-support guidelines, but such a deviation is not required merely because the parties share physical custody. See Rule 32(A)(1), Ala. R. Jud. Admin. Given the facts of this case, I dissent from the main opinion's affirmance of that part of the judgment that declined to award child support. See Green v. Green, [Ms. 2160986, May 18, 2018] So. 3d , (Ala. Civ. App. 2018) (per Pittman and Moore, JJ., with Thompson, P.J., concurring in the result) ("Although a deviation from the child-support guidelines would be permissible in this case, by going so far as to not award child support in light of the particular joint-physical-custody schedule in this case, we agree with the mother that the circuit court abused its discretion.").

      The mother testified that Wyatt and Bailey had been conceived via "IVF," which we presume to mean in vitro fertilization.

      The trial court's judgment contains an asterisk, but the reason for its usage is unclear.

      Among other cases, the mother also cites Cowperthwait v. Cowperthwait, 231 So.3d 1101 (Ala. Civ. App. 2017), D.M.P.C.P. v. T.J.C., 138 So.3d 296 (Ala. Civ. App. 2012), Alexander v. Alexander, 65 So.3d 958 (Ala. Civ. App. 2010), Bishop v. Knight, 949 So.2d 160 (Ala. Civ. App. 2006), and DuBois v. DuBois, 714 So.2d 308 (Ala. Civ. App. 1998), in support of her argument. In response, the father asserts:
      "[I]n every case cited by the [mother], this Court refused to reverse the trial court's decision and stated in each case what this Court has ruled again. Namely, this Court's job is not [to] reweigh ore tenus evidence and substitute its own judgment for that of the trial court."
      Of the cases cited by the mother, we reversed a trial court's custody determination in only Bishop, 949 So.2d at 168. However, that case is distinguishable because, among other reasons, it was "undisputed that the trial court was bound to apply the standard set forth in Ex parte McLendon, 455 So.2d 863 (Ala. 1984)," as opposed to the best-interest standard used in making an initial custody determination. 949 So.2d at 166.

      As noted above, the father mentioned a potential monthly child-support obligation of $3,326 during his testimony. The reason for the discrepancy between the figures is unclear.

      We agree with the observation set out in the special writing that a deviation from the child-support guidelines was not "required merely because the parties share physical custody." 268 So.3d at 90 (emphasis added). However, for the reasons already explained, the trial court was not precluded from doing so. Regarding the portion of this court's recent decision in Green v. Green, 264 So.3d 898, ---- (Ala. Civ. App. 2018), that is quoted in the special writing, the main opinion in Green did not reverse that trial court's failure to award that mother child support based on a disparity of income between those parties. That portion of the main opinion in Green was instead based on the following reasoning: "[P]ursuant to the May 12, 2017, modification judgment under review, the child lives with the mother for substantially longer periods than he lives with the father." --- So. 3d at ---- (per Pittman and Moore, JJ., with Thompson, P.J., concurring in the result). In this case, the trial court declined to award the mother child support precisely "based on the parties having equal access to the children" (emphasis added), which decision was within its discretion. See Bonner, 170 So.3d at 705.


author: MOORE, Judge.

text:
    Matthew GALLANT v. Rebecca GALLANT
    2170613
    Court of Civil Appeals of Alabama.
    August 3, 2018
    Austin Burdick of Burdick Law Firm, Bessemer, for appellant.
    Submitted on appellant's brief only.
   MOORE, Judge.

Matthew Gallant ("the father") appeals from a judgment of the Elmore Circuit Court ("the trial court") that, among other things, found him in contempt of a previous judgment divorcing him from Rebecca Gallant ("the mother"). We dismiss the appeal, albeit with instructions to the trial court.

Procedural History

These parties have previously appeared before this court in Gallant v. Gallant, 184 So.3d 387 (Ala. Civ. App. 2014) ; Ex parte Gallant, 221 So.3d 1120 (Ala. Civ. App. 2016) (" Gallant II"); Gallant v. Gallant, 229 So.3d 797 (Ala. Civ. App. 2017) (" Gallant III"); Ex parte Gallant, 261 So.3d 350 (Ala. Civ. App. 2017) (" Gallant IV"); and Gallant v. Gallant, [Ms. 2170097, June 29, 2018] --- So. 3d ---- (Ala. Civ. App. 2018) (" Gallant V"). In Gallant IV, this court summarized the procedural background of the case:

" 'On August 29, 2009, the trial court entered a judgment in case number DR-09-900071, divorcing the father and [the mother]. That judgment, which incorporated a settlement agreement entered into by the parties, awarded the mother sole physical custody of the parties' five children, subject to the father's right to visitation, awarded the parties joint legal custody of the children, and ordered the father to pay child support and other financial support to the mother. On May 5, 2012, the father filed a contempt petition, which was assigned case number DR-09-900071.01. He later amended his petition to request that the custody provisions of the divorce judgment be modified to award him sole legal and physical custody of the parties' children. In that same action, the mother filed a counterclaim seeking modification of the custody and visitation provisions of the divorce judgment, as well as a finding of contempt against the father. On February 28, 2014, the trial court entered a judgment that, among other things, awarded the mother sole legal and physical custody of the children and modified the visitation rights of the father. This court affirmed that judgment. See Gallant v. Gallant, 184 So.3d 387 (Ala. Civ. App. 2014).
" 'On June 18, 2014, the father filed a petition alleging that the mother had contemptuously violated various provisions of the 2009 divorce judgment and seeking custody of the children. That petition was assigned case number DR-09-900071.02. On July 28, 2014, the mother filed a counterclaim, which was assigned case number DR-09-900071.03. After a trial, the trial court, on January 19, 2016, denied the father's petition and the mother's counterclaim by rendering a single judgment that was entered in both case number DR-09-900071.02 and case number DR-09-900071.03. Neither party appealed from the judgment entered in those cases.
" 'On June 21, 2016, the mother filed a contempt and modification complaint under case number DR-900071.03. On August 10, 2016, the father filed a motion to dismiss that contempt and modification complaint. In that motion, the father also moved the trial court to set aside the January 19, 2016, judgment entered in case number DR-09-900071.02 and in case number DR-09-900071.03 for lack of subject-matter jurisdiction. The trial court, on August 12, 2016, denied the father's motion to dismiss and his motion to set aside by rendering a single order that was entered in both case number DR-09-900071.02 and case number DR-09-900071.03. The father filed his petition for a writ of mandamus on August 30, 2016.'
" [Gallant II,] 221 So.3d at 1121-22.
"In Gallant II, the father filed a petition for a writ of mandamus, arguing that the trial court had erred in denying his motion to set aside the January 19, 2016, judgment and that the trial court had erred in denying his motion to dismiss the contempt and modification complaint filed by the mother, in case number DR-09-900071.03, on June 21, 2016. We concluded that the father had filed his motion to set aside the January 19, 2016, judgment pursuant to Rule 60(b)(4), Ala. R. Civ. P., and elected to treat that portion of the father's petition as an appeal that would be, and was, addressed separately in appeal number 2151010. 221 So.3d at 1122. With regard to the father's motion to dismiss, we granted in part and denied in part the father's petition for a writ of mandamus. Specifically, we determined that the trial court did not have subject-matter jurisdiction over the mother's claim regarding visitation and/or modification, and we issued the writ of mandamus to require the trial court to dismiss that claim. 221 So.3d at 1123. We observed that the father's motion to dismiss relied solely on the Uniform Child Custody Jurisdiction and Enforcement Act ('the UCCJEA'), Ala. Code 1975, § 30-3B-101 et seq., and, thus, because the mother's claims that the father had contemptuously failed to pay child support, extracurricular fees, and attorney's fees did not involve child-custody matters, we construed the father's motion to dismiss as relating solely to the visitation claims made in the mother's complaint. Id. Accordingly, we denied the father's petition insofar as the mother's claims addressed the father's alleged contemptuous failure to abide by the trial court's earlier judgments related to his obligations to pay child support, extracurricular fees, and attorney's fees. Id. We also denied the father's petition with regard to the mother's claims that the father had contemptuously violated the trial court's visitation orders. Id.
"In Gallant III, which addressed appeal number 2151010, we affirmed in part and reversed in part the trial court's August 12, 2016, judgment denying the father's motion to set aside the trial court's January 19, 2016, judgment for lack of subject-matter jurisdiction. Specifically, we decided that, to the extent the trial court's January 19, 2016, judgment spoke to the parties' allegations of contempt resulting from failures to comply with the divorce judgment and modifications thereto, the trial court was within its jurisdiction to enforce its prior judgments; thus, we affirmed the denial of the father's Rule 60(b), Ala. R. Civ. P., motion insofar as it related to those claims. 229 So.3d at 802. We also determined that, because neither party continued to reside in Alabama and this state could no longer exercise jurisdiction over the parties pursuant to the UCCJEA at the time the trial court's January 19, 2016, judgment was entered, the trial court did not have subject-matter jurisdiction over the parties' respective visitation- and custody-modification claims. 229 So.3d at 801-02. Accordingly, we determined that the trial court had erred when it denied the father's Rule 60(b) motion seeking to set aside the trial court's January 19, 2016, judgment addressing those claims insofar as they spoke to a modification of visitation or custody of the children. Id. Accordingly, we reversed the August 12, 2016, judgment in part and remanded the cause for the entry of a judgment consistent with our opinion.
"On remand, the trial-court judge who entered the January 19, 2016, judgment entered an order on February 18, 2017, vacating that judgment insofar as it 'relates to issues of custody and/or visitation of the minor children of the parties' and recusing himself from further involvement with the case."

261 So.3d at 351-53.

Following this court's reversal in Gallant III, the mother amended her complaint, asserting additional counts of contempt against the father. Gallant V, --- So. 3d at ----. The trial court entered a judgment on August 10, 2017, finding the father in contempt for his failure to pay child support, for his failure to pay his portion of expenses for extracurricular activities and other fees for the children, for his failure to pay for one of the children's braces, and for his failure to pay attorney's fees that had been awarded in the divorce judgment. Id. The father appealed to this court, and, in Gallant V, we affirmed the trial court's judgment. --- So. 3d at ----.

Meanwhile, on September 25, 2017, the mother filed in the trial court a petition for contempt against the father, asserting that the father had denied the mother custody of the children since June 21, 2017, that he had obtained a protection-from-abuse order against her from a court in Maine, and that the Maine court had issued a temporary order on September 20, 2017. The mother attached to her petition, among other things, the protection-from-abuse order that was issued by the Maine court, which awarded temporary custody of the parties' children to the father, and the addendum thereto, which ordered, among other things, that the mother's contact with the children was to be supervised and that the father's child-support payments were suspended. The addendum also stated, in pertinent part: "This order can be modified by agreement, by further court order, and [by] Family Court order." The mother filed an amended petition for contempt on October 6, 2017; she asserted, in addition to her previous claims, that the father had failed to pay child support for the month of September 2017, that the father had failed to make payments as ordered by the trial court on August 10, 2017, regarding an automobile-insurance claim for one of the parties' children, and that the father had failed to maintain health insurance on one of the parties' children as ordered by the trial court.

On October 12, 2017, the mother filed in the trial court a motion for the immediate return of the children. On October 13, 2017, the trial court entered an order granting that motion and directing the father to return the children to the mother. The mother filed a motion to show cause on October 17, 2017, asserting that the father had failed to return the children to the mother. On October 24, 2017, the father's attorney filed a notice of appearance "for the limited purpose of moving for dismissal of th[e] matter for want of personal and subject-matter jurisdiction"; the father filed a motion to dismiss on that same date, asserting lack of personal and subject-matter jurisdiction and insufficiency of service of process. The father included in his motion to dismiss a motion for sanctions and a request for attorney's fees, asserting that the mother had made false statements to the trial court and that her contempt claims were without substantial justification.

The trial court entered an order on the mother's motion to show cause on November 14, 2017; it granted the mother's motion, finding the father in contempt and directing him to immediately return the children to the mother. The mother filed a motion for sanctions on December 14, 2017, asserting that the father had failed to return the children to her custody until December 6, 2017, when a New York court ordered the father to return the children to the mother; she sought a finding of contempt against the father and an award of attorney's fees. On February 21, 2018, the trial court entered an order finding that the father had violated the trial court's October 13, 2017, order by failing to return the children to the mother, that the father had canceled the children's health insurance, and that the mother had incurred medical expenses on the children's behalf. It found the father in contempt and entered a judgment against him in the amount of $11,341, which amount represented the medical expenses owed by the father, the child-support arrearage owed by the father, and attorney's fees. The father timely filed his notice of appeal to this court.

Analysis

The father asserts on appeal that the trial court erred in denying his motion to dismiss and that the trial court lacked subject-matter jurisdiction over the mother's contempt petition. We agree.

The father argues that the trial court had lost exclusive continuing jurisdiction over custody disputes between the parties because neither the parties nor the children remain residents of Alabama and because the order issued by the Maine court was the controlling order, thereby depriving the trial court of jurisdiction.

Section 30-3B-206(a), Ala. Code 1975, a part of the Uniform Child Custody Jurisdiction and Enforcement Act ("the UCCJEA"), § 30-3B-101 et seq., Ala. Code 1975, provides:

"Except as otherwise provided in Section 30-3B-204, [Ala. Code 1975,] a court of this state may not exercise its jurisdiction under this article if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with this chapter, unless the proceeding has been terminated or is stayed by the court of the other state because a court of this state is a more convenient forum under Section 30-3B-207[, Ala. Code 1975]."

Section 30-3B-102(4), Ala. Code 1975, defines a "child custody proceeding" as "[a] proceeding in a court in which legal custody, physical custody, or visitation with respect to a child is an issue" and notes that that term includes a proceeding for protection from domestic violence. Thus, the father's protection-from-abuse action in the Maine court, which both considered and ruled upon the children's custody, commenced a proceeding concerning the custody of the children in Maine, presumably pursuant to the Maine court's temporary emergency jurisdiction, before the mother filed her contempt petition in the trial court. The trial court did not make a finding indicating that the Maine court did not have jurisdiction to enter its temporary order pursuant to its temporary emergency jurisdiction or otherwise. Also, there is no indication in the record that, at the time the trial court entered its judgment directing the father to return the children to the mother's custody, the proceeding in Maine had been terminated or stayed because the trial court was a more convenient forum. Thus, in accordance with § 30-3B-206(a), the trial court was not entitled to exercise jurisdiction over custody issues between the parties under the UCCJEA in the present case. This court decided in Gallant II that the trial court had lost continuing exclusive jurisdiction to modify custody between the parties, see 221 So.3d at 1123 ; thus, the trial court would not have had jurisdiction to modify the order entered by the Maine court as it pertained to custody of the children. Accordingly, we conclude that the trial court lacked subject-matter jurisdiction over the mother's contempt petition.

Because a judgment entered by a trial court lacking subject-matter jurisdiction is void and will not support an appeal, we dismiss the father's appeal, albeit with instructions to the trial court to vacate all orders entered by the trial court stemming from the filing of the mother's September 25, 2017, contempt petition. See Morgan v. Morgan, 183 So.3d 945, 954 (Ala. Civ. App. 2014).

APPEAL DISMISSED WITH INSTRUCTIONS.

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

      Because the trial court did not acquire subject-matter jurisdiction over the action at the time the mother filed her original petition for contempt, which alleged only issues related to the custody of the children, the mother's amendment to the petition, alleging additional issues, was a nullity. See Ex parte Owens, 65 So.3d 953, 956-57 (Ala. Civ. App. 2010).