author: HARWOOD, Justice. JOHNSTONE, Justice

text:
    BAPTIST HEALTH SYSTEM, INC. v. Lisa MACK.
    1011279.
    Supreme Court of Alabama.
    April 18, 2003.

      William G. Somerville III and Lynlee Wells Palmer of Johnston Barton Proctor & Powell, LLP, Birmingham, for appellant.
    Cecil G. Duffee III of Duffee & Associates, L.L.C., Birmingham, for appellee.
   HARWOOD, Justice.

On October 19, 2001, Lisa Mack, a licensed practical nurse, sued her employer, Baptist Health System, Inc. (“BHS”), which operates a number of health-care facilities including the Shelby Ridge Nursing Home (“Shelby Ridge”) where Mack was employed. Mack also sued the Alabama Department of Industrial Relations (“DIR”) and other fictitiously named defendants. As finally amended, Mack’s complaint presented claims against BHS alleging refusal to pay workers’ compensation benefits, retaliatory discharge, and wrongful termination. Mack’s complaint also served as a notice of appeal of DIR’s decision to deny her request to receive unemployment-compensation benefits.

After various filings by DIR and Mack, the trial court ordered that Mack’s retaliatory-discharge and wrongful-termination claims against BHS be decided before her unemployment-compensation claim against DIR was adjudicated. Thereafter, BHS moved the court to stay the proceedings and compel arbitration of Mack’s retaliatory-discharge and wrongful-termination claims. BHS relied on an arbitration provision contained in a document entitled “Dispute Resolution Program” (“the Program”) BHS provided to its employees. Mack opposed the motion and filed a response, and BHS submitted a reply. After BHS subsequently supplemented its reply to Mack’s opposition to arbitration, the trial court entered an order denying BHS’s motion to stay and to compel arbitration. BHS filed a motion to sever Mack’s workers’ compensation claim from her retaliatory-discharge and wrongful-termination claims; that motion was granted. Next, BHS appealed the trial court’s denial of its motion to compel arbitration to this Court, arguing that it is entitled to compel arbitration under the Program.

“ ‘ “[T]he standard of review of a trial court’s ruling on a motion to compel arbitration at the instance of either party is a de novo determination of whether the trial judge erred on a factual or legal issue to the substantial prejudice of the party seeking review.” Ex parte Roberson, 749 So.2d 441, 446 (Ala.1999). Furthermore:
“ ‘ “A motion to compel arbitration is analogous to a motion for [a] summary judgment. TranSouth Fin. Corp. v. Bell, 739 So.2d 1110, 1114 (Ala.1999). The party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration and proving that the contract evidences a transaction [substantially] affecting interstate commerce. Id. ‘After a motion to compel arbitration has been made and supported, the burden is on the non-mov-ant to present evidence that the supposed arbitration agreement is not valid or does not apply to the dispute in question.’ ”
‘Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 280 (Ala.2000) (quoting Jim Burke Auto., Inc. v. Beavers, 674 So.2d 1260, 1265 n. 1 (Ala.1995) (emphasis omitted).’
“Vann v. First Community Credit Corp., 834 So.2d 751, 752-53 (Ala.2002).”

Potts v. Baptist Health System, Inc., 853 So.2d 194, 196-97 (Ala.2002).

The record shows that in November 1997 BHS implemented the Program effective January 1, 1998, requiring that all disputes arising between BHS and its employees be submitted to alternative dispute resolution. Details of the Program were not contained in any employee handbook but rather were set out in a separate document (“the Program document”). Mack stated in her affidavit that she received a copy of the Program document “after she began to work at BHS.” The Program document provides, in pertinent part:

“Arbitration is a substitute for a traditional lawsuit. Arbitrations are heard and decided by an independent arbitrator who is chosen by both sides. After listening to the employee and BHS present their positions and after reviewing all the evidence presented, the arbitrator has the authority to award the employee and BHS any relief that they would be able to obtain in a court room, including money damages where appropriate. The arbitrator’s decision is final and binding upon both the employee and BHS.
“The [P]rogram is binding on all employees. This means that your decision to accept employment or continue employment after receiving notice of this Program, will mean that you have agreed to and are bound by the terms of this Program. If you remain employed or accept employment, this document constitutes a binding contract between you and BHS. Likewise, the terms of this Program are binding on BHS. This Program precludes an employee and BHS from going to court to have disputes heard by a judge or jury.
“This Program is part of the employment relationship between an employee and BHS. It is not, however, a guarantee that employment will continue for any specified period of time or end only under certain conditions. Nothing contained in this [PJrogram limits in any way an employee’s right to resign from employment with BHS at any time for any reason or BHS’s right to terminate employment at any time for any reason. “B. SCOPE OF THE ARBITRATION
PROCEDURE
“By remaining or becoming employed after receiving notice of this Program, you consent to resolution by arbitration of any dispute, whether or not arising out of your employment (including your application, your hiring, or your failure to be hired) or its termination, that you may have with or against BHS or that BHS may have with or against you, except as otherwise provided herein. BHS also consents to resolution, by arbitration, of all disputes between you and BHS, except as otherwise provided herein.
“The disputes covered by this Program include, but are not limited to, all claims and controversies including, but not limited to, claims for wages or other compensation due; ... claims for retaliation for filing or prosecuting workers’ compensation claims; claims for benefits (except where an employee benefit or pension plan specifies that its claims shall result in an arbitration procedure different from this one)....
“Excluded from this Program are claims by employees for workers’ compensation (excluding retaliation claims) or unemployment compensation ....
“1. Interstate Commerce. By applying for employment or by becoming or remaining employed with BHS, you agree that BHS engages in transactions involving interstate commerce and that your employment involves such commerce.”

(First emphasis supplied; second emphasis original.) On November 20, 1997, Mack signed a document entitled “Acknowledgment of Receipt of BHS Dispute Resolution Program,” which stated, in pertinent part:

“I acknowledge receipt of the BHS Dispute Resolution Program document. I understand I am obligated to read this document as it governs my continued employment and all future legal disputes between me and Baptist Health System as defined in the document. I understand that it is my responsibility to consult my Human Resource director if I have any questions.”

(Emphasis original.) As attested to by Cindy Nicholson, the director of human resources at Shelby Medical Center, who is “familiar with the day-to-day operations of Shelby Medical Center and [Shelby Ridge],” meetings were held with the employees to explain the terms of the Program and to ensure that BHS employees were aware of the Program and the arbitration provision contained in the Program document. Nicholson stated that notices regarding the Program were included in every BHS employees’ paycheck. Mack continued her employment with BHS after her receipt and acknowledgment of the terms of the Program document.

Mack asserts in her complaint that, on November 4, 1998, while continuing in her employment with BHS as a nurse and while acting in the course and scope of that employment, she suffered an “on-the-job injury.” As a result of her injury, Mack was partially disabled for a period of time and underwent medical treatment. Mack alleges in her complaint that BHS “failed and/or refused” to pay her workers’ compensation benefits. Thereafter, on June 19, 2001, while still continuing to work at Shelby Ridge, Mack allowed two nursing assistants to leave the facility for personal purposes during working hours. They remained absent for approximately an hour, which was in excess of the 30-minute break permitted by Shelby Ridge. Mack did not to report the employees’ extended absences to her superiors. On June 25, 2001, BHS terminated Mack’s employment at Shelby Ridge because it determined that Mack’s action of not reporting the nursing assistants’ prolonged absences left the facility “dangerously understaffed.” Mack argues that the termination was in retaliation for her workers’ compensation claim against BHS. The record shows that Mack was eventually rehired by BHS; in BHS’s brief filed with this Court on May 23, 2002, BHS states that Mack was employed at Shelby Baptist Medical Center.

The trial court’s thoughtful nine-page order denying BHS’s motion to stay and to compel arbitration expressed its rationale as follows:

“In the earlier case of Ex parte McNaughton, 728 So.2d 592 (Ala.1998), the Court again turned to the exact language contained in the acknowledgment to determine if a binding agreement to arbitrate had been created through terms set forth in an employee handbook. The Court quoted the terms of the acknowledgment as follows:

“ ‘The acknowledgment form contains the following pertinent language:
“ ‘ “At-Will Employment
‘ “I understand that the provisions in this Handbook are guidelines and, except for the provisions of the Employment Arbitration Policy, do not establish a contract or any particular terms or conditions of employment between myself and [United].
“ ‘ “I understand that the employment relationship is ‘at mil’ and is based upon the mutual consent....
“ ‘ “Internal Dispute Resolution/Employment Arbitration Policy. ...
“‘“These policies provide the opportunity for prompt and objective review of employment concerns. I understand that arbitration is the final, exclusive and required forum for the resolution of all employment related disputes which are based on a legal claim. I agree to submit all employment related disputes based on a legal claim to arbitration under [United’s] policy.” (Emphasis added [in McNaughton.])
“ ‘McNaughton argues that because of the “at-will” nature of her employment and because of the provision expressly stating that the policies contained in the employee handbook are not binding, this Court should not construe the arbitration policy incorporated into the acknowledgment form to be a binding agreement. We disagree.’ 728 So.2d at 595.
“The Court found that the employee’s signature to this acknowledgment formed a binding agreement to arbitrate because, though the employment remained ‘at will,’ the acknowledgment specifically exempted the provisions of the employment arbitration policy as the acknowledgment disclaimed the existence of other terms that could be construed as a contract of employment. Citing as authority Kelly v. UHC Management Co., 967 F.Supp. 1240 (N.D.Ala.1997), the Court wrote:
“ ‘... [T]he United States District Court for the Northern District of Alabama held that an acknowledgment form signed upon receipt of an employee handbook and that contained language identical to the language in the acknowledgment form signed by McNaughton created a binding contract to arbitrate employment disputes.... Just as with the acknowledgment form signed by McNaughton, the acknowledgment form signed in Kelly, [967 F.Supp. at 1243], provided: “I agree to submit all employment related disputes based on a legal claim to arbitration.... ” Just as with McNaughton’s promise to arbitrate under United’s arbitration policy, the employees’ promise in Kelly, id. at 1260, to arbitrate under the employer’s arbitration policy was supported by the consideration of at-will employment. The district court in Kelly held that the acknowledgment form signed by the employees created a binding agreement to arbitrate their claims against the employer.’ 728 So.2d at 596.
“In Ex parte Beasley, [712 So.2d 338 (Ala.1998),] the Court reached the opposite result, namely, that no binding agreement to arbitrate existed for the at-will employee where the arbitration clause appeared in an employee handbook. Again, the case turned on the content of the acknowledgment form that the Plaintiff-employee actually signed. Beasley is very similar to the case sub judice, in that plaintiff was a hospital employee, employed with Brookwood Hospital owned by Tenet Healthcare, Inc. Plaintiff was already employed when Tenet initiated a dispute resolution program in 1995, whereby new and existing at-will employees were asked to agree to resolve employment disputes by arbitration. The policy was executed, as in the case before the Court, by distributing the plan in an employee handbook and requiring the employee to execute an acknowledgment form. The wording of the form in Beasley being material to the inquiry of whether a binding agreement was thus created is as follows:
“ ‘... [T]he unsigned acknowledgment form in the standard employee handbook submitted by Brookwood with its mandamus petition contains the following pertinent language:
“ ‘ “I have received my copy of the ... Employee Handbook which outlines my privileges and obligations ....
“ ‘ “I understand also that this handbook highlights company policies. ... No written agreement concerning employment terms or conditions is valid unless signed by a facility executive director ... and no written statement or agreement in this handbook concerning employment is binding, since provisions are subject to change, and as all ... employees are employed on an ‘at-will’ basis....
“ ‘ “I understand [Brookwood] makes available arbitration for resolution grievances. I also understand that as a condition of employment and continued employment I agree to submit any complaints to the [Fair Treatment Process] and agree to abide by and accept the final decision of the arbitration panel as ultimate resolution of my complaint(s) for any and all events that arise out of employment or termination of employment.” (Emphasis added [in Beasley].)’ 712 So.2d at 340.
“Beasley argued that, by its own terms, the arbitration clause contained in the handbook was not a binding agreement because it explicitly so states. Though Brookwood Hospital cited the Court to Patterson v. Tenet Healthcare, Inc., 113 F.3d 832 (8th Cir.1997), as authority that the arbitration clause was nevertheless enforceable, the Court distinguished Patterson, and wrote:
“ ‘The arbitration clause referred to [in Patterson], however, was the arbitration clause in the acknowledgment form, not the arbitration provision in the body of the employee handbook. ...
“‘The acknowledgment form contained in Brookwood’s standard employee handbook would have created a binding obligation to arbitrate under Patterson if Beasley had signed that form; however, she did not sign that form. Instead, the evidence submitted by Brookwood shows that Beasley signed an acknowledgment form that is similar to the standard form, but that does not contain the arbitration clause. Absent Beasley’s signature on a document that contains a valid arbitration clause, we cannot hold that she agreed to arbitrate her employment claims against Brookwood. See First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995).’ (Emphasis added.) 712 So.2d at 340-341.
“Based upon the hereinabove cited authority[,] the Court finds that before an at-will employee can be said to have waived his or her right to a jury trial on the issue of retaliatory discharge, by entering into an agreement of binding arbitration as an alternative forum for resolution of such disputes, the employee must explicitly agree to waive the right. As the authority from the Alabama Supreme Court clearly indicates, whether such a binding agreement to arbitrate is created or not depends upon the precise language contained in the document that the employee is asked to execute, namely, the acknowledgment form.
“The acknowledgment form submitted to the Court in this case does not at any point make reference to or use the word ‘arbitrate’ nor does it employ the words T understand’ or T agree.’ Rather, the form states that the employee, executing the document, acknowledges receipt of the handbook; and that she understands that if she has any questions she is to consult with her Human Resources director. At no point does the acknowledgment form state that the employee, by executing the form, understands or agrees to submit her employment disputes to binding arbitration.
“As the Court does not find from the submissions that Defendant has established that a written agreement to arbitrate exists, the Court, therefore, does not find it necessary to address the issues regarding whether or not the agreement substantially affects interstate commerce, since without a written agreement these issues were not reached.”

Critical to the curtailed scope of the review we undertake is this final paragraph quoted above:

“As the Court does not find from the submissions that Defendant has established that a written agreement to arbitrate exists, the Court, therefore, does not find it necessary to address the issues regarding whether or not the agreement substantially affects interstate commerce, since without a written agreement these issues are not reached.”

BHS contends that the Program document constitutes a written agreement to arbitrate sufficient to compel arbitration. In support of its contention, BHS relies on Hoffman-La Roche, Inc. v. Campbell, 512 So.2d 725 (Ala.1987), for the proposition that a valid contract to arbitrate any disputes between it and Mack arose when Mack, having received a copy of the Program document and signed a form acknowledging receipt of and her obligation to read the Program document, continued her employment with BHS. This continued employment, according to BHS, constituted her knowing acceptance of the unilateral offer contained in the Program document of continued employment in consideration of her agreement to be bound by the arbitration provisions in the document.

In Hoffman-La Roche, a former employee sued his employer alleging wrongful discharge. The plaintiff argued that an employee handbook issued by his employer created a unilateral contract that modified the initial at-will employment contract. The plaintiff further argued that, as a result of that modification, the employer could terminate the plaintiffs employment only as prescribed by the terms of the handbook. Under the circumstances in Hoffman-La Roche, this Court held that the employee handbook did create a unilateral contract modifying the at-will employment agreement. After an extensive analysis of various legal authorities discussing the principles of contracts in the context of employment agreements, this Court stated:

“[W]e see no reason why a policy contained in an employee manual issued to an employee cannot become a binding promise once it is accepted by the employee through his continuing to work when he is not required to do so. Such a performance clearly provides any consideration necessary to the contract. The fact that the promise is communicated to the employee through the medium of a handbook, rather than by some other means, is simply of no consequence.
“Of course, to become a binding promise, the language used in the handbook must be specific enough to constitute an actual offer rather than a mere general statement of policy. See Pine River [State Bank v. Mettille, 333 N.W.2d 622, 626 (Minn.1983) ]. However, whether a proposal is meant to be an offer for a unilateral contract is determined by the outward manifestations of the parties, rather than by their uncommunicated beliefs. See Mayo v. Andress, 373 So.2d 620 (Ala.1979)_ Indeed, if the employer does not wish the policies contained in an employee handbook to be construed as an offer for a unilateral contract, he is free to so state in the handbook.”

512 So.2d at 733-34 (footnote omitted). The Hoffman-La Roche Court also established the analysis to determine whether the language contained in an employee handbook is sufficient to constitute an offer to create a binding contract. Specifically, this Court stated:

“The existence of such a contract is determined by applying the following analysis to the facts of each case: First, the language contained in the handbook must be examined to see if it is specific enough to constitute an offer. Second, the offer must have been communicated to the employee by issuance of the handbook, or otherwise. Third, the employee must have accepted the offer by retaining employment after he has become generally aware of the offer. His actual performance supplies the necessary consideration.”

512 So.2d at 735. .

Accordingly, we consider whether the trial court correctly determined that the acknowledgment was not sufficient to bind Mack to arbitrate her retaliatory-discharge and wrongful-termination claims.

Under Alabama law,

“1 “[Arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” ’ AT & T Techns., Inc. v. Communication Workers of America, 475 U.S. 643, 648, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986) (quoting United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960)); and see Ex parte Lovejoy, 790 So.2d 933 (Ala.2000). ‘ “When deciding whether parties agree to arbitrate a certain matter (including arbitrability) courts generally ... should apply ordinary state-law principles that govern the formation of contracts.” ’ Oakwood Mobile Homes, Inc. v. Barger, 773 So.2d 454, 459 (Ala.2000) (quoting First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995)). ‘ “The requisite elements of [a contract] include: an offer and an acceptance, consideration, and mutual assent to terms essential to the formation of a contract.” ’ Ex parte Grant, 711 So.2d 464, 465 (Ala.1997) (quoting Strength v. Alabama Dep’t of Finance, Div. of Risk Mgmt., 622 So.2d 1283, 1289 (Ala.1993)). ‘Assent must be manifested by something. Ordinarily, it is manifested by a signature. [However], [a]ssent may be manifested by ratification.’ Southern Energy Homes, Inc. v. Hennis, 776 So.2d 105, 108 (Ala.2000) (citing Southern Energy Homes, Inc. v. Harcus, 754 So.2d 622, 625 (Ala.1999)), wherein this Court remanded the case to the trial court for a finding of whether the purchasers of a manufactured home ratified and thereby accepted an arbitration provision by accepting repairs pursuant to a warranty containing the arbitration provision.”

Ex parte Cain, 838 So.2d 1020, 1026-27 (Ala.2002). See also Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Kilgore, 751 So.2d 8, 11 (Ala.1999) (“This Court has held that the object of a signature on a contract is to show mutuality and assent, and that mutuality and assent can be manifested in ways other than a signature.”). In the instant case, the language contained in the Program document provides that an employee’s continued employment at BHS “will mean” that he or she agrees to and is bound by the terms of the Program document, and that the document constitutes a binding contract between the employee and BHS if the employee continues to be employed or accepts employment at BHS. The record also shows that Mack continued her employment with BHS upon her receipt of the Program document and for an extended period thereafter.

Mack argues that because the acknowledgment form she signed did not contain an arbitration provision she is not bound to arbitrate her claims against BHS, pursuant to this Court’s decision in Ex parte Beasley, 712 So.2d 338 (Ala. 1998). As aptly noted in the trial court’s order, the facts in Beasley are in many respects comparable to the facts in this case; however, they can be distinguished on a pivotal point. In Beasley, as in the present case, the employee, Beasley, was already employed by her employer when the employer adopted a new employment policy. That policy required all employees “as a condition of employment, to agree to submit employment claims” against the employer to binding arbitration. 712 So.2d at 339. Each employee was issued an employee handbook that included the arbitration provisions; the employer required each employee to acknowledge receipt of the handbook by signing an acknowledgment form. Beasley’s “continued employment” was conditioned on her acknowledging the receipt of the new standard employment handbook. The “acknowledgment form in the standard employee handbook” contained the statement, to be affirmed by the signature of the particular employee, that “I also understand that as a condition of employment and continued employment I agree to submit any complaints to [arbitration] and agree to abide by and accept the final decision of the arbitration panel .... ” 712 So.2d at 340. Although Beasley did not sign that acknowledgment form, she did sign an acknowledgment form that contained language also present in the “acknowledgment form in the standard employee handbook,” acknowledging by her signature that “no written statement or agreement in this handbook concerning employment is binding.” 712 So.2d at 340 (emphasis omitted). The Beasley Court concluded that this statement “vitiate[d] the operative effect of the arbitration provision contained in the standard employee handbook.” 712 So.2d at 340. The Court expressed the opinion, however, that “[t]he acknowledgment form contained in [the employer’s] standard employee handbook would have created a binding obligation to arbitrate ... if Beasley had signed that form; however, she did not sign that form. Instead ... Beasley signed an acknowledgment form that is similar to the standard form, but that does not contain the arbitration clause.” 712 So.2d at 341. In that regard, the language of the acknowledgment form in Beasley is comparable to the language in the Program document in the present case, pursuant to which the employee continuing in employment agrees to be bound by the terms of the Program. Thus, we conclude that Mack, by continuing her employment with BHS subsequent to her receipt of the Program document, expressly assented to the terms of the Program document and is therefore bound by the arbitration provision contained in that document.

Thus, we conclude that, contrary to the finding of the trial judge, a written agreement to arbitrate did exist, and we must reverse his order denying BHS’s motion to stay and to compel arbitration premised solely on the ground that a written agreement to arbitrate did not exist. Given that the trial judge expressly limited his holding to the finding that no written agreement to arbitrate existed and expressly declared that he did “not find it necessary to address the issues regarding whether or not the agreement substantially affects interstate commerce, since without a written agreement these issues [are] not reached,” we do not ourselves address those issues. As Mack reminds us in her brief, urging that we go no further than addressing the exclusive holding of the trial court, “[appellate courts generally will not review questions not decided by the trial court.”

Accordingly, having considered the one issue decided by the trial court, we reverse the trial court’s order premised exclusively on its holding that no written agreement to arbitrate existed and remand this case to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED WITH DIRECTIONS.

HOUSTON, SEE, LYONS, BROWN, WOODALL, and STUART, JJ„ concur.

MOORE, C.J., and JOHNSTONE, J., dissent.

JOHNSTONE, Justice

(dissenting).

I respectfully dissent. Lisa Mack did not sign any agreement to arbitrate and she did not accept any promise or offer.

Hoffman-La Roche, Inc. v. Campbell, 512 So.2d 725 (Ala.1987), does not support the claim of BHS that the parties contracted to arbitrate. Unlike the employee handbook in Hoffman-La Roche, the BHS “Program” did not promise or offer Mack any safeguard for her employment but expressly negated any such promise or offer. Indeed, the Program did not promise or offer Mack any benefit at all. Therefore, unlike the employee in Hoffman-La Roche, Mack did not accept any promise or offer and thereby form any contract.

This case is indistinguishable from Ex parte Beasley, 712 So.2d 338 (Ala.1998), which held that the employee’s signing an acknowledgment form acknowledging receipt of an employee handbook but not containing an arbitration agreement did not bind the employee to the arbitration provisions in the handbook itself. Not even the dictum in Ex parte Beasley supports the claim of BHS. The Beasley die-tum says that, if the employee had signed an acknowledgment form which expressly stated that the employee agreed to arbitrate, she would have been bound to arbitrate. The acknowledgment form signed by Mack contains no such agreement. The only undertaking by Mack in the acknowledgment form is that she “understand^ she is] obligated to read this document ... [and] that it is [her] responsibility to consult [her] Human Resources director if [she has] any questions.” (Emphasis added.)

      . DIR is not a party to this appeal.

      . Nicholson stated that Shelby Medical Center is "part” of BHS.

      . The record does not show what events took place between Mack's November 1998 injury and this incident.

      . Mack testified before DIR that the two employees she allowed to leave Shelby Ridge for personal purposes were entitled to a 30-min-ute break. Thus, we infer that a 30-minute break is consistent with the policies of Shelby Ridge and/or BHS.


source: Caselaw Access Project

author: PITTMAN, Judge

license: Public Domain

text:
    G.W. McCORMICK, Jr., v. Agnes CONGLETON and Douglas M. Gatwood, as attorney in fact for Agnes Congleton.
    2010988 and 2020075.
    Court of Civil Appeals of Alabama.
    April 18, 2003.

      William W. Watts III of Hudson & Watts, L.L.P., Mobile, for appellant.
    Charles R. Godwin and Timothy J. God-win, Atmore, for appellees.
   PITTMAN, Judge

G.W. McCormick, Jr., appeals from the denial of two postjudgment motions following the trial court’s entry of a default judgment in a property dispute between McCormick and his sister, Agnes Congle-ton.

The record indicates that during the latter part of 1999, following the death of her son in July 1999, Congleton, who was then a 95-year-old widow without surviving children, began making arrangements for her nephew, Douglas M. Gatwood, to handle her personal affairs. Congleton decided to deed to Gatwood some real property she had received from her husband’s estate. Around the same time, in November 1999, McCormick, who lived in Missouri, traveled to Alabama to visit Congleton and a cousin. The evidence indicated that that visit was the first time the siblings — Con-gleton and McCormick — had seen each other in over 20 years.

During that visit, McCormick scheduled two appointments for Congleton to meet with Everette Price, a local attorney; McCormick paid for both appointments. Price’s affidavit indicates that during those visits Congleton had told him that she wanted to deed some of her land to Gat-wood and McCormick. Price prepared two deeds, one conveying 205 acres of unimproved land to McCormick and one conveying four and one-half acres, which included Congleton’s house, to Gatwood. McCormick recorded both deeds and returned to Missouri.

One month later, Congleton attempted to convey to Gatwood the same land she had earlier conveyed by deed to McCormick. Congleton asked McCormick to re-convey the land to her; after he refused, Congleton and Gatwood, as attorney in fact for Agnes Congleton, sued McCormick, seeking to have the deed conveying the 205 unimproved acres of property set aside. The complaint, filed on February 10, 2000, also alleged counts of fraud and undue influence against McCormick and requested that a constructive trust be established for the benefit of Congleton. On April 25, 2000, McCormick filed an answer generally denying Congleton and Gat-wood’s claims. Congleton and Gatwood filed a motion for a summary judgment which was denied, and the case was set for trial.

The trial was held on April 8, 2002. McCormick was not present, but his attorney was present. Congleton and Gatwood requested that a default judgment be entered. The trial court granted the request and conducted a default hearing pursuant to Rule 55, Ala. R. Civ. P. During this proceeding, Congleton and Gatwood asked only that the trial court set aside the conveyance of land to McCormick. On April 12, 2002, the trial court entered a default judgment declaring the deed from Congle-ton to McCormick to be void. The judgment ordered that the deed be expunged from the Escambia County probate records.

On the same day the default judgment was entered, McCormick, through his attorney, moved to set aside the default judgment; the trial court denied McCormick’s motion without a hearing on May 7, 2002. The denial of that motion forms the basis of the first appeal in this case (No. 2010988). McCormick appealed to the Alabama Supreme Court, which transferred the appeal to this court, pursuant to § 12-2-7(6), Ala. Code 1975.

At some point after the entry of the default judgment, McCormick terminated his relationship with his attorney. Subsequently, on July 25, 2002, this court granted McCormick leave to file a motion for relief from judgment pursuant to Rule 60(b), Ala. R. Civ. P. As grounds for the Rule 60(b) motion, McCormick asserted that the attorney who had filed the first postjudgment motion had a conflict of interest and did not properly document McCormick’s excusable mistake or neglect in failing to appear at trial. The second postjudgment motion was accompanied by the following exhibits: the transcript of the April 8, 2002, proceeding; an affidavit of McCormick stating that he had received a facsimile transmission from his attorney forwarding a stipulation that incorrectly identified the court date as May 8 instead of April 8; copies of McCormick’s April telephone bill showing his attempts to telephone his former attorney to verify the court date; a copy of the final letter sent to McCormick by his former attorney that McCormick received on April 8; and a copy of an affidavit executed by the attorney who drafted the two deeds for Congle-ton in November.

Congleton and Gatwood responded to McCormick’s Rule 60(b) motion and argued that McCormick’s motion merely reiterated the grounds raised in his post-judgment motion and argued that his allegations regarding confusion of the date of trial and the former attorney’s conflict of interest did not require that the default judgment be set aside. The trial court denied McCormick’s Rule 60(b) motion on October 8, 2002, prompting another appeal. (No. 2020075) This court granted a motion to consolidate the two appeals pursuant to Rule 3(b), Ala. R.App. P.

The decision by a trial court to grant or to deny a motion for relief from a judgment rests within the sound discretion of the trial court. See Wal-Mart Stores, Inc. v. Green, 740 So.2d 412 (Ala.Civ.App.1999). This court looks to the grounds and matters presented in support of the motion to determine if there was an abuse of that discretion in granting or denying the motion. See Carpenter v. Newman, 853 So.2d 1002 (Ala.Civ.App.2002).

In his first postjudgment motion filed on April 12, 2002, McCormick asserted as a reason for his failure to appear at trial that he had mistakenly or negligently relied on an unsigned, draft stipulation sent via facsimile to him by his attorney on April 1, 2002, that had misrepresented the trial date as May 8 instead of April 8. That motion contained exhibits including a copy of the facsimile and McCormick’s affidavit averring his erroneous reliance on the trial date contained in the facsimile and his assertion that he had been unable to contact his attorney to verify the date.

This court has held that a motion from relief from a default judgment, filed within 30 days of the entry of that judgment, should be treated as a Rule 55(c) motion to set aside the default judgment, notwithstanding references in that motion to Rule 60. See Englebert v. Englebert, 791 So.2d 975 (Ala.Civ.App.2000). Thus, .McCormick’s first postjudgment motion was actually a Rule 55(c) motion.

“[D]efault judgments are not favored, and, while the trial court has discretion to grant such judgments, the exercise of discretion should be resolved in favor of the defaulting party where there is doubt as to the propriety of a default judgment.”

Hutchinson v. Hutchinson, 647 So.2d 786, 788 (Ala.Civ.App.1994). In determining whether to set aside a default judgment, a trial court must apply the three-factor analysis set forth by our Supreme Court in Kirtland v. Fort Morgan Auth. Sewer Serv. Inc., 524 So.2d 600 (Ala.1988). The three factors are (1) whether the defaulting party has a meritorious defense, (2) whether the nondefaulting party will be unfairly prejudiced if the default judgment is set aside, and (3) whether the default judgment was a result of the defaulting party’s own culpable conduct.

On appeal, McCormick first asserts that the trial court erred in refusing to set aside the default judgment upon the filing of his Rule 55(c) motion' — his first post-judgment motion — because, he contends, he made a sufficient showing under Kirt-land to have the default judgment set aside. McCormick also argues that the trial court erred in failing to grant relief from the default judgment in response to his Rule 60(b) motion — his second post-judgment motion — wherein McCormick alleged that the original attorney had a conflict of interest that precluded his filing a proper and accurate first postjudgment motion.

“Although a trial court has broad discretion when deciding whether to grant a motion to set aside a default judgment, that discretion is not unlimited.” Aldridge v. Hamilton, 708 So.2d 194, 195 (Ala.Civ.App.1997) (citing Kirtland, 524 So.2d at 604).

“First, the trial court must presume that cases ‘should be decided on the merits whenever practicable.’ The preservation of a litigant’s right to defend on the merits is paramount, and, therefore, outweighs the promotion of judicial economy. Second, the trial court must apply a three-factor analysis [established in Kirtland] in deciding whether to grant a motion to set aside a default judgment.”

Aldridge v. Hamilton, 708 So.2d at 195 (citations omitted).

Under Kirtland, McCormick must first show the existence of a meritorious defense. To do so, the defaulting party must satisfy the trial court that he or she is prepared to present a plausible defense; however, he is not required to show that he would necessarily prevail at a trial on the merits. Kirtland, 524 So.2d at 605.

Price’s affidavit, which states that Con-gleton was in full possession of her faculties, that she knew the extent of her holdings, and that she knew the proposed grantees of her property when she deeded the land to McCormick, amounts to a plausible defense to all four counts of the complaint that would, if believed by the trier of fact, defeat Congleton and Gat-wood’s claims. We conclude that Price’s affidavit, together with McCormick’s own deposition testimony that Congleton conveyed the land to him “simply because I am her brother and she wanted me to have it” amount to a “plausible defense” to the allegations of the complaint, which generally allege coercion and undue influence in the procurement and execution of the deed at issue. The first Kirtland factor, then, militates in favor of a trial on the merits.

Our Supreme Court recently discussed the second Kirtland factor, i.e., whether the nonmovant will be unfairly prejudiced by setting aside the default judgment. In Phillips v. Randolph, 828 So.2d 269 (Ala.2002), that court articulated the burden that the defaulting party must meet. “We hold that when a party files a motion to set aside a default judgment, the movant has the initial burden of making a prima facie showing that the [nonmovant] will not be unfairly prejudiced if the default judgment is set aside.” Phillips, 828 So.2d at 278. Our Supreme Court has also stated that “ ‘[m]ere delay or increased cost is not sufficient to justify a refusal to set aside a default judgment.’ ” Summit Photographix, Inc. v. Scott, 763 So.2d 956, 960 (Ala.2000)(quoting Ex parte Gilliam, 720 So.2d 902, 906 (Ala.1998)). McCormick argues that the setting aside of the default judgement will merely delay any expected sale of the land in question; he also refers us to an affidavit he filed in which he agrees that if the default judgment is set aside, the request for money damages Congleton waived at the hearing will be reinstated. Furthermore, in the same affidavit, McCormick stated his intention not to convey, encumber, or transfer the disputed property pending full disposition of the issues at trial. Finally, the parties have completed discovery, and the case awaits only the presentation of evidence at this point. We conclude that the second Kirtland factor militates in favor of a trial on the merits.

In relation to the third Kirtland factor, our Supreme Court recently stated if a judgment is

“ ‘ “entered against a party in his absence, before he can be relieved of the judgment he must show that it was the result of a mistake or inadvertence which reasonable care could not have avoided, a surprise which reasonable precaution could not have prevented, or a negligence which reasonable prudence could not have anticipated.” ’ ”

Triple D Trucking, Inc. v. Tri Sands, Inc., 840 So.2d 869, 874 (Ala.2002) (quoting Phillips v. Randolph, 828 So.2d 269, 278 (Ala.2002)), quoting in turn DaLee v. Crosby Lumber Co., Inc., 561 So.2d 1086, 1091 (Ala.1990) (quoting other cases) (emphasis added). McCormick forcefully argues that he was confused about the trial date because one week before trial, he received a facsimile containing a draft stipulation that referred to an incorrect trial date. Although the record indicates that McCormick also had received a docketing statement from the trial court and a letter from his attorney in March, both of which stated the correct trial date, the typographical error in the fax sent by his own attorney exactly one week before trial may reasonably have caused confusion on McCormick’s part. The situation was compounded by the fact that McCormick’s lawyer either was not in her law office between April 2 and April 6 (as evidenced by copies of McCormick’s telephone records) or, if present, chose not to return any of McCormick’s telephone calls before the case went to trial on April 8, 2002.

In Summit Photographix, Inc. v. Scott, supra, our Supreme Court, discussing the third prong of Kirtland, noted that

“ 'Conduct committed willfully or in bad faith constitutes culpable conduct for purposes of determining whether a default judgment should be set aside. Negligence by itself is insufficient’ Kirtland [v. Fort Morgan Auth. Sewer Serv., Inc.], 524 So.2d [600] at 607 [(Ala.1988)]. Willful and bad faith conduct is conduct characterized by incessant and flagrant disrespect for court rules, deliberate and knowing disregard for judicial authority, or intentional nonresponsiveness.’ 524 So.2d at 608. Finally, ‘a defaulting party’s reasonable explanation for inaction and noncompliance may preclude a finding of culpability.’ 524 So.2d at 608.”

763 So.2d at 960 (emphasis added). In Sawyer v. Perkins, 717 So.2d 432 (Ala.Civ.App.1998), the defaulting party admitted receiving notice of the trial date, but failed to attend trial. In reversing the trial court’s refusal to set aside its default judgment, this court concluded that “[n]othing in the record convinces us that the [defaulting party’s] failure to appear was in flagrant disregard of the court’s authority or its rules.” Sawyer, 717 So.2d at 434. In a different type of real property case, one involving fraud and misrepresentation, this court stated that

“ ‘if there is a dispute as to liability and damages, even avoidance of service ... is not sufficient grounds for the trial court to refuse to set aside a default judgment.’ ”

Aldridge v. Hamilton, 708 So.2d at 196 (quoting Rooney v. Southern Dependacare, Inc., 672 So.2d 1, 4 (Ala.1995)) (emphasis omitted).

Although McCormick was notified of the April 8, 2002, trial date, he was sent material that appeared to contradict those notices; he relied upon the later trial date after repeated telephone calls to his lawyer the week before trial went unanswered. We cannot say that that neglect or mistake on his part should prevent the matter from proceeding to trial; we conclude that the third Kirtlcmd factor militates in favor of a trial on the merits.

We reverse the trial court’s judgment denying McCormick’s Rule 55(c) motion, and remand the cause for the trial court to set aside the default judgment and for further proceedings consistent with this opinion. Because we have determined that the default judgment must be set aside, we do not reach any arguments raised by McCormick in his second issue, which concerns the denial of his Rule 60(b) motion.

REVERSED AND REMANDED.

YATES, P.J., and CRAWLEY and MURDOCK, JJ., concur.

THOMPSON, J., concurs in the result.

      . McCormick's lawyer told the trial judge on April 8, 2002, that although she had not spoken with her client in several weeks, he had been notified of the trial date.


author: CRAWLEY, Judge.

text:
    In the Matter of J.O.J., Jr. J.O.J., Sr. v. R.R.
    2020107 and 2020108.
    Court of Civil Appeals of Alabama.
    April 18, 2003.
    Lisa M. Smith, Legal Services of Metro Birmingham, Birmingham, for appellant J.O.J., Sr.
    Janice Pierce Groce, Birmingham, for appellee R.R.
   CRAWLEY, Judge.

J.O.J., Sr. (“the biological father”), and R.R. (“the mother”) had a five-year relationship; a child, J.O.J., Jr., was born of that relationship on June 14, 1994. Although J.O.J. was named after his biological father, no father was listed on the birth certificate. The mother and the biological father resided together with the child for approximately five years; after that time, from what we can discern from the record, the child continued to reside with the biological father.

The biological father received public assistance from the State of Alabama, and, on September 26, 2000, the State and the father filed a complaint to determine paternity and to set child support. This petition was dismissed for failure of service. The mother filed, on April 6, 2001, a dependency petition in which she alleged that the child’s custody was the subject of controversy, that the child lived with the biological father, and that she wanted to have the child returned to her custody. The State and the biological father filed a second petition on July 30, 2001, to establish paternity and child support. The child-support case and the dependency case were consolidated.

The trial court awarded temporary custody of the child to the biological father on January 11, 2002. The case was set for another hearing on June 19, 2002, to finally decide the issue of custody. At that hearing, the mother argued that the juvenile court did not have jurisdiction to entertain the biological father’s request for a paternity determination because she was married to C.R. from September 1984 to May 2001, and the child was born during that period; thus, she said, pursuant to Ala.Code 1975, § 26-17-5(a)(l), C.R. was the presumed father and the biological father lacked standing to pursue his paternity claim. See Ex parte Presse, 554 So.2d 406 (Ala.1989). The juvenile court agreed, and it set aside its temporary order of custody and child support and dismissed the father’s petition. The father appealed to the Jefferson Circuit Court, which transferred the appeal to this court, pursuant to Rule 28(D), Ala. R. Juv. P., because, according to its transfer order, it concluded that only questions of law were involved and that, purportedly pursuant to Rule 28(A)(1)(b), Ala. R. Juv. P., this court had jurisdiction over the appeal.

Rule 28(A) addresses when an appeal directly to an appellate court is appropriate. Rule 28(A)(1)(a) permits a direct appeal to an appellate court if the record is certified as adequate and the right to a jury trial has either been exercised or waived by all parties. No certification that the record on appeal is adequate appears in the record; nor does a waiver of the right to a jury trial appear in the record. See B.T.D. v. T.L.C.H., 585 So.2d 96 (Ala.Civ.App.1991) (transferring appeal to the circuit court for a trial de novo where the record did not contain a waiver of the right to a jury trial in an appeal of a paternity proceeding pursuant to the Alabama Uniform Parentage Act).

Rule 28(A)(1)(b) permits a direct appeal to an appellate court when “[t]he parties stipulate that only questions of law are involved and the juvenile court certifies the questions.” The record does not contain a stipulation from the parties that only questions of law are involved in this case. Neither does the record contain a certification by the juvenile court of any questions of law. See W.R.C. v. State, 681 So.2d 1100, 1101 (Ala.Crim.App.1995) (transferring appeal to the circuit court for trial de novo because none of the requirements of either provision of Rule 28(A) was met). Instead, the record contains the circuit court’s determination in its transfer order that only questions of law are involved in this case. This court cannot accept jurisdiction over this appeal because none of the requirements of Rule 28(A) has been met. Therefore, we transfer this appeal to the Jefferson Circuit Court for appropriate disposition. See Rule 28(D), Ala. R. Juv. P.

APPEAL TRANSFERRED.

YATES, P.J., and THOMPSON, PITTMAN, and MURDOCK, JJ., concur.


author: YATES, Presiding Judge. PITTMAN, Judge,

text:
    Angelia Patricia KIRKLAND v. Tony Allen KIRKLAND.
    2010908.
    Court of Civil Appeals of Alabama.
    April 18, 2003.

      David K. Hogg, Dothan, for appellant.
    Submitted on appellant’s brief only.
   YATES, Presiding Judge.

On August 7, 2001, Angelia Patricia Kirkland (“the wife”) sued Tony Allen Kirkland (“the husband”), for a divorce, alleging adultery, incompatibility of temperament, and an irretrievable breakdown of the marriage. She requested custody of the parties’ two minor children, an equitable division of the marital estate and debts, child support, and an attorney fee. The wife also moved the court for an order pendente lite granting her exclusive use and possession of the parties’ marital home; exclusive use of the parties’ leased sport-utility vehicle; custody of the parties’ two minor children; and child support. The trial court, on August 9, 2001, entered an order pendente lite granting the wife exclusive use of the parties’ marital home and the Ford Expedition vehicle; awarding the wife custody of the parties’ children, and allowing the father visitation on alternating weekends; and ordering the circuit clerk to conduct a reference hearing for the purpose of determining the amount of child support to be paid pursuant to Rule 32, Ala. R. Jud. Admin.

On October 17, 2001, the court referee filed its reference report with the trial court. That report states:

“That from the testimony offered at said reference the referee finds as follows:
“(1) [The husband] quit his job approximately two months ago and was earning in excess of $2,500 per month as a welder and had been employed in this position for five years. He is presently employed farming at $6.00 per hour; however, since he is qualified as a welder, an income of $1,733 per month ($10.00 per hour) was imputed.
“(2) [The husband] should be required to pay the sum of $475 per month for the support of the minor children of the parties, pendente lite. Said payments are to begin immediately upon confirmation of this Report and continue on the 1st day of each month thereafter, pendente lite.”

The wife, on October 18, 2001, objected to the referee’s report, stating that the husband admitted that he had voluntarily quit a job where he earned in excess of $30,000 the previous year and that it was inequitable for the referee to impute income at a substantially lower rate. The trial court, on October 30, 2001, adopted and ratified the findings of the referee and ordered the husband to pay the wife $475 per month in child support pendente lite.

The wife moved the court on November 7, 2001, to find the husband in contempt for his failure to pay child support penden-te lite, as ordered. Following a hearing, the trial court, on December 17, 2001, found the husband in contempt and placed him in custody. The court ordered that the husband could purge himself of the contempt by paying $730 in child-support arrearage. The husband paid the $730 and was released from custody on December 18, 2001.

On February 7, 2002, the wife again moved the court to find the husband in contempt for his failure to pay child support pendente lite. The husband responded to the motion, contending that he had paid the wife $275 in January 2002, and $200 in February 2002; that he had secured new employment as a contractor installing hardware at a construction site; that he had requested a “draw” against his present salary in order to pay all child support owed; and that he anticipated being able to pay his child-support obligation in the future.

Following an ore tenus proceeding, the trial court, on February 25, 2002, entered the following order divorcing the parties:

“(1) That the said [wife] is forever divorced from the said [husband], because of incompatibility of temperament and irretrievable breakdown of the marriage.
“(3) That the [wife] pay the cost herein to be taxed for which execution may issue.
“(5) that joint custody of the parties’ minor children is granted with physical custody of the minor children being awarded to the [wife].
“(6) That the [husband] pay to the [wife] the sum of $636 as child support for the parties’ minor children, due and payable on the 5th of every month beginning March, 2002.
“(7) That the [husband] shall have reasonable visitation with the parties’ minor children.
“(8) That the [wife] is to carry health insurance on [the] parties’ minor children.
“(9) That the parties are to equally pay any health expenses not covered by insurance.
“(10) That the [wife] shall have the child exemptions for income tax purposes.
“(11) That the [wife] shall have the right, title, and possession of the parties’ marital residence and the furnishings therein and be held responsible for any indebtedness thereon.
“(12) That the [wife] shall be responsible for and assume the payments on the following debts:
“i. Parisian’s [department store] charge card[;]
“ii. Honda Accord [automobile] debt[;]
“iii. One-half Qh) of the Bank of America charge card debt[.]
“(13) That the [wife] shall have the right, title, and possession of the following:
“i. Honda Accord [automobile;]
“ii. Retirement with the State of Alabama[.]
“(14) That the [husband] shall be responsible for and assume the payments of the following debts:
“i. First USA Visa Card[;]
“ii. Discover Card[;]
“iii. Ford Motor Credit debt[;]
“iv. 1993 Chevrolet Silverado [truck] debt[;]
“v. Camper trailer debt[;]
“vi. One-half (]k) of the Bank of America charge card debt[.]
“(15) That the [husband] shall [have] the right title and possession to the following:
“i. 1993 Chevrolet Silverado truck[;]
“ii. Camper trailer[;]
“iii. Boat and motor in possession of the [wife.]
“(16) That the [husband] shall pay to the [wife’s] attorney a reasonable fee for his representation. The [wife’s] attorney is directed to submit affidavits to the Court as to the reasonableness of his fee.”

On March 4, 2002, the husband moved the court to alter or amend its judgment, requesting the court provide for a scheduled visitation. The trial court, on March 5, 2002, entered an order modifying its judgment and set a scheduled visitation for the husband. On March 13, 2002, the wife moved the court to alter, amend, or vacate its judgment, or, in the alternative, for a new trial. On March 15, 2002, the husband moved the court to find the wife in contempt for allegedly vandalizing the boat and motor awarded to him in the divorce judgment.

On March 22, 2002, the wife’s counsel submitted an affidavit regarding the reasonableness of his fee; the trial court, on April 4, 2002, entered an order awarding the wife’s counsel an attorney fee of $3,662.50. On April 23, 2002, the husband moved the court to alter or amend its judgment awarding the wife an attorney fee.

On April 24, 2002, the wife moved the trial court to find the husband in contempt for his failure to pay child support, the indebtedness on the Ford Expedition, and one-half of the Bank of America credit-card debt as ordered by the court in its divorce judgment. The court set all motions for a hearing on April 29, 2002. Following a hearing, the trial court, on April 29, 2002, denied all motions. The wife timely appeals; the husband has not provided this court with an appellate brief.

The wife first argues that the trial court erred in failing to grant the parties’ divorce on grounds of adultery. The parties were married in August 1987; two children were born of the marriage. The husband testified that he had sexual relations with a co-employee in March 2001 and that he and the co-employee were living together. The parties separated in April 2001 and attempted reconciliation on a number of occasions, to no avail. The husband testified that the parties’ marriage failed because of the wife’s incessant “fussing and nagging” that he was not earning enough money. The husband testified that the wife would come to his former place of employment and “harass” him.

The wife testified that she had done everything she could to save the marriage, “even biting [her] tongue when [she] knew he was doing wrong and still cheating with the other woman.” The wife testified that she had witnessed the husband and his friends using drugs and that their daughter had found drugs in the house on one occasion. The wife stated that the parties had been verbally abusive to each other.

This court has stated:

“[T]he trial court is not bound to grant a divorce upon a particular ground when another is charged in the complaint, if the evidence supports" the ground upon which the divorce is granted. In such ease it is immaterial that the evidence might equally have supported the ground of adultery.”

Blackwell v. Blackwell, 340 So.2d 448, 449 (Ala.Civ.App.1976) (citation omitted). The wife sought a divorce on the grounds of adultery, incompatibility of temperament, and an irretrievable breakdown of the marriage. The evidence would support a divorce on either the ground of incompatibility of temperament or an irretrievable breakdown of the marriage. Although the trial court did not grant the divorce on the ground of adultery, there is no indication in the record that the trial court failed to consider the fault of the husband in rendering its judgment. See Ex parte O’Daniel, 515 So.2d 1250 (Ala.1987)(holding that the trial court cannot choose to ignore evidence of adultery in dividing the marital property simply because it does not like adultery as a ground for divorce). Accordingly, we cannot say that the trial court erred in failing to grant the divorce on grounds of adultery.

The wife next argues that the trial court erred in failing to order the husband to pay court costs. The trial court has wide discretion in awarding costs pursuant to Rule 54(d), Ala. R. Civ. P. Denson v. Bear, Stearns Sec. Corp., 682 So.2d 69 (Ala.1996). The wife has failed to demonstrate how the trial court abused that discretion in faffing to order the husband to pay costs.

The wife next argues that the trial court erred in faffing to order the husband to pay retroactive child support. This court has stated:

“Given this state’s policy and law requiring a parent to support a minor child, we hold that a trial court may, in its discretion, award child support retroactive to the filing of the complaint for divorce where the trial court has failed to enter a pendente lite child support order for the period in which the parent had a duty to support the child but failed to provide that support.”

Brown v. Brown, 719 So.2d 228, 232 (Ala.Civ.App.1998). , The trial court entered a pendente lite support order in this case; therefore, the trial court did not abuse its discretion by not ordering the husband to pay child support retroactive to the filing of the complaint for divorce.

The wife next argues that the trial court erred in failing to find the husband in contempt for his failure to pay pendente lite support. Rule 28(a)(10), Ala. R.App. P., requires that an appellate brief contain “[a]n argument containing the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the cases, statutes, other authorities, and parts of the record relied on.” The wife has failed to comply with the requirements of Rule 28 because she has failed to cite any authority in support of this argument. Accordingly, we decline to address this issue. See Figures v. Figures, 646 So.2d 62 (Ala.Civ.App.1994).

The wife argues that the trial court erred in failing to order the husband to maintain a life insurance policy for the benefit of the parties’ children. Whether to order a party to maintain a life insurance policy for the benefit of minor children is within the discretion of the trial court. See Wylie v. Wylie, 794 So.2d 1174 (Ala.Civ.App.2001). The husband stated that he had a life insurance policy in place at the time the parties separated and that he had not canceled the policy. He testified that the wife was receiving the bills for the premium payments and that he believed that she had canceled the policy. The wife offered nothing to dispute this testimony. Accordingly, we cannot say that the trial court abused its discretion in faffing to order the husband to maintain an insurance policy on his life for the benefit of the parties’ children.

The wife next argues that the trial court erred in its division of the marital property and in failing to award, or to at least reserve the right to award, her periodic alimony. The husband testified that he had a ninth-grade education and that he was in good health. He was formerly employed as a hardware installer with H & H Doors and Hardware, Inc. He earned $36,887.62 in 1999 and $31,952.57 in 2000 while employed at H & H. The husband testified that he quit his employment with H & H because of the wife’s harassment. He stated that the harassment was affecting his work and that he was unable to concentrate on work.

At the time of the hearing, the husband was employed as a hardware installer at a construction site in Georgia. He testified that he earned $15 per hour and that he worked 35-40 hours per week; however, he also stated that the current construction job would be completed on March 5, 2002, and that he was not guaranteed of further employment after that date. The husband testified that he had started his own installation business approximately two weeks before the trial.

The wife testified that her health was good, but that she takes thyroid medication and an antidepressant. She stated that the pending divorce from the husband had placed a great deal of stress on her and that she has difficulty eating and sleeping. The wife stated that she had lost 80 pounds and attends a divorce-counseling class at a local church.

The wife has been employed by the State of Alabama at the Houston County Health Department for 16 years and earns $960 biweekly. She is vested in the State’s retirement plan. The wife stated that she receives free health insurance coverage through her employment, but that she pays $194 per month for insurance coverage for the parties’ children. The wife admitted that the husband had given her $1,500 from April 2001 until the pendente lite support was ordered by the court in October 2001. She testified that she had refused to accept partial payments of pendente lite support from the husband because she was under the false impression that he could not be held in contempt if he made partial payments. The wife stated that she had given the husband $1,024 since the parties separated. She stated that she and the children had been unable to maintain their standard of living since the parties separated.

The husband testified that the marital residence was worth approximately $45,000 and that the monthly mortgage payments were $531. The wife testified that the parties had refinanced the marital residence in July 2001 and that they had no equity in the house. She stated that the marital residence secured a debt of $50,000 and that the monthly mortgage payments were $524. The parties had jointly leased a Ford Expedition sport-utility vehicle. The wife testified that she had returned the Ford Expedition to the leasing company because she could not afford the monthly payments of $533. She testified that the leasing company had notified the parties by letter that $15,248 was owed on the leased Ford Expedition. The wife testified that she was currently driving a 2000 Honda Accord automobile and that her monthly payments on that vehicle were $380. The father testified that he had recently traded a 1972 GMC truck for a more dependable 1993 Chevrolet truck. He stated that he owed $3,500 on the Chevrolet truck.

The parties had acquired some credit-card debt during the course of the marriage. They had a Bank of America credit card with a debt of approximately $10,000; a First USA Visa credit card with a debt of approximately $10,000; a Discover credit card with a debt of $6,697; and a Parisian department store credit card. The wife testified that the Bank of America, Discover, and Parisian credit cards were in her name and that the husband was listed as an authorized user, and that the First USA Visa credit card was in the husband’s name and she was listed as an authorized user. The wife stated that she used the Bank of America card to purchase a boat, motor, and trailer for $4,800 during one of the attempted reconciliations. The record indicates that the credit cards were used for the benefit of the entire family.

In reviewing a judgment of the trial court in a divorce case where the trial court has made findings of fact based on oral testimony, we are governed by the ore tenus rule. Under this rule, the trial court’s judgment based on those findings will be presumed to be correct and will not be disturbed on appeal unless it is plainly and palpably wrong. Hartzell v. Hartzell, 623 So.2d 323 (Ala.Civ.App.1993). This presumption of correctness is based on the trial court being in the unique position of being able to observe the witnesses and to assess their demeanor and credibility. Hall v. Mazzone, 486 So.2d 408 (Ala.1986). Additionally, matters of alimony and property division rest soundly within the trial court’s discretion, and rulings on those matters will not be disturbed on appeal except for an abuse of discretion. Welch v. Welch, 636 So.2d 464 (Ala.Civ.App.1994). Matters of alimony and property division are interrelated, and the entire judgment must be considered in determining whether the trial court abused its discretion as to either of those issues. Willing v. Willing, 655 So.2d 1064 (Ala.Civ.App.1995). Factors the trial court should consider in its award of alimony and its division of property include the earning abilities of the parties; the future prospects of the parties; the ages and health of the parties; the duration of the marriage; their station in life; the marital properties and their sources, values, and types; and the conduct of the parties in relation to the marriage. Id., at 1067. Further, a division of marital property in a divorce case does not have to be equal, only equitable, and a determination of what is equitable rests within the sound discretion of the trial court. Id.

After carefully reviewing the record in this case, we cannot say that the trial court abused its discretion in its property division and in its failure to award the wife periodic alimony.

As to the wife’s contention that the trial court erred in failing to reserve the issue of periodic alimony, we note that “[w]hen a trial court does not award periodic alimony in a divorce case, or does not reserve the right to do so upon future consideration, its power to award alimony is permanently lost.” Kennedy v. Kennedy, 743 So.2d 487, 490 (Ala.Civ.App.1999). The trial court’s failure to at least reserve the issue of alimony often constitutes reversible error. Travis v. Travis, 849 So.2d 177 (Ala.Civ.App.2002). The trial court should reserve the issue of alimony if the facts indicate that future circumstances may entitle either party to a later award of alimony. Crenshaw v. Crenshaw, 816 So.2d 1046 (Ala.Civ.App.2001). The record indicates that the wife was taking thyroid medication and an antidepressant; that the pending divorce had placed considerable stress on the wife; that she had lost 80 pounds; and that she was unable to eat or sleep. Because of the length of the marriage and the wife’s questionable mental and emotional health, we conclude that the trial court abused its discretion in failing at least to reserve the issue of future alimony. This portion of the judgment is reversed and the case remanded for the trial court to enter an order reserving the issue of future periodic alimony.

The wife next argues that the trial court erred by failing to base the husband’s child-support obligation on an earning ability of $30,000 per year. Application of the child-support guidelines is mandatory. Etheredge v. Etheredge, 730 So.2d 245 (Ala.Civ.App.1999). The word “shall” in Rule 32(E), Ala. R. Jud. Admin., mandates the filing of a standardized Child Support Guidelines Form and a Child Support Obligation Income Statement/Affidavit Form. Id. at 247. “ ‘[T]he parties must complete and file accurate Child Support Obligation Income Statement/Affidavit Forms and the trial court must also file a fully completed and signed Child Support Guidelines Form.’ ” Id., at 247, quoting Lo Porto v. Lo Porto, 717 So.2d 418, 421 (Ala.Civ.App.1998). Compliance with Rule 32(E) is mandatory even though the trial court finds that the application of the guidelines would be unjust. Id. Where the trial court finds that the application of the guidelines would be unjust or inequitable and deviates from those guidelines in setting a support obligation, it must make the findings required by Rule 32(A)(ii), Ala. R. Jud. Admin. Id.

The record contains the CS-41 and CS-42 forms submitted by the wife. The record also contains a CS^42 form completed by the court referee in which the referee imputed a monthly income of $1,733 to the husband and determined that his monthly pendente lite support obligation was $475. The record does not contain CS-41 and CS-42 forms completed by the husband nor does it contain a properly completed CS^t2 form by the trial court. In its final judgment, the trial court determined that the husband’s monthly child-support obligation was $636. This court is unable to determine how the trial court reached that amount. Accordingly, we must reverse this portion of the trial court’s judgment and remand the case for compliance with Rule 32(E). On remand, the husband is directed to file completed and signed CS-41 and CS^42 forms. The trial court is directed to complete and file a CS-A12 form. Should the trial court on remand determine application of the guidelines to be unjust or inequitable and deviates from those guidelines, it must make the findings required by Rule 32(A)(ii).

Finally, the wife argues that the name of the creditor of the Ford Expedition should be changed to First Star Leasing Corporation rather than Ford Motor Credit. The evidence in the record indicates only that the debt on the Ford Expedition was owed to “the leasing company.” The trial court ordered that the husband be liable for the debt owed to Ford Motor Credit. The wife stated in her post-judgment motion that the debt for the Ford Expedition was actually owed to First Star Leasing Corporation. The husband did not dispute this in his motion in opposition to the wife’s postjudgment motion. Accordingly, on remand the court should amend its order to reflect the debt owed on the Ford Expedition as being owed to First Star Leasing Corporation.

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

CRAWLEY and MURDOCK, JJ., concur.

THOMPSON, J., concurs in the result.

PITTMAN, J., concurs in part and dissents in part.

PITTMAN, Judge,

concurring in part and dissenting in part.

According to the record, the husband earned $36,887.62 in 1999 and $31,952.57 in 2000, while the wife earned nearly $25,000 annually at the time of trial. The wife is vested in the State’s retirement plan, whereas the husband has been working temporarily at a construction site and has been attempting to start his own business as a hardware installer. Based on the wife’s 16 years of employment with the State, even if her health requires her to stop working sometime in the future, she will have access to retirement and/or disability income.

I would not reverse a trial court’s judgment solely for failing to reserve the issue of periodic alimony unless one of the parties had a disproportionately larger income or greater assets compared to the other party’s income or assets.

Here, however, the trial court established the father’s monthly child-support obligation as $636, but failed to file a CS-42 form so as to demonstrate how it reached that determination. This court has repeatedly admonished trial courts to adhere to the requirements of Rule 32(E), Ala. R. Jud. Admin. In this case, the trial court’s failure to file a CS-42 form or to incorporate one into its child-support judgment constitutes reversible error. See Russell v. Russell, 844 So.2d 1215 (Ala.Civ.App.2002); Fowler v. Fowler, 773 So.2d 491 (Ala.Civ.App.2000). A thorough review of the referee’s recommendation and the parties’ income testimony does not reveal how the trial court calculated the husband’s child-support obligation. I have “unsuccessfully attempted, based on the evidence in the record, to determine the manner in which the trial court determined the father’s child support obligation.” Nelson v. Landis, 709 So.2d 1299, 1300-01 (Ala.Civ.App.1998). I therefore concur in the main opinion as to that issue.

Because the trial court s judgment in this case must be reversed, I agree that the trial court may also consider reserving the issue of periodic alimony when it enters its judgment on remand. However, to the extent that the main opinion can be construed so as to require reservation of that issue in every case, I cannot join in that opinion; therefore, I respectfully dissent as to the periodic-alimony issue.


author: SHAW, Judge.

text:
    Carl Arthur PERRY, Jr. v. STATE of Alabama.
    CR-01-1382.
    Court of Criminal Appeals of Alabama.
    Nov. 22, 2002.
    Fred W. Teague, Ashville, for appellant.
    William H. Pryor, Jr., atty. gen., and Andy Scott Poole, asst. atty. gen., for ap-pellee.
   SHAW, Judge.

The appellant, Carl Arthur Perry, Jr., was convicted of escape in the first degree and of promoting prison contraband in the first degree, violations of §§ 13A-10-31 and 13A-10-36, Ala.Code 1975, respectively. He was sentenced, as a habitual offender with one prior felony conviction, to life imprisonment for the escape conviction and to 20 years’ imprisonment for the promoting-prison-contraband conviction; the sentences were to run concurrently.

The evidence adduced at trial indicated that on January 12, 1998, a correctional officer at the St. Clair Correctional Facility spotted Perry, an inmate in the facility, crawling under a fence and moving toward the exterior of the prison. The officer transmitted a radio alert that a prison break was in progress and yelled for Perry to stop. Perry complied. Once he was apprehended, a search revealed that Perry was carrying a concealed knife.

Perry raises what appear to be five issues on appeal. His arguments with respect to four of those issues do not comply with Rule 28(a)(10), Ala.R.App.P., which requires that an argument contain “the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the cases, statutes, other authorities, and parts of the record relied on.” “Recitation of allegations without citation to any legal authority and without adequate recitation of the facts relied upon has been deemed a waiver of the arguments listed.” Hamm v. State, [Ms. CR-99-0654, February 1, 2002] — So.2d -, -(Ala.Crim.App.2002). Because Perry failed to comply with Rule 28(a)(10), Ala.R.App.P., with respect to his first four issues, those issues are deemed waived.

Perry also contends on appeal that the trial court erred in not requiring the State to give written notice of its intent to invoke the Habitual Felony Offender Act (“HFOA”). The record reflects that after the jury returned its verdicts and was excused, the trial court adjudged Perry guilty of escape in the first degree and of promoting prison contraband in the first degree. The State then offered one prior conviction for purposes of sentence enhancement and, after some discussion, the following occurred:

“[Perry’s counsel]: If I’m not mistaken I don’t believe the State has given written notice that they were going to proceed under the Habitual Offender Act.
“[Prosecutor]: We will give notice right now and ask for a sentence hearing, if [defense counsel] wants me to do that.
“THE COURT: Do you want to ask for a sentence hearing?
“[Prosecutor]: I mean, if he is objecting to the court considering the murder conviction, then I would.... [B]ut I do want the court to consider the murder conviction.
“THE COURT: And I am. Anything further from either side?
“[Perry’s counsel]: No, Your Honor.”

(R. 99-100.)

“The Supreme Court of Alabama in Connolly v. State, 602 So.2d 452 (Ala.1992), held that oral notice of intent to invoke the Habitual Felony Offender Act was sufficient and that written notice was not necessary.” McCray v. State, 643 So.2d 610, 613 (Ala.Crim.App.1992). See also Williams v. State, 616 So.2d 374 (Ala.Crim.App.1993). It is clear from the record that the State gave oral notice of its intent to invoke the HFOA; therefore, written notice was not necessary.

For the reasons stated above, we affirm Perry’s conviction for escape in the first degree and his conviction and sentence for promoting prison contraband in the first degree. However, Perry’s sentence for the escape conviction was illegal; therefore, we must remand this case for resentencing on that conviction.

The record reflects that the only prior conviction offered by the State for purposes of sentence enhancement was Perry’s murder conviction — the conviction for which he was imprisoned at the time of his attempted escape. That conviction was properly used to enhance his sentence for the promoting-prison-contraband conviction; however, it was an essential element of the offense of escape in the first degree and, thus, could not be used to enhance Perry’s sentence for the escape conviction. It is well settled that “a sentence imposed for escape cannot be enhanced under the [Habitual Felony Offender] Act by a prior felony conviction for which the defendant was confined at the time of the escape if that prior conviction was a necessary element in proving the escape.” Moncrief v. State, 551 So.2d 1175, 1177 (Ala.Crim.App.1989). See also Hall v. State, 687 So.2d 215 (Ala.Crim.App.1996), and Humphrey v. State, 686 So.2d 490 (Ala.Crim.App.1996). Moreover, “[m]atters concerning unauthorized sentences are jurisdictional,” Hunt v. State, 659 So.2d 998, 999 (Ala.Crim.App.1994); therefore, we may take notice of an illegal sentence even though the issue of the legality of the sentence was not raised in the trial court or on appeal. See, e.g., Pender v. State, 740 So.2d 482 (Ala.Crim.App.1999).

Therefore, we remand this case to the trial court for it to resentence Perry for his escape conviction. We note that Perry may be sentenced under the HFOA at the second sentencing hearing if he has other prior convictions besides the murder conviction (which the record suggests he does) and if the State gives proper notice of its intent to again invoke the HFOA. As this Court noted in Clements v. State, 709 So.2d 1321 (Ala.Crim.App.1997):

“In Nichols v. State, 629 So.2d 51 (Ala.Cr.App.1993), this court stated that if resentencing was required, the defendant was entitled to be renotified of the State’s intent to proceed under the HFOA and renotified of the convictions it intends to prove.
“ ‘ “To enhance a defendant’s sentence under the HFOA, the State must give proper notice of its intent to do so. The State must also give the defendant proper notice of the alleged previous felony convictions that it will attempt to prove at that sentencing hearing. If, for whatever reason, another sentencing hearing is required and the State had notified the defendant of its intent to proceed under the HFOA at the previous sentencing hearing, then the State can re-notify the defendant of its intent to proceed under the HFOA and can notify the defendant that it will attempt to prove all previous felony convictions that the State is aware of, regardless of whether the State had attempted to prove those particular convictions at the previous sentencing hearing.” ’

“Nichols v. State, 629 So.2d 51, 57 (Ala.Cr.App.1993) (quoting Connolly v. State, 602 So.2d 452, 455 (Ala.1992) (some emphasis [in Connolly ]; some emphasis [in Clements ])).

“ ‘The rule is that the state may use, at a second sentencing hearing, convictions other than those used at the first hearing, provided that proper notice has been given prior to both hearings. Connolly v. State, 602 So.2d 452 (Ala.1992); Jackson v. State, 566 So.2d 758 (Ala.1990). See also A.R.Cr.P. 26.6(b)(3)(h). “This requires only that the defendant be notified before each sentencing hearing that the HFOA [Habitual Felony Offender Act] will be applied and what convictions the State will attempt to prove.” Connolly v. State, 602 So.2d at 454 (emphasis added [in Cooper ]).’ “Cooper v. State, 632 So.2d 1342, 1343-44 (Ala.Cr.App.1993), aff'd, 632 So.2d 1344 (Ala.1994) (‘The record in this case shows that the appellant was not given notice, prior to the third sentencing hearing, of the convictions the state intended to prove. At the hearing, the appellant made numerous and timely objections to the failure to give notice.’).”

709 So.2d at 1323.

Due return should be filed with this Court no later than 63 days from the date of this opinion. The return to remand shall include a transcript of the proceedings conducted on remand.

AFFIRMED IN PART; REMANDED WITH DIRECTIONS AS TO SENTENCING.

McMILLAN, P.J., and COBB and WISE, JJ., concur. BASCHAB, J., concurs in the result.

       Note from the reporter of decisions: On March 14, 2003, on return to remand, the Court of Criminal Appeals affirmed, without opinion. On April 18, 2003, that court denied rehearing, without opinion.