author: JOHNSTONE, Justice.

text:
    John LEE, A.B. Hankins, Jr., and Randy Grant v. BALDWIN COUNTY ELECTRIC MEMBERSHIP CORPORATION. Baldwin County Electric Membership Corporation v. John Lee, A.B. Hankins, Jr., and Randy Grant. Baldwin County Electric Membership Corporation v. Aubury L. Fuller and J. Thomas Bradley, Jr.
    1010008, 1010338 and 1010537.
    Supreme Court of Alabama.
    Jan. 17, 2003.

      Floyd C. Enfinger, Jr., Montrose, for John Lee, A.B. Hankins, Jr., and Randy Grant.
    Daniel G. Blackburn and Cynthia J. Sherman of Blackburn & Conner, P.C., Bay Minette, for Baldwin County Electric Membership Corporation.
    Fred K. Granade and Samuel N. Crosby of Stone, Granade & Crosby, P.C., Bay Minette, for Aubury L. Fuller and J. Thomas Bradley, Jr.
   JOHNSTONE, Justice.

In appeal no. 1010537, defendant Baldwin County Electric Membership Corporation (“BCEMC”) appeals the attorneys’ fees awarded plaintiffs Aubury L. Fuller and J. Thomas Bradley, Jr. (“Fuller-Bradley”), who defend their right to attorneys’ fees on the theories of the general common benefit rule, the stockholders’ derivative action common benefit doctrine, and the indemnification of directors of cooperatives under § 37-6-3(16)a., Ala.Code 1975. We reverse the order of the trial court awarding attorneys’ fees to Fuller-Bradley and render a judgment in favor of BCEMC.

In appeal no. 1010008, BCEMC members John Lee, A.B. Hankins, Jr., and Randy Grant (“Lee-Hankins-Grant”) appeal the merits of the judgment entered in Fuller-Bradley’s action against BCEMC. This Court holds that, because Lee-Han-kins-Grant were not parties to Fuller-Bradley’s action, they lack standing to appeal the judgment entered in that case. Therefore, on motion of BCEMC, we dismiss the appeal filed by Lee-Hankins-Grant.

In appeal no. 1010338, BCEMC appeals the order of the trial court staying its own judgment in Fuller-Bradley’s action to accommodate the appeal filed by Lee-Han-kins-Grant. Because we are dismissing the Lee-Hankins-Grant appeal on the ground of their lack of standing to appeal the judgment in the Fuller-Bradley action, we reverse the stay of the judgment in that action and remand the cause for the trial court to vacate that stay.

The first purpose of the following chronology of substantive and procedural facts is to reveal the judicial proceedings and rulings that disentitle Fuller-Bradley to attorneys’ fees in appeal no. 1010537. The second purpose of the chronology is to reveal the procedural factors that require dismissal of the appeal by Lee-Hankins-Grant in no. 1010008. The same chronology will double to serve both purposes.

In April or May 1998, about 200 members of BCEMC began circulating petitions to call a special meeting to remove and to replace five of the seven trustees on the BCEMC board of trustees. The bylaws of BCEMC and § 10-2B-7.02(a), Ala. Code 1975, require the signatures of no less than ten percent of the membership of BCEMC to call a special meeting.

On August 10, 1998, BCEMC members Lloyd Taylor and the firm of Taylor and Taylor (hereinafter collectively called “Taylor”) petitioned the Baldwin County Circuit Court for a writ of mandamus directing BCEMC to permit Taylor to inspect and to copy certain records of BCEMC and to furnish Taylor with a current mailing list of the names of all BCEMC members. On August 21, 1998, the trial court ordered BCEMC to furnish Taylor with a copy of the current mailing list of the members of BCEMC. “The trial court also retained jurisdiction ‘until such time as the court determine[d] that there [was] no further need to retain jurisdiction.’ ” Baldwin County Elec. Membership Corp. v. Lee, 804 So.2d 1087, 1089 (Ala.2001).

On September 1, 1998, BCEMC members Lee-Hankins-Grant sued BCEMC, the secretary of BCEMC, and the president of BCEMC. Lee-Hankins-Grant alleged that the defendants had breached their duty to issue a notice of the special meeting demanded in a petition signed by ten percent of the membership of BCEMC. Lee-Hankins-Grant prayed that the trial court enjoin the defendants from delaying the certification and the notice of the special meeting demanded in the petition. Lee-Hankins-Grant subsequently amended their complaint to add the remaining five members of the BCEMC board of trustees, including trustee Aubury L. Fuller, as defendants. On October 27, 1998, the trial court consolidated the actions filed by Taylor and Lee-Hankins-Grant.

On July 15, 1999, pursuant to § 37-6-9(b), Ala.Code 1975, a majority of the BCEMC board of trustees adopted a resolution amending the bylaws of BCEMC to authorize the membership to vote by mail on proposed amendments to the bylaws.

On July 19, 1999, in their own action, Lee-Hankins-Grant moved for an immediate hearing, “an immediate restraining Order and other injunctive relief.” They challenged the validity of the July 15, 1999 vote-by-mail resolution adopted by the majority of the BCEMC board of trustees.

On July 21, 1999, Fuller-Bradley, who were members and trustees of BCEMC, filed a “Complaint For Declaratory Judgment” to determine the legality of the July 15, 1999 vote-by-mail resolution. Fuller-Bradley “request[ed] reimbursement of the costs and fees incurred in bringing this action for the benefit of the Corporation and its members.”

On August 30, 1999, in Taylor’s and Lee-Hankins-Grant’s actions, the trial court began the trial of the claim for a special meeting for the removal and replacement of trustees.

On September 1, 1999, in their own action challenging the legality of the vote-by-mail resolution, Fuller-Bradley moved for a summary judgment, which BCEMC opposed. On September 23, 1999, in their own action, Fuller-Bradley filed a “Notice of Constitutional Challenge” challenging the constitutionality of § 37-6-9(b), Ala. Code 1975, which authorizes an electrical cooperative to adopt a vote-by-mail procedure. On November 29, 1999, in Fuller-Bradley’s action, the Attorney General acknowledged his receipt of the challenge to the constitutionality of § 37-6-9(b), waived further service of pleadings and discovery on him, and waived “the right to be heard.”

On January 7, 2000, in Taylor’s and Lee-Hankins-Grant’s actions, the trial court found that the petition to BCEMC to a call a special meeting contained the signatures of at least ten percent of the membership of BCEMC. The trial court ordered a “special election” for the positions of the trustees whose elections had been challenged.

On January 13, 2000, Taylor and Lee-Hankins-Grant moved the trial court to award them attorneys’ fees in their respective actions.

On January 28, 2000, in Taylor’s and Lee-Hankins-Grant’s actions, defendant-trustee Fuller, without Bradley, moved to alter or to amend the January 7, 2000 order to establish a procedure for the method of voting for trustees in the special meeting and “to preserve the status quo and to guide the Trustees during the period preceding the special election” to prevent the “Trustees from replacing the [BCJEMC’s capable and experienced management.” On February 4, 2000, BCEMC moved to alter or to amend the January 7, 2000 order to correct that order to reflect the number of signatures of qualified members established by the evidence.

On February 14, 2000, in Taylor’s and Lee-Hankins-Grant’s actions, the trial court amended its January 7, 2000 order to require the special meeting for the election of trustees to be held in accordance with the bylaws of BCEMC in effect before July 1999. The trial court further stated:

“a.... All other claims and issues in Plaintiffs’ request for immediate restraining order and injunctive relief filed July 16, 1999 are hereby severed and transferred to and consolidated with Fuller v. Baldwin County Electric Membership Corporation, CV-99-704 Circuit Court of Baldwin County.
“b. Plaintiff’s request for assessment of an attorney fee is under submission to the Court. Such issue is hereby severed from this proceeding and this Order constitutes a final appealable order. The Court considers the request for attorney fees to be an issue separate and apart from the other issues litigated in this case and the grant or denial of attorney fees will be addressed in the pending case of Fuller v. EMC, CV-99-704.” (Emphasis added.)

The trial court did not amend the case action summary in Fuller-Bradley’s action to add Taylor and Lee-Hankins-Grant as plaintiffs or other parties in that action. Nor did the trial court order Taylor and Lee-Hankins-Grant added as plaintiffs or other parties to Fuller-Bradley’s action. On February 18, 2000, in Taylor’s and Lee-Hankins-Grant’s actions, BCEMC and four of its trustees appealed the judgment ordering the special meeting for the election of trustees.

On February 28, 2000, the trial court heard Taylor’s and Lee-Hankins-Grant’s motions for attorneys’ fees. The parties from all three actions were represented at the hearing.

On March 27, 2000, in Taylor’s and Lee-Hankins-Grant’s actions, the trial court amended the January 7, 2000 order to “retain jurisdiction of the conduct of the special meeting called by the members and the special election in connection therewith ordered by the Court in the January 7, 2000 [order] for the sole purpose of enforcing that order and insuring fairness and equity.” The trial court denied all other postjudgment relief requested by all parties.

On May 8, 2000, in Taylor’s and Lee-Hankins-Grant’s actions for the special meeting for the election of trustees, defendant-trustee Fuller appealed the March 27, 2000 order denying his January 28, 2000 postjudgment motion.

On May 12, 2000, in Fuller-Bradley’s action challenging the vote-by-mail statute, § 37 — 0—9(b), and resolution, the trial court ordered BCEMC to pay interim “attorney fees and expenses incurred” by Taylor’s and Lee-Hankins-Grant’s attorneys “in cases CV-98-725 [Taylor’s action], CV-98-815 [Lee-Hankins-Grant’s action,] and CV-99-704 [Fuller-Bradley’s action], forthwith.” The trial court ordered the parties and the parties’ attorneys to “file with the clerk ... an itemization of all time and expenses related to the above referenced cases and the total amount of money (whether fees or expenses) received by all attorneys relative to the above cases.”

On August 20, 2000, in this Court, Fuller filed his brief on appeal in his appeals of the March 27, 2000 order in Taylor’s and Lee-Hankins-Grant’s actions. In his brief, Fuller contended that the trial court erred “in failing to preserve the status quo and to guide the trustees during the time period preceding the special election and to require that no trustee is excluded from board meetings, discussions, or decisions.” He argued that the trial court correctly enforced the petition to BCEMC to call a special meeting to remove and replace five of the seven trustees on the BCEMC board of trustees and that this Court should affirm the January 7, 2000 order in Taylor’s and Lee-Hankins-Grant’s actions.

On June 1, 2001, this Court issued its opinion in Baldwin County Electric Membership Corp. v. Lee, supra. We held that, because Taylor and Lee-Hankins-Grant had failed to set a “record date” for determining the stockholders’ right to demand a special meeting and had failed to date the signatures on the petition, the trial court erred in ordering a special meeting for the election of trustees. We reversed the judgment of the trial court and rendered a judgment in favor of BCEMC and its trustees. Because we held that Taylor and Lee-Hankins-Grant were not entitled to a special meeting “on the basis of the petition submitted,” we dismissed Fuller’s appeals as moot. Lee, 804 So.2d at 1092.

On August 10, 2001, in Fuller-Bradley’s action challenging the vote-by-mail statute, § 37-6-9(b), and resolution, BCEMC moved for a summary judgment and submitted a brief in support of its motion. BCEMC contended that § 37-6-9(b) authorized its board of trustees to amend the bylaws to authorize voting by mail on amendments to the bylaws. BCEMC contended also that § 37-6-9(b) was constitutional. On August 16, 2001, in Fuller-Bradley’s action, “declinfing] to grant the relief requested by Petitioners,” the trial court stated, in pertinent part:

“The Court believes that it is guided by § 37-6-9(b)[, Ala.Code 1975,] which provides as follows:
“ “Voting shall be in person, but if the bylaws so provide, may also be by proxy or by mail, or both; provided, however, notwithstanding any contrary provision in the bylaws of the cooperative, the board of trustees, by resolution, may authorize voting by mail on bylaw adoption, amendment, or repeal and, in such event, the board of trustees shall also specify the procedures to be followed in such mail voting.’
“With regard to the ‘procedures’ referred to in the paragraph above, the Court notes that the Bylaws provide for a majority vote for trustees, however, where no candidate receives a majority vote, there is no procedure in place for a ran-off election.
“Accordingly, the Court denies Petitioner’s Motion for Summary Judgment and grants Defendant’s Motion for Summary Judgment.”

That same day, in Fuller-Bradley’s action, Lee-Hankins-Grant purported to respond to the summary judgment motion filed by BCEMC.

On August 31, 2001, Fuller-Bradley moved for an award of attorneys’ fees in their own case. On September 5, 2001, Taylor moved to intervene as a plaintiff in Fuller-Bradley’s action, and to amend, to vacate, or to correct the August 16, 2001 judgment sustaining the validity of the vote-by-mail statute, § 37-6-9(b), and resolution, in Fuller-Bradley’s action to address the issue of attorneys’ fees in Taylor’s action. On September 10, 2001 BCEMC moved to alter or to amend the August 16, 2001 judgment to dispose of all issues raised in that action by denying the attorneys’ fees motions filed by Taylor and Lee-Hankins-Grant. BCEMC also opposed the attorneys’ fees motion filed by Fuller-Bradley.

On September 14, 2001, Lee-Hankins-Grant purported to appeal the August 16, 2001 judgment in Fuller-Bradley’s action. On September 17, 2001, the trial court conducted a hearing on Fuller-Bradley’s attorneys’ fees motion. On September 20, 2001, BCEMC filed an opposition to Taylor’s motion to intervene in Fuller-Bradley’s action. On October 10, 2001, the trial court denied Taylor’s motion to intervene. On October 23, 2001, in Fuller-Bradley’s action, on Lee-Hankins-Grant’s motion, the trial court stayed execution of the August 16, 2001 judgment validating the vote-by-mail statute, § 37-6-9(b), and resolution, pending appellate review of that judgment. In a separate order, holding that Fuller-Bradley “conferred a substantial benefit upon [BCEMC], its trustees, and members,” the trial court awarded Fuller-Bradley attorneys’ fees of $22,357.97 in Taylor’s and Lee-Hankins-Grant’s consolidated actions, and of $35,000 in Fuller-Bradley’s own action.

On November 5, 2001, in Fuller-Bradley’s action, BCEMC moved to vacate the stay on the ground that Lee-Hankins-Grant were not parties to Fuller-Bradley’s action. BCEMC also appealed the order staying execution of the August 16, 2001 judgment. On November 30, 2001, BCEMC appealed the order awarding attorneys’ fees to Fuller-Bradley. On January 9, 2002, BCEMC moved this Court to dismiss Lee-Hankins-Grant’s appeal on the ground that, because Lee-Hankins-Grant were not parties to Fuller-Bradley’s action, Lee-Hankins-Grant lacked standing to appeal the August 16, 2001 judgment entered in Fuller-Bradley’s action.

Appeal No. 1010537—BCEMC’s Appeal of Attorneys’ Fees

On appeal, BCEMC asserts two issues:

“1. Did the trial court abuse its discretion by awarding attorney’s fees to [Fuller-Bradley] in their declaratory judgment action challenging the validity of a resolution passed by [BC] EMC’s Board of Trustees and a subsequent amendment to the [BC] EMC bylaws where (1) Section 37-6-3(16)a.[, Ala. Code 1975,] allowing a cooperative to indemnify a director who is made a party to a suit, does not apply when the director brings the suit, and (2) the lawsuit was resolved against [Fuller-Bradley] and conferred no benefit on [BC] EMC and served only to delay implementation of a valid resolution and bylaw and hinder the actions of the Trustees?
“2. Did the trial court abuse its discretion by awarding attorney’s fees to [Fuller-Bradley] for ‘defending’ in related actions [filed by Taylor and Lee] where Fuller and Bradley were not a parties to [Taylor’s action], Bradley was not a party to [Lee’s action], and Fuller did not defend in [Lee’s action]?”

BCEMC contends that Fuller-Bradley are not entitled to attorneys’ fees in Fuller-Bradley’s own action against BCEMC because, BCEMC says, (1) the indemnification provisions of § 37-6-3(16)a., Ala.Code 1975, benefit only a director who has been sued and (2) Fuller-Bradley’s action did not prevent an abuse of power or confer a substantial benefit on BCEMC.

Fuller-Bradley first contend that they are entitled to attorneys’ fees under the “common benefit doctrine.”

“Under the American rule, the parties to a lawsuit bear the responsibility of paying their own attorney fees. However, the law recognizes certain exceptions to this rule, and attorney fees are recoverable when authorized by statute, when provided by contract, or when justified by special equity. Blankenship v. City of Hoover, 590 So.2d 245 (Ala.1991); Reynolds v. First Alabama Bank of Montgomery, N.A., 471 So.2d 1238 (Ala.1985). In the latter instance, attorney fees may be awarded where the plaintiffs efforts are successful in creating a fund out of which the fees may be paid, or when the efforts of the plaintiffs attorneys render a public service or result in a benefit to the general public in addition to serving the interests of the plaintiff. City of Ozark v. Trawick, 604 So.2d 360 (Ala.1992); Brown v. State, 565 So.2d 585 (Ala.1990); Bell v. Birmingham News Co., 576 So.2d 669 (Ala.Civ.App.1991). These have been termed the ‘common fund’ and ‘common benefit’ exceptions to the American rule.
“The common benefit exception is at issue here; however, the trial court, concluding that the efforts of the plaintiffs’ attorneys did not create a benefit common to all the citizens of Birmingham, denied the plaintiffs’ request for an award of attorney fees. Whether to award attorney fees is within the sound discretion of the trial court, and the ruling on that question will not be reversed on appeal absent an abuse of discretion. Battle [v. City of Birmingham, 656 So.2d 344 (Ala.1995) ], supra; Tuscaloosa County Comm’n v. Deputy Sheriffs’ Ass’n of Tuscaloosa County, 632 So.2d 442 (Ala.1993)

Ex parte Horn, 718 So.2d 694, 702 (Ala.1998) (emphasis added). Because Fuller-Bradley’s action did not create a common fund or benefit the general public, Fuller-Bradley are not entitled to attorneys’ fees under the general common fund or common benefit rule.

Fuller-Bradley next argue that they are entitled to attorneys’ fees under the common benefit doctrine applied in the context of a stockholders’ derivative action because, they say, in filing and prosecuting their action, a stockholders’ derivative action seeking a declaratory judgment, they conferred a substantial benefit on BCEMC. Fuller-Bradley argue that they conferred a substantial benefit on BCEMC in that, they say, they successfully obtained a declaration of the validity of the July 15, 1999 vote-by-mail resolution adopted by the BCEMC board of trustees.

“In a stockholder’s derivative action, when the stockholder confers a substantial benefit upon the corporation, the stockholder bringing the derivative action is entitled to recover a reasonable attorney fee.” American Family Care, Inc. v. Irwin, 571 So.2d 1053, 1062 (Ala.1990).

Although Fuller-Bradley initially asked the trial court to declare the legality or illegality of the July 15, 1999 vote-by-mail resolution adopted by the BCEMC board of trustees, they later asserted that § 37-6-9(b) (the statute enabling the adoption of the July 15, 1999 vote-by-mail resolution) was unconstitutional and that the July 15, 1999 vote-by-mail resolution was void. The trial court did not declare § 37-6-9(b) unconstitutional. Rather, declining to hold § 37-6-9(b) unconstitutional and the adoption of the July 15, 1999 vote-by-mail resolution by the BCEMC board of trustees void, the trial court entered a summary judgment in favor of BCEMC. Thus, Fuller-Bradley did not receive a favorable ruling by the trial court on their only requested relief.

Fuller-Bradley claim that they conferred a common benefit precipitating a declaration of the validity of the vote-by-mail resolution even though the declaration was adverse to their challenge. In Allen v. Lloyd’s of London, 975 F.Supp. 802 (E.D.Va.1997), unsuccessful litigants, the “Names,” likewise sought such a reading of “benefit ” after having failed in their efforts to obtain a favorable ruling. The unsuccessful litigants argued that they had obtained “ ‘timely guidance’ on the important and disputed issue whether the Equi-tas interests that Lloyd’s was offering to the Names were securities under the securities laws of the United States, so that Names could properly evaluate the nature and status of the investment they were being offered.” 975 F.Supp. at 809. The court rejected this argument as “illogical because it is at odds with the fundamental meaning of the term ‘benefit.’ ” Id. The court described such benefit as “largely illusory and speculative, and ... far from the ‘substantial benefits’ required to invoke the common benefit doctrine.” Allen, 975 F.Supp. at 809. The court cut to the chase with the following observation:

“Under the plaintiff-Names’ ‘timely guidance’ theory, whenever an issue raised in litigation is resolved adversely, the losing litigant would earn attorney’s fees simply for having learned that he was wrong. That, of course, is in complete derogation of the American Rule.”

Allen, 975 F.Supp. at 809 n. 8.

Accordingly, the holding of the trial court that Fuller-Bradley “conferred a substantial benefit upon [BCjEMC, its trustees, and members” is unsupported by the record. Consequently, the trial court erred in awarding Fuller-Bradley attorneys’ fees for conferring such a benefit.

Fuller-Bradley next contend that they are entitled to attorneys’ fees as indemnity pursuant to § 37-6-3(16)a., Ala. Code 1975, because, they say, in filing their declaratory judgment action to determine the validity of the July 15, 1999 vote-by-mail resolution, they acted in good faith and in a manner they reasonably believed to be in the best interest of BCEMC.

“ ‘The fundamental rule of statutory construction is to ascertain and give effect to the intent of the legislature in enacting the statute.’ IMED Corp. v. Systems Eng’g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992). In interpreting a statute, ‘[wjords used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says.’ Id. See also Ex parte Pfizer, Inc., 746 So.2d 960, 964 (Ala.1999); Blue Cross & Blue Shield v. Nielsen, 714 So.2d 293, 296 (Ala.1998); Tuscaloosa County Comm’n v. Deputy Sheriffs’ Ass’n of Tuscaloosa County, 589 So.2d 687, 689 (Ala.1991); Town of Loxley v. Rosinton Water, Sewer & Fire Protection Auth., Inc., 376 So.2d 705, 708 (Ala.1979). ‘If the language of [a] statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.’ IMED Corp., 602 So.2d at 346.”

Ex parte Cove Props., Inc., 796 So.2d 331, 333-34 (Ala.2000).

Section 37-6-3(16)a., Ala.Code 1975, provides:

“A cooperative shall have power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending, or completed claim, action, suit, or proceeding, whether civil, criminal, administrative, or investigative, including appeals (other than an action by or in the right of the cooperative), by reason of the fact that he is or was a director, trustee, officer, employee, or agent of the cooperative, or is or was serving at the request of the cooperative as a director, trustee, officer, partner, employee, or agent of another cooperative, corporation, partnership, joint venture, trust, or other enterprise, against expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement actually and reasonably incurred by him in connection with such claim, action, suit, or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the cooperative or other entity, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any claim, action, suit, or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the cooperative, and with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful.” (Emphasis added.)

Fuller-Bradley filed only one action. In awarding them attorneys’ fees, the trial court accepted Fuller-Bradley’s assertion that their action was a stockholders’ derivative action. On appeal, BCEMC concedes that Fuller-Bradley’s action was properly a stockholders’ derivative action. Therefore, without dispute, Fuller-Bradley’s action was a stockholders’ derivative action.

Section 37-6-3(16)a. is unambiguous. The Legislature authorized cooperatives to reimburse “a director, trustee, officer, employee, or agent of the cooperative” for legal fees, expenses, and judgments incurred by him or her as a result of his or her serving in such capacity. Section 37-6-3(16)a. does not mention stockholders and does not authorize a cooperative to “indemnify” stockholders. A stockholder does not sue as a director, trustee, officer, employee,' or agent of the cooperative. Because Fuller-Bradley filed as stockholders, they were not entitled to attorneys’ fees pursuant to § 37-6-3(16)a. for bringing their action.

BCEMC contends that Fuller-Bradley are not entitled to attorneys’ fees in Taylor’s action or in Lee-Hankins-Grant’s action. Specifically, BCEMC contends that, because Fuller-Bradley were not defendants or other parties in Taylor’s action, Fuller-Bradley are not entitled to attorneys’ fees in that action. Fuller-Bradley do not contend that they are entitled to attorneys’ fees in Taylor’s action. Thus, the trial court erred in awarding Fuller-Bradley attorneys’ fees in Taylor’s action.

BCEMC contends further that, because Bradley was not a party to Lee-Hankins-Grant’s action, Bradley is not entitled to attorneys’ fees in Lee-Hankins-Grant’s action. Although Fuller was a defendant in Lee-Hankins-Grant’s action, Bradley was not a defendant or other party in that action. Fuller-Bradley do not contend that Bradley is entitled to attorneys’ fees in Lee-Hankins-Grant’s action. Thus, the trial court erred in awarding Bradley attorneys’ fees in Lee-Hankins-Grant’s action.

BCEMC contends that Fuller is not entitled to attorneys’ fees in Lee-Han-kins-Grant’s action, except for the attorneys’ fees BCEMC has already paid Fuller’s attorneys for defending him in that action before the trial court, because, BCEMC says, the attorneys’ fees that Fuller incurred as a result of his appeals of the March 27, 2000 order did not accrue “from work performed in defense of that action.” BCEMC’s brief, p. 22. BCEMC paid attorneys’ fees to Fuller’s attorneys for all work they performed in defense of Fuller before the trial court. BCEMC contends that the attorneys’ fees that it did not pay Fuller, $22,357.97, resulted from Fuller’s appealing the March 27, 2000 order denying his postjudgment motion in Taylor’s and Lee-Hankins-Grant’s actions, and from Fuller’s arguing on appeal that the trial court correctly found that the plaintiffs had presented sufficient signatures to call a special meeting to remove and replace trustees, and correctly ordered a “special election” of trustees.

Fuller contends that he is entitled to attorneys’ fees for defending himself in Lee-Hankins-Grant’s action because BCEMC authorized Fuller to hire separate legal counsel to represent him and because, he says, he “acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the cooperative,” § 37-6-3(16)a.

Although § 37-6-3(16)a. states that “[a] cooperative shall have power to indemnify any person who was or is a party ... to any ... action ... by reason of the fact that he is or was a director [or] trustee,” that section does not mandate that a cooperative must indemnify a trustee. Subpar-agraphs c. and d. of § 37-6-3(16) provide, in pertinent part:

“c. To the extent that a ... trustee ... of a cooperative ... has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in paragraphs a. and b. of this subdivision, or in defense of any claim, issue, or matter therein, he shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection therewith, notwithstanding that he has not been successful on any other claim, issue or matter in any such action, suit, or proceeding.
“d. Any indemnification under paragraphs a. and b. of this subdivision (unless ordered by a court) shall be made by the cooperative only as authorized in the specific case upon a determination that indemnification of the director, trustee, officer, employee, or agent is proper in the circumstances because he has met the applicable standard of conduct set forth in paragraphs a. and b. of this subdivision. Such determination shall be made (i) by the board of directors or trustees by a majority vote of a quorum consisting of directors or trustees who were not parties to, or who have been wholly successful on the merits or otherwise with respect to, such claim, action, suit, or proceeding, or (ii) if such a quorum is not obtainable, or, even if obtainable, a quorum of disinterested directors or trustees so directs, by independent legal counsel in a written opinion, or (iii) by the shareholders.” (Emphasis added.)

Because we dismissed Fuller’s appeals of the March 27, 2000 order denying his post-judgment motion as moot, Lee, 804 So.2d at 1092, Fuller was not successful in his arguments on appeal that the trial court correctly ordered a special meeting for elections of trustees and that the trial court incorrectly denied his postjudgment motion to maintain the status quo pending the special meeting and to provide guidance to the trustees on the management of BCEMC until the voting at the special meeting. Accordingly, § 37-6-2(16)c. does not mandate that BCEMC indemnify Fuller for the attorneys’ fees that he incurred as a result of his two unsuccessful appeals in Taylor’s and Lee-Hankins-Grant’s actions. Although BCEMC had the authority to indemnify Fuller if a majority of the BCEMC board of trustees found that he had met the applicable standard of conduct in § 37-6-3(16)a. and b., BCEMC chose not to indemnify him. Because indemnify cation for Fuller’s attorneys’ fees for his appeals in Taylor’s and Lee-Hankins-Grant’s actions was discretionary, not mandatory, the trial court erred in ordering BCEMC to pay Fuller attorneys’ fees of $22,357.97 for those appeals.

Accordingly, in appeal no. 1010537, we reverse the order of the trial court awarding attorneys’ fees to Fuller-Bradley and render a judgment in favor of BCEMC.

Appeal No. 1010008 — Lee-Hankins-Grant’s Appeal of the Merits of the Judgment in Fuller-Bradley’s Action

Lee-Hankins-Grant appeal the merits of the judgment validating the vote-by-mail statute, § 37-6-9(b), and resolution in Fuller-Bradley’s action. Specifically, they appeal the holding by the trial court that § 37-6-9(b) validly authorized the adoption of the July 15,1999 resolution by the BCEMC board of trustees to allow voting by mail on amendments to the bylaws. Appellee BCEMC has moved this Court to dismiss the appeal on the ground that Lee-Hankins-Grant were not parties to Fuller-Bradley’s action or to the judgment that they attempt to appeal. BCEMC contends that Lee-Hankins-Grant lack standing to appeal the judgment entered in Fuller-Bradley’s action. The motion is well-taken and is due to be granted.

The case action summary does not identify Lee-Hankins-Grant as plaintiffs or other parties in the Fuller-Bradley action. The trial court did not enter any order adding, or purporting to add, Lee-Han-kins-Grant as parties in Fuller-Bradley’s action. Accordingly, the record on appeal does not support Lee-Hankins-Grant’s contention that they were parties in Fuller-Bradley’s action. Consequently, Lee-Hankins-Grant lack standing to appeal any portion of the judgment entered in Fuller-Bradley’s action. Therefore, we dismiss Lee-Hankins-Grant’s appeal.

Appeal No. 1010338 — The Appeal by BCEMC of the Stay of Judgment Entered in Fuller-Bradley’s Action

BCEMC appeals the stay of the August 16, 2001 judgment entered by the trial court in Fuller-Bradley’s action. The trial court entered the stay to accommodate Lee-Hankins-Grant’s appeal of the merits of that judgment. Because we are dismissing the Lee-Hankins-Grant appeal of the August 16, 2001 judgment in Fuller-Bradley’s action, the purpose for the stay no longer exists. Therefore, we reverse the stay of judgment and remand this cause to the trial court to vacate the stay of judgment.

1010008 — APPEAL DISMISSED.

1010338 — REVERSED AND REMANDED.

1010537 — REVERSED AND JUDGMENT RENDERED.

MOORE, C.J., and SEE, BROWN, HARWOOD, and WOODALL, JJ„ concur.

STUART, J., recuses hérself.

      . The trial was conducted over several months.


source: Caselaw Access Project

author: CRAWLEY, Judge. THOMPSON, Judge, YATES, Presiding Judge,

license: Public Domain

text:
    Jeffrey Heith RIMPF v. Ruth Marie CAMPBELL.
    2010521.
    Court of Civil Appeals of Alabama.
    Dec. 6, 2002.

      W. Donald Bolton, Jr., Foley; and Oliver J. Latour, Jr., Foley, for appellant.
    Russell J. Watson of Ball, Koons & Watson, Bay Minette, for appellee.
   CRAWLEY, Judge.

Jeffrey Heith Rimpf (“the father”) and Ruth Marie Campbell (“the mother”) were divorced in 1987. The divorce judgment awarded physical custody of the parties’ minor daughter to the mother and required the father to pay child support and maintain insurance on the child. In March 2001, the mother filed a modification petition seeking, among other things, an increase in the amount of child support. She alleged that the needs of the child had increased and that the father’s ability to pay had increased as well. She also alleged that the father had misrepresented his income in a hearing on a prior child-support modification petition. The father answered, denying that there had been a material change in circumstances, that the child’s needs had increased, or that his ability to pay had increased.

After a trial at which the father testified at length concerning both his current income and his prior income, the trial court determined that the father’s monthly income was $3,000 and computed child support accordingly in a judgment entered on September 17, 2001. The father filed a postjudgment motion on October 12, 2001; that motion was denied by operation of law on January 10, 2002. The father appealed the September 17, 2001, judgment on February 20, 2002. On April 3, 2002, the trial court purported to grant the father some of the relief requested in his postjudgment motion; however, because the trial court had no jurisdiction to enter the April 3 order, that order is a nullity. On appeal, the father correctly addresses his arguments to the September 17, 2001, judgment.

The father argues that the mother failed to present evidence indicating that there had been a material change in circumstances since the last modification of child support, that the trial court erred by determining that his monthly income was $3,000 instead of $1,733, and that the trial court erred by computing child support based upon an income for the mother of $764 per month when she testified con-eerning a new job that would have increased her monthly income to $1,100. After reviewing the record, we have concluded that the trial court’s modification of child support is supported by the evidence of record. However, the father correctly argues that the trial court erred in its calculation of child support for the months after October 2001, because the trial court should have adjusted the child-support obligation based on the father’s increased insurance costs.

As a preliminary matter, we first note that neither the father nor the mother filed a CS-41 form. Although under some circumstances this court would automatically reverse the trial court’s judgment in this case because the required forms are not included in the record, see Martin v. Martin, 637 So.2d 901, 902 (Ala.Civ.App.1994), we believe that the circumstances of this case do not require a reversal. The trial court completed a CS-42 form, which indicates that it found that the mother’s monthly income was $764 and that it determined, based on testimony and documentary evidence discussed below, that the father’s monthly income was $3,000. The testimony was conflicting, but one view of the evidence supports the trial court’s determinations of both parties’ income. We see no need to reverse the judgment so that the parties can complete the required forms when those forms will likely reflect the testimony each, gave as to their respective income.

Even in Martin, in which this court pronounced the general rule that it would remand a child-support case or reverse the judgment and remand such a case when the required child-support forms were not in the record, this court noted that, when the income of a party is disputed, the issue is to be resolved by the trial court based on the evidence presented. Martin, 637 So.2d at 903. As we have noted before, where the record “ ‘clearly indicates] that the award comports with the evidence regarding the parties’ incomes’” and that the trial court complied with the guidelines, we need not reverse a child-support order based only on the failure of the parties to submit the required forms. See Mosley v. Mosley, 747 So.2d 894, 898 (Ala.Civ.App.1999) (quoting Dismukes v. Dorsey, 686 So.2d 298, 301 (Ala.Civ.App.1996)); see also Devine v. Devine, 812 So.2d 1278, 1282 (Ala.Civ.App.2001). Therefore, we will address the issues raised by the father based on the income figures set out by the trial court in the CS-42 form.

The father argues that the mother failed to prove a material change in the circumstances of the parties so as to entitle her to a modification of child support. Rule 32(A)(3)(b), Ala. R. Jud. Admin., states that “[tjhere shall be a rebuttable presumption that child support should be modified when the difference between the existing child support award and the amount determined by the application of these guidelines varies more than ten percent (10%).” The mother stated in her petition for modification that the father’s ability to pay had increased. She also alleged that the father had misrepresented his income to the trial court at the last modification' proceeding.

As will be discussed below, the record reveals conflicting evidence concerning the father’s income. However, it appears that the father’s income at the time of a prior modification proceeding in 1994 was determined to be approximately $9.50 per hour or approximately $1,647 per month. The trial court here determined that the father’s current income was $3,000 per month. The mother testified that her income had not changed much since the 1994 modification. We do not have the prior child-support order or the previous child-support forms in the record, but, based on a discussion between counsel and the court at trial, the father’s weekly child-support obligation set at the 1994 modification was $54, which would be $234 per month. The trial court’s judgment increases the father’s support obligation to $404 per month, based on $74 in insurance costs. As will be discussed below, the father’s child-support obligation, taking into consideration the change in monthly insurance costs in October 2001 from $74 to $294, should be $288. Because the difference between either of the modified amounts ($404 or $288) and the prior monthly obligation ($234) is more than 10%, we conclude that the mother presented sufficient evidence to warrant a modification of the child-support award.

The father argues that the trial court erred by calculating the mother’s income at $764 per month. The father contends that the mother testified that she was starting a new job the Monday following the trial. He also contends that, in 2000, the mother received approximately $11,500, which she characterized as repayment of marital debt, from Kenneth Irwin (“the ex-husband”), to whom she was married and divorced after her divorce from the father. Thus, the father argues, the trial court should have based the mother’s income on her new salary and included the $11,500 in the mother’s income.

The $764 monthly income figure is consistent with the mother’s testimony concerning her income as a health-care aide at Robertsdale Elementary School. Our review of the record reveals that the mother stated that she hoped to be starting a new job with a veterinarian on the Monday following the hearing; however, she reported that she would find out if she got the job on the Saturday following the hearing. Because the mother did not have the job on the date of the hearing, the trial court could have determined that the increased income from the new job was too speculative to include in computing child support. We see no error in the trial court’s exclusion of the mother’s possible increase in salary in determining the mother’s income.

The mother also testified that the ex-husband had paid her $500 per month in addition to his child-support payments (totaling $11,500) for marital debts; the testimony of the ex-husband corroborated the mother’s admission. Although the father argues that the payment of marital debt pursuant to a post-divorce judgment should be included as income to the payee for purposes of calculating child support, he cites nothing in support of that contention. Although preexisting periodic alimony is specifically included as income under Rule 32(B)(2)(a), alimony in gross is not.

The mother did not testify at length concerning exactly why she began receiving $500 per month in 2000, but we note that it appears that she sought a court order to compel repayment of the marital debts. Based on that information, it is logical to infer that mother had paid marital debts that had been allocated to the ex-husband in the parties’ original divorce judgment and that, in a post-divorce proceeding, the mother successfully sought repayment of her expenditures. The trial court, to whom the determination of income is entrusted, apparently considered that the repayment to the mother for her payment of marital debts allocated to the ex-husband was not income. We agree, because the change in the character of an asset, in this case the allocation of certain debt to the ex-husband, awarded in a divorce judgment does not transform the asset into income. See Denley v. Denley, 38 Conn.App. 349, 353, 661 A.2d 628, 631 (1995) (indicating that “[t]he mere exchange of an asset awarded as property in a dissolution decree, for cash, the liquid form of the asset, does not transform the property into income”); see also Schorsch v. Schorsch, 53 ConmApp. 378, 385, 731 A.2d 330, 334 (1999) (holding that the principal payments of a purchase money mortgage on property originally awarded to a husband in a divorce judgment were not income as they were a change in the character of the previously awarded asset).

The father also argues that the trial court improperly calculated his income at $3,000 per month when the father testified that he made only $1,733 per month. The father is a welder. The mother presented the father’s answers to interrogatories concerning his 1998 income, which, she said, indicated that the father earned approximately $29,670 in four months of that year. In addition, the father now works for a company owned by his current wife. The father testified that he is simply an employee of his wife’s company and that he owns no stock in it. The father’s wife also testified that the father was an employee. The father also explained that he had made more money as a welder in prior years when he traveled extensively, but that he did not want to travel anymore.

The trial court, based on its comments on the CS-42 form attached to the judgment, chose to believe that the father does enjoy the profits of his wife’s company despite his not being an owner “on paper,” and it imputed income to the father based on his prior earnings as reflected in the interrogatory answers and past tax returns. According to Rule 32(B)(5), Ala. R. Jud. Admin., the trial court, if it determines that a parent is voluntarily unemployed or underemployed, “shall estimate the income that parent would otherwise have and shall impute to that parent that income; the court shall calculate child support based on that parent’s imputed income.” Because the trial court has the duty of resolving the conflicts in evidence before it, see Butler v. Coonrod, 671 So.2d 750, 751 (Ala.Civ.App.1995), and because the record supports the trial court’s determination that the father’s income is $3,000 per month, we affirm the trial court’s judgment.

The father’s final argument is that the trial court improperly calculated his child-support obligation because it failed to deduct the $294 per month in insurance costs the testimony at trial indicated he would begin paying in October 2001. See Rule 32(B)(7)(c). The father’s wife testified that the company planned to change its insurance plan and that the insurance costs would increase drastically — from $74 per month to $588 every two months. At the time of the trial, however, the father was paying $74 per month in insurance costs. When the trial court purported to grant, in part, the father’s postjudgment motion in April 2002, it deducted the $294 per month in insurance costs and arrived at a monthly child-support obligation of $288. The father argues that the trial court’s postjudgment order, although void, reflects the correct computation of child support based on the deduction of the $294 amount for insurance costs. We agree that the trial court should have computed child support by deducting the increased insurance expense beginning with the child-support obligation due in October 2001. Therefore, we reverse the trial court’s child-support award and remand the case to the trial court for it to deduct the $294 insurance expense from the father’s child-support obligation for the months after and including October 2001. The award of $404 per month in child support for the months after the filing of the petition and before October 2001 was properly computed.

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

PITTMAN and MURDOCK, JJ., concur.

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

YATES, P.J., dissents.

THOMPSON, Judge,

concurring in part and dissenting in part.

At the time of the hearing in this matter and at the time the trial court entered its September 21, 2001, judgment, the father was paying $74 per month for health insurance for the parties’ child. In his October 12, 2001, postjudgment motion, the father, among other things, asserted that the cost of providing health insurance benefits was $313 per month; the father submitted no evidence in support of his assertion that he was paying that amount to provide health-insurance coverage for the parties’ child. Because the father was paying only $74 per month for health insurance at the time of the hearing and at the time the trial court entered its judgment, the trial court could have determined that the father’s claim that his cost for health insurance was going to increase was too speculative to include in its determination of the father’s child-support obligation. I conclude that the evidence before the trial court at the time it entered its judgment, and during the time the father’s postjudgment motion was pending in the trial court, supported the trial court’s decision to calculate the father’s child-support obligation pursuant to Rule 32, Ala. R. Jud. Admin., by including in its calculation health-insurance costs of $74 per month. Therefore I dissent from that part of the main opinion that reverses the trial court’s child-support determination on that basis. I concur in all other parts of the main opinion.

YATES, Presiding Judge,

dissenting.

I must respectfully dissent. The parties failed to comply with the requirements of Rule 32(E), Ala. R. Jud. Admin., and the well-established mandate regarding the filing of standardized child-support guidelines forms and child-support obligation income statement/affidavit forms, as set out in Martin v. Martin, 637 So.2d 901 (Ala.Civ.App.1994).

I recognize, as the main opinion notes, that this court is “authorized to affirm the trial court’s judgment if the record ‘clearly indieat[es] that the award comports with the evidence regarding the parties’ incomes’ and, that the trial court adhered to the guidelines.” (Quoting Mosley v. Mosley, 747 So.2d 894, 898 (Ala.Civ.App.1999).) However, in this case, I conclude that the judgment of the trial court fails to “comport with the evidence” regarding the father’s income. Therefore, I would reverse the judgment of the trial court and remand the case.

      . As noted in Judge Thompson's dissent, in the father’s postjudgment motion, he alleged that his insurance expenses were $313 per month. However, the father presented no evidence that he actually paid that amount. As we will discuss later in the opinion, the testimony and documentary evidence presented at trial established that the insurance costs were $294 per month.

      . I note that the main opinion uses the figure $294 as the insurance cost; that figure is the amount the trial court found in its April 3, 2002, order, to be the increased monthly cost of the health insurance.


author: THOMPSON, Judge.

text:
    Milford W. BURNETT and Evelyn Burnett v. Miguel A. MUNOZ and Bernice Blackwell Munoz.
    2010890.
    Court of Civil Appeals of Alabama.
    Dec. 13, 2002.
    Linda L. Howard of Laurence P. Sutley & Associates, P.C., Foley, for appellants.
    Bayless E. Biles of Wilkins, Bankester, Biles & Wynne, Bay Minette, for appel-lees.
   THOMPSON, Judge.

Miguel A. Munoz and Bernice Blackwell Munoz sued coterminous landowners Milford W. Burnett and Evelyn Burnett. In their complaint, the Munozes sought a judgment declaring a strip of land located between their property and that of the Burnetts to be a public road. For the purposes of this decision, we will refer to the strip of property at issue as a “road”; in doing so, we are not deciding whether the road was a public or a private road.

The Burnetts answered the Munozes’ complaint and denied that the road was a public road. The trial court conducted a hearing at which ore tenus evidence was presented. On April 4, 2002, the trial court entered a judgment declaring the road to be a public road. The Burnetts filed a postjudgment motion; the trial court denied that motion. The Burnetts appealed. The case was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala.Code 1975.

The parties’ properties are located in Baldwin County; the record does not indicate whether thé road and the parties’ properties are located in a municipality. The Burnetts have owned their property for 40 years- and have lived on the property for 11 years. The Munozes have owned and resided on their property for 27 years. The road at issue in this appeal runs between two parcels of real property owned by the parties and provides access for the Munozes to that part of their property on which the house in which they reside is located. The road also allegedly provides access to two additional parcels of real property, one of which is owned by the Burnetts and the other by the Munozes.

The ore tenus hearing primarily focused on evidence presented by the parties regarding their dispute over the width of the road. The Munozes contend that the road is 30 feet wide. The Burnetts contend that the road is actually only 15 feet wide and that the additional 15 feet claimed by the Munozes constitutes an encroachment on their property.

The record indicates that the road is unpaved. Miguel Munoz testified that he has maintained the road for 27 years. Also, Munoz testified that the county has installed a “culvert” under the road and that the culvert is 30 feet long.

At one point on the road, a large oak tree stands in what the Munozes contend is the middle of the 30-foot-wide road. Munoz testified that one may drive a vehicle on the road to either the left side or the right side of the tree. The Burnetts disputed whether it has always been possible to drive around the left side of the tree.

The record does not clearly indicate the length of the road. However, the road extends past the property on which the Munozes’ house is located, past a parcel owned by the Burnetts that is located directly behind the property on which the Munozes’ house is located, and ends at a parcel of farmland owned by the Munozes. The Munozes presented evidence indicating that they or their predecessors in interest had used the road to access their properties since at least the 1960’s; some evidence was presented indicating that the Munozes’ predecessors in interest had used the road to access the property for approximately 50 years. The record also contains some vague testimony indicating that at some point, two “Jim Walter homes” were located on the Munozes’ property and that the residents of those houses used the road to access those houses. Those houses are no longer located on the property; it is unclear from the record when those houses were removed from the property.

In its judgment, the trial court found that the evidence presented at the ore tenus hearing established that the road had been used as a public road for more than 50 years.

“A public road is established in one of the following three ways: (1) by a regular proceeding for that purpose; (2) by a dedication of the road by the owner of the land it crosses and a subsequent acceptance by the proper authorities; or (3) by the road’s being used generally by the public for a period of 20 years.”

Fox Trail Hunting Club v. McDaniel, 785 So.2d 1151, 1154 (Ala.Civ.App.2000) (citing Auerbach v. Parker, 544 So.2d 943 (Ala.1989)). On appeal, the Burnetts contend that the trial court’s determination that the road was a public road is not supported by the evidence. However, another issue is dispositive of this appeal.

Rule 19(a), Ala. R. Civ. P., provides in part:

“(a) Persons to Be Joined if Feasible. A person who is subject to jurisdiction of the court shall be joined as a party in the action if (1) in the person’s absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may (i) as a practical matter impair or impede the person’s ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest.”

It is well settled that the failure to join necessary parties is an issue that may be raised for the first time on appeal by the parties or by an appellate court ex mero motu. Boles v. Autery, 554 So.2d 959 (Ala.1989); Long v. Vielle, 549 So.2d 968 (Ala.1989); J.C. Jacobs Banking Co. v. Campbell, 406 So.2d 834 (Ala.1981); Mead Corp. v. City of Birmingham, 350 So.2d 419 (Ala.1977); Box v. Box, 253 Ala. 297, 45 So.2d 157 (1950); Amann v. Burke, 237 Ala. 380, 186 So. 769 (1939). The failure to join a necessary party is a jurisdictional defect. Long v. Vielle, supra (citing Rogers v. Smith, 287 Ala. 118, 248 So.2d 713 (1971)).

Our supreme court has discussed the issue of necessary parties in actions involving a dispute regarding a public road. In Holland v. City of Alabaster, 566 So.2d 224 (Ala.1990), the City of Pelham vacated a public road that was located within its city limits. That road was abutted on both sides by land owned by Holland; after the City of Pelham vacated the road, Holland blocked access to the road. The City of Alabaster and a person who had used the road sued Holland, seeking access to the road. The trial court, among other things, set aside the City of Pelham’s vacation of the road and restrained Holland from blocking access to the road. On appeal, Holland maintained that the trial court erred in failing to join the City of Pelham as a necessary party to the action. Our supreme court agreed. The court held that the trial court should have joined the City of Pelham as a necessary party under Rule 19(a), Ala. R. Civ. P., because the trial court was required to have jurisdiction over the City of Pelham before it could enter any ruling that affected the City of Pelham’s interest in the property at issue in that case. Holland v. City of Alabaster, 566 So.2d at 228. In the absence of the City of Pelham as a party to the action, the trial court lacked that jurisdiction to enter a ruling affecting the City of Pelham’s rights. In reaching its holding in Holland, the supreme court discussed whether the trial court could grant complete relief where the City of Pelham had not been joined as a necessary party:

“Can complete relief be afforded among those already parties? We do not believe so. The City of Pelham is required under the trial court’s order to assume duties of policing and maintaining a road that it wished to vacate. The City of Pelham is also now required to maintain a public thoroughfare, which the evidence shows may or may not be suitable for traffic, without any hearing on the matter. Moreover, the City of Pelham will now incur liability to the public for any failure of maintenance with respect to this road. While ordering Holland to refrain from obstructing the road will provide Hill with a possible route to travel, it does so at the expense of the City of Pelham. We cannot see that Alabaster should be afforded relief of the opening of a road that is not within its city limits, and lies within the city limits of Pelham in the absence of the City of Pelham’s presence in the judicial proceedings that afford Alabaster this remedy....
“Does the City of Pelham claim an interest relating to the subject of the action so that the disposition of the case without the City, as a practical matter, will impair or impede its ability to protect that interest? We believe so. Although Holland is the party actually claiming that the City of Pelham has an interest, the City of Pelham cannot properly protect its interest in vacating roads within its municipal limits unless it is given a fair hearing before a vacation of such a road is set aside.”

Holland v. City of Alabaster, 566 So.2d at 227.

In Boles v. Autery, supra, our supreme court used similar reasoning in a case involving whether a road was a public or a private road. In Boles v. Autery, buyers of certain real property located in Autauga County sued the sellers of that property alleging that the sellers had breached the parties’ contract by failing to advise them that a road accessing the property was a private, rather than a public, road. The trial court found in favor of the buyers. On appeal, the sellers argued that Autauga County was a necessary party to the action. Our supreme court agreed, and it reversed the trial court’s judgment in favor of the buyers and remanded the case to the trial court. The court explained that:

“The trial court’s determination of whether the road was public or was private might affect not only the rights of the individual litigants but also the rights of members of the public to use the road, the duty of the county to maintain it, and the liability of the county for failure to maintain it. If the county is not joined as a party, then neither it nor other members of the public are bound by the trial court’s ruling. Accordingly, if the county and other persons are not bound, then the status of the road as public or private is subject to being litigated again, and the results of later litigation may be inconsistent with the results of the initial litigation. We note the following as a possible example: Suppose the landowners, over the course of time, allow the road to fall into disrepair, and a school bus carrying children has an accident because of the road’s deterioration. Would the county be liable for its failure to maintain the road? Coupled with the other problems discussed, that possibility of contradictory rulings about the status of the road as public or private is a sufficient reason to require the joinder of Autauga County as a party. See also Johnston [v. White-Spunner, 342 So.2d 754 (Ala. 1977)]. ‘The desirability of judicial economy must give way to the orderly administration and demands of justice.’ Mead Corp. v. City of Birmingham, 350 So.2d 419 (Ala.1977).”

Boles v. Autery, 554 So.2d at 961.

In this case, the parties did not join Baldwin County or any municipality in which the road is located (if it is located within a municipality) in the action to determine whether the road was a public road. It is clear from the authorities discussed above that a county or municipality in which a road is located incurs liabilities if the road is declared to be a public road. See Holland v. City of Alabaster, supra; Boles v. Autery, supra. We conclude that before the trial court may declare a road to be a public road, and thereby impose on a county or a municipality liabilities such as the responsibility to maintain and police the road, the affected county or municipality must be made a party to the action before the trial court. In this case, neither the county nor the municipality, if any, in which the road at issue is located was not a party to the action before the trial court; that county or municipality is a necessary party to any action seeking to have the road declared to be a public road. Therefore, we reverse the trial court’s judgment and remand for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . Jim Walter Homes, Inc., builds houses to an agreed-upon percentage of completion (up to 90%), and the buyer finishes the house.


author: THOMPSON, Judge. MURDOCK, Judge,

text:
    Merrill Edward DeYOUNG v. Cheryl D. DeYOUNG.
    2010835.
    Court of Civil Appeals of Alabama.
    Dec. 13, 2002.

      Jonathan E. Lyerly, Birmingham, for appellant.
    William J. Benton, Jr., Phenix City, for appellee.
   THOMPSON, Judge.

Cheryl DeYoung (“the mother”) and Merrill Edward DeYoung (“the father”) were divorced by a judgment entered on August 13, 1999. On June 27, 2001, the custody provision of that divorce judgment was modified. The husband and the wife had two children during the marriage. Pursuant to the trial court’s June 27, 2001, modification, each parent was awarded custody of one child, and neither parent was ordered to pay child support.

On November 2, 2001, the father filed a petition to modify custody; in his petition he alleged that the son as to whom custody was awarded to the mother had lived at the father’s residence on a full-time basis since shortly after the June 27, 2001, order modifying custody. On February 8, 2002, the mother filed an answer and a petition for rule nisi. On February 12, 2002, the trial court held a hearing. At the hearing, the father and the mother announced that they had reached a settlement agreement concerning custody; the only issues left for adjudication were the amount of the mother’s child-support payment and which party was entitled to take the income-tax deduction for the children. On April 10, 2002, the trial court entered a judgment that incorporated the terms of the parties’ agreement; the trial court awarded the father primary physical custody of both children and awarded the mother standard visitation rights. The mother did not appeal from the judgment awarding custody of the children to the father. The trial court ordered the mother to pay $100 per month in child support and allowed each party to take a tax deduction for one child. The father timely appealed, arguing only that the trial court erred in calculating the mother’s child-support obligation.

Modification of child support is a matter that rests within the sound discretion of the trial court; the court’s judgment on that matter 'will not be reversed unless there is an abuse of discretion or unless the judgment is plainly or palpably wrong. Bobo v. Bobo, 585 So.2d 54, 56 (Ala.Civ.App.1991).

At the February 12, 2002, hearing, the trial court heard the arguments of the parties’ attorneys. The father and the mother did not testify. The mother’s income, according to the attorneys, was estimated at $37,000 annually. The father is self-employed, and operates a business called “Fantastic Flora.” On his CS-41 form, the father reported income of $1,225 per month. The mother, through her attorney, argued that the father’s CS-41 form was “suspicious.” According to the mother’s attorney, at the time of the August 1999 divorce hearing, the father had stated that his annual income was $35,000.

The trial court announced that if neither side could produce new evidence then the court had sufficient evidence to decide the tax-deduction and child-support issues. The trial court stated it felt “pretty comfortable with the history of the case” based on testimony received at two previous hearings. The trial court allowed the mother a tax deduction for the younger child. The father’s attorney asked the trial court to recognize that the youngest child, whose custody was originally awarded to the mother, was, in fact, living with the father. The trial court answered, “Being familiar with the history of the case, I think I know why that happened and all that will play into my decision about what child support is going to be and I will make that determination.”

On April 10, 2002, the trial court ordered the mother to pay child support in the amount of $100 per month. The trial court acknowledged that the child-support award deviated from the requirements of the Rule 32, Ala. R. Jud. Admin. The trial court stated two reasons for the deviation. First, the court found that the father had manipulated the children while they were in his custody and control. According to the trial court, the father’s manipulation of the children resulted in the children’s refusing to live with their mother and essentially defeated the trial court’s original judgment, which granted primary custody of the youngest child to the mother. According to the trial court, the children’s refusal to live with the mother had resulted in “the children stay[ing] with [the father] even though [the mother] and the court know this is not in the children’s best interest.” Second, the trial court questioned the validity of the father’s reported monthly income. The trial court stated that it “put no faith in the [father’s] contention as to the amount of his monthly income.”

On appeal, the father first argues that the trial court erred in awarding child support in an amount that deviated from the child-support guidelines in Rule 32, Ala. R. Jud. Admin. Rule 32(A) and (C), Ala. R. Jud. Admin., provide a method of determining the amount of child support according to the parents’ combined incomes and a schedule of basic child-support obligations. There is a rebuttable presumption that the amount of child support calculated pursuant to the Rule 32 guidelines is the “correct amount of child support to be awarded.” Rule 32(A), Ala. R. Jud. Admin.

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.’”” M.S.H. v. C.A.H., 829 So.2d 164 (Ala.Civ.App.2002) (quoting Thomas v. Norman, 766 So.2d 857, 859 (Ala.Civ.App.2000), quoting in turn Martin v. Martin, 637 So.2d 901, 902 (Ala.Civ.App.1994)) (emphasis omitted). “ ‘Compliance with Rule 32(E) is mandatory, even though the trial court may find that the application of the guidelines would be unjust or inequitable.’ ” M.S.H. v. C.A.H., 829 So.2d at 169 (quoting Thomas, 766 So.2d at 859). When the court determines that the application of the guidelines would be manifestly unjust or inequitable and then deviates from those guidelines in setting a support obligation, the court must make the findings required by Rule 32(A)(ii), Ala. R. Jud. Admin. M.S.H. v. C.A.H., supra (citing Thomas, 766 So.2d at 859). Rule 32(A), Ala. R. Jud. Admin., allows the trial court to deviate from the guidelines so long as the deviation is based on “evidence presented in court” contained in a “written finding on the record.” In other words, the subsection requires the trial court to state a reason justifying its deviation from the guidelines. However, because child support is for the benefit of the minor child, see State ex rel. Shellhouse v. Bentley, 666 So.2d 517, 518 (Ala.Civ.App.1995), the best interest of the child is the controlling consideration of the trial court in any action seeking to modify child support. Gautney v. Raymond, 709 So.2d 1279, 1281 (Ala.Civ.App.1998).

In its April 10, 2002, judgment, the trial court acknowledged that it was deviating from the Rule 32 child-support guidelines. The trial court did not explain how it reached the $100 child-support award; it stated only that the deviation in the child-support award was due to the father’s manipulation of the children and his lack of credibility regarding his reported monthly income. The trial court based its findings of fact on evidence received during hearings held before the February 2002 hearing, so there is no testimony in the record that this court can review. We note that the father briefly addressed the trial court’s finding that he manipulated the children, and he contends that the finding is not supported by the evidence. In considering this case, the trial court clearly indicated that it recalled the ore tenus evidence it had received in the two earlier hearings. The father did not include, as part of the record on appeal, the transcripts of those hearings; therefore, this court is unable to say that the trial court’s findings were unsupported by the evidence. See Eagle Bail Bond v. State, 757 So.2d 433, 436 (Ala.Civ.App.1999) (where the wife did not include the transcript of the hearing on the husband’s petition to modify alimony, this court must “presume that the evidence supports the trial court’s determination”).

The record clearly indicates that in deviating from the child-support guidelines, the trial court considered the father’s manipulation of the children and his interference with their relationship with the mother. This court does not condone the father’s misconduct. However, child support is for the benefit of the minor children, and a minor child’s right to parental support is a fundamental right. Abel v. Abel, 824 So.2d 767 (Ala.Civ.App.2001). Deviating from the child-support guidelines based on a parent’s misconduct penalizes the offending parent but also punishes the children because they may receive less financial support than both parents are capable of providing. We applaud the trial court’s vigilance in attempting to protect the children’s relationship with their mother. However, the court’s contempt powers are a sufficient method of regulating the father’s conduct in a manner that will best protect the children and serve their best interests. We must reverse that part of the trial court’s judgment ordering the mother to pay child-support of $100 per month.

The father also argues on appeal that the trial court erred in awarding the mother an income-tax deduction for one of the children. The award of the income-tax-dependency exemption is a matter of discretion for the trial court and will not be reversed on appeal absent an abuse of discretion. Flanagan v. Flanagan, 656 So.2d 1228 (Ala.Civ.App.1995). The comment to Rule 32, Ala. R. Jud. Admin., states that the child-support schedule assumes that the custodial parent will receive the tax deduction. Although it is assumed that the custodial parent will receive the income-tax deduction, the trial court can deviate from the Rule 32 guidelines and award the tax exemption to the noncustodial parent if the trial court states the reasons for deviation, in accordance with Rule 32(A)(ii), Ala. R. Jud. Admin. Flanagan v. Flanagan, supra.

The trial court stated at the February 12, 2002, hearing that the father did not have sufficient income to benefit from the tax deduction and stated that it would award the mother the tax deduction. The trial court’s decision does not conform with Rule 32(A)(ii), Ala. R. Jud. Admin., because it does not state that awarding the deduction to the father would be “manifestly unjust or inequitable.” Despite our understanding of the trial court’s reason for awarding the exemption to the mother, we must remand this cause with instructions for the trial court to give a statement of its reasons, as required by Rule 32(A)(ii), for doing so. Flanagan, supra. Therefore, this issue is remanded to the trial court for a factual determination in accordance with the Rule 32(A)(ii).

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

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

MURDOCK, Judge,

concurring in part and dissenting in part.

I concur in the majority opinion except to the extent explained below.

Like the majority, I too would remand this cause for the trial court to enter a judgment that complies with the requirements of Rule 32(A), Ala. R. Jud. Admin., insofar as the income-tax-deduction issue is concerned. However, based upon my reading of Rule 32(A), my instructions to the trial court would vary slightly from those in the majority opinion.

The only requirement in Rule 32(A) for a “written finding” is the requirement that, in order to rebut the presumption that the amount of the award resulting from the application of the child-support guidelines established by Rule 32 is the correct child-support amount, a trial court make a “written finding on the record” indicating that the application of the guidelines would be “unjust or inappropriate.” The trial court’s judgment in this case does not contain such a finding; therefore, this cause must be remanded.

As for Rule 32(A)(ii), however, that subsection merely provides that a finding such as that described above may be “based upon ... [a] determination by the court ... that application of the guidelines would be manifestly unjust or inequitable,” and, if it is based on such a determination, the trial court must make that determination “based upon evidence presented in court and stating the reasons therefor.” (Emphasis added.) In this case, the trial court stated on the record in open court “the reasons therefor.” I, therefore, am of the view that that requirement of Rule 32(A)(ii) has been satisfied in this case.

      . The record does not contain the transcripts from those two hearings.