text:
    J.H.F. v.P.S.F. P.S.F. v. J.H.F.
    2000784.
    Court of Civil Appeals of Alabama.
    May 17, 2002.

      Floyd Minor and John Olszewski of Minor & Olszewski, L.L.C., Montgomery, for appellant/cross-appellee J.H.F.
    Judy H. Barganier, Montgomery, for ap-pellee/eross-appellant P.S.F.
   THOMPSON, Judge.

J.H.F. (“the father”) sued P.S.F. (“the mother”) for a divorce, seeking, among other things, custody of the parties’ children. The mother answered, denying the material allegations in the father’s complaint. The father later amended his complaint to allege that the mother had committed adultery. The trial court conducted a hearing and received ore tenus evidence.

On January 5, 2001, the trial court entered a judgment divorcing the parties and awarding the parties joint legal custody of the children, with the mother having primary physical custody. The judgment also divided the parties’ marital property. In addition, the trial court ordered the father to pay $580 per month in child support and specified that the father’s child-support obligation would automatically increase beginning in July 2001. Both parties filed postjudgment motions. On March 21, 2001, the trial court entered a postjudgment order in which, among other things, it eliminated the provision in its divorce judgment that had ordered the automatic increase in the father’s child-support obligation. The mother filed a second postjudgment motion on April 20, 2001; in that motion, she argued that the trial court had erred in eliminating the automatic increase in child support. The mother’s April 20, 2001, postjudgment motion worked to extend the time for taking an appeal from the trial court’s judgment. Ex parte Dowling, 477 So.2d 400 (Ala.1985) (where a trial court grants a party’s postjudgment motion and modifies its judgment, the party newly aggrieved by that modified judgment may file a successive postjudgment motion); Woodall v. Woodall, 506 So.2d 1005, 1007 (Ala.Civ.App.1987) (“In situations where a judge has granted a postjudgment motion for one party, the nonmoving party aggrieved by the motion has the right under our rules to file his or her own postjudgment motions.”).

On April 27, 2001, the father appealed to this court. We note, however, that at the time the father filed his notice of appeal, the judgment of the trial court was not yet final; therefore, the father’s appeal was deemed to be held in abeyance until such time as the trial court entered a final judgment or the mother’s April 20, 2001, postjudgment motion was denied by operation of law pursuant to Rule 59.1, Ala. R. Civ. P., whichever first occurred. See Rule 4(a)(5), Ala. R.App. P.

On April 30, 2001, the trial court entered an order pursuant to the mother’s April 20, 2001, postjudgment motion. In its April 30, 2001, postjudgment order, the trial court required the parties to submit new child-support income affidavit forms in order for it to recalculate the father’s child-support obligation pursuant to the Rule 32, Ala. R. Jud. Admin., Child Support Guidelines. The trial court’s April 30, 2001, order stated, in part, that “[i]f the [Rule 32 Child Support Guidelines] support an adjustment, it will be made without further hearing.”

The parties submitted new CS-41 forms, and on June 21, 2001, the trial court entered an order decreasing the father’s child-support obligation to $360 per month. On July 17, 2001, the mother filed yet another postjudgment motion; because the June 21, 2001, order had further decreased the father’s child-support obligation, the mother’s July 17, 2001, postjudgment motion also worked to extend the time for taking an appeal. See Ex parte Dowling, supra; Woodall v. Woodall, supra. In the July 17, 2001, motion, the mother argued that the trial court had erred in its calculation of the father’s child-support obligation. On August 21, 2001, this court entered an order formally stating that the father’s appeal was being held in abeyance pending the trial court’s ruling on the pending postjudgment motion.

On August 23, 2001, the trial court entered an order denying the mother’s July 17, 2001, postjudgment motion; that order constituted a final judgment — it finally determined the rights and liabilities of the parties. See Bean v. Craig, 557 So.2d 1249, 1253 (Ala.1990). The father’s notice of appeal is deemed to have been filed on August 23, 2001, the date the trial court entered that final judgment. Rule 4(a)(5), Ala. R.App. P. The mother timely appealed on September 17, 2001. See Rule 4(a)(2), Ala. R.App. P.

The record indicates that the parties were married on August 2, 1986. The parties’ twin sons were born in 1992. During their “separation,” the parties continued to live together in the marital residence; they each had the responsibility for taking care of their children on alternate days.

The mother has a college degree. The mother did not work outside the home for the first few years of the children’s lives, but she returned to the workforce in 1995 and was employed as a secretary. In February 1999, the mother was hired to work as the secretary of her church; she received a salary of $28,600 per year. It is undisputed that the mother had an affair with a minister at her church; as a result, in the late spring of 2000, the mother lost her job with the church. At the time of the trial in this matter, the mother worked part-time, earning $8 per hour. The income affidavit the mother filed in compliance with the trial court’s April 30, 2001, postjudgment order indicated that she had a new job at which she earned approximately $27,500 per year.

The father works as a real-estate appraiser. The father testified at the trial that his income had decreased because his employer’s business had suffered a decline. The father testified that he had received an offer of employment for a job that would pay a higher salary, but that job would require him to move to Baldwin County. It is undisputed that the mother did not want to move to Baldwin County and that, because of the mother’s objection, the father had not taken the job at the time of the trial. However, the father testified at the trial that the job was still available to him and that he planned to accept the job and move to Baldwin County. The father testified that when he moved to Baldwin County, he expected to receive a total annual income of $62,000.

The father testified that he wanted custody of the parties’ children; he testified that he believed the children should move with him to Baldwin County in part because he believed that it was less likely that they would learn of the mother’s affair if they did not live in Montgomery County. The father testified regarding the various activities, such as fishing, woodworking, and soccer, in which he and the children participate. The father presented evidence indicating that he had purchased a house in Baldwin County and that he had friends there who would help him take care of the children. The father’s father and the father’s grandfather reside in Baldwin County. The father’s mother resides in Montgomery County.

The mother testified that she has been the children’s primary caretaker since they were born and that she is active in the children’s lives. She testified that it was only when the parties separated that the father began taking an active role in the daily routine of caring for the children. The mother’s extended family lives in Montgomery County. The mother testified that she did not believe the children should be removed from their home and family in Montgomery.

The father testified that the mother could not maintain discipline over the parties’ children. The mother and several other witnesses testified that the father was often harsh with the children and that he “barked” orders at them.

Much of the evidence at the trial focused on each party’s allegations that the other party had caused the breakdown of the marriage. No purpose would be served by a lengthy recitation of that evidence; therefore, this court sets forth only a brief summary of those facts.

Each party accused the other of drinking to excess, and each party denied the other’s allegation. Much of the evidence at the trial focused on the mother’s affair with the family’s minister. The mother admitted to the affair, but she testified that the affair had not caused the breakdown of the parties’ marriage. The mother testified that the parties’ marriage had been tumultuous. She presented evidence that the father verbally abused her and that he was overly critical of her. The mother testified that the parties had begun discussing the possibility of obtaining a divorce before she began the affair.

The father testified that he and the mother were incompatible. The father denied making derogatory remarks about the mother. The father testified that he learned of the mother’s affair with the minister in late July 2000, approximately one month after he filed his complaint seeking a divorce.

The mother presented no evidence regarding the value of the parties’ marital assets. Therefore, the father’s testimony and evidence regarding that issue are undisputed. The parties’ marital home was valued at $103,000. The father had obtained a $95,000 unsecured loan to purchase that home; he asked the trial court to award the marital home to the mother but to require her to obtain financing to convert the unsecured loan into a mortgage on the home. The father presented evidence indicating that the parties own a van worth $6,000 and that he has a truck with a total equity of $10,000. The mother had $4,985 in two separate retirement accounts; the father’s 401(k) plan had a value of $15,696. At the time of the trial in this matter, the father also had a checking account with a $400 balance.

The father and the mother’s brother were joint owners of J&M, L.L.C., which owns several parcels of rental property. The father’s equity interest in the rental property in that limited liability company totaled $31,412 at the time of the trial. In addition, the father and the mother owned an undivided one-third interest in F&C, L.L.C., a business created by the father’s family; that company also owns rental property. The father valued the parties’ one-third interest in F&C, L.L.C., at $18,338.

During their marriage, the parties incurred various credit-card debts; the parties’ credit-card indebtedness totaled $9,681. The parties also had an equity line of credit. The father testified that the parties had paid the outstanding balance on the equity-line of credit in late spring 2000. However, the father testified that while this case was pending, he had borrowed on that line of credit and that, at the time of the trial, he owed a balance of $5,571. The father testified that he also owed his mother a total of $21,000 for various amounts of money she had provided the parties over the course of their marriage. Upon questioning by the trial judge, however, the father admitted that he had no documentation to support his claim regarding that indebtedness to his mother.

In its divorce judgment, the trial court awarded the mother the parties’ marital home, subject to her obtaining a mortgage for the amount of the unsecured loan the father had obtained in his own name in order to purchase the house; the mother was to be solely responsible for the payments on that mortgage indebtedness. In addition, the trial court awarded the mother the van she regularly drove, the retirement accounts in her name, and the father’s interest in J&M, L.L.C. The trial court ordered the mother to be responsible for $700 of the marital debt.

The trial court awarded the father his truck, his 401 (k) retirement account, the funds in his checking account, and the parties’ one-third interest in F&C, L.L.C. The trial court ordered the father to pay $14,572 of the marital debt. The divorce judgment also provided that each party was responsible for the indebtedness owed to their respective family members.

On appeal, the father argues that the trial court erred in awarding primary physical custody of the parties’ children to the mother. In an initial custody determination, the parties stand on equal footing; no presumption inures in favor of either parent’s receiving custody of the children. Smith v. Smith, 727 So.2d 113 (Ala.Civ.App.1998). In making its initial award of custody, the trial court applies the best-interests-of-the-child standard. Ex parte Couch, 521 So.2d 987 (Ala.1988). The trial court must consider factors such as the children’s ages and each parent’s ability to provide for the emotional, social, moral, material, and educational needs of the children. Roberts v. Roberts, 802 So.2d 230, 233 (Ala.Civ.App.2001). The court may also consider other factors, such as the characteristics of each parent, including his or her age, character, stability, and health, as well as each parent’s relationship with the children. Id.; Smith v. Smith, supra. The trial court may consider a parent’s adultery in determining custody; however, “acts of adultery do not bar an award of custody” to the party who committed adultery. Etheridge v. Etheridge, 375 So.2d 474, 475 (Ala.Civ.App.1979). Rather, in order to deprive a parent of custody because of his or her act of adultery, there must be evidence that the adultery had a “direct bearing upon the welfare of [the] children.” Hearold v. Hearold, 620 So.2d 48, 49 (Ala.Civ.App.1993).

As part of his argument that the trial court erred in its custody determination, the father argues that the mother committed domestic violence against him and that, therefore, there is a presumption against awarding custody to her. See § 30-3-131, Ala.Code 1975. The evidence the father cites in this part of his argument indicates that the mother hit the father in the shoulder on two occasions when the parties were arguing; the father testified that the mother did not hurt or injure him. The trial court made no finding that those acts constituted domestic abuse under the Custody and Domestic or Family Abuse Act, §§ 30-3-130 through-136, Ala.Code 1975. This court may assume that the trial court made the findings necessary to support its judgment, i.e., this court may assume that the trial court found either that the acts did not occur or that the acts did not constitute domestic abuse. Ex parte Farm, 810 So.2d 631 (Ala.2001). Our review of the evidence in the record on appeal supports such a determination.

The record indicates that both parties love the children and that both parties have been active participants in the children’s lives. Although the father argues the mother’s adultery negatively impacted her ability to parent the children, the trial court specifically addressed that issue in its judgment:

“[E]ither party is able equally to meet the basic needs of the children. In making an award of primary physical custody to [the mother], [the Court] is motivated mostly by a reluctance to add to the disruption of a move to Baldwin County the disruption [caused by] the loss of a two-parent home.... The Court is satisfied that [the father] is close to his boys, that he has been an active participant in their school and extracurricular activities, but the same is true of [the mother]. And, all of [the mother’s family, including] the children’s grandfather, aunts and uncle, cousins, and even [the father’s] mother are here. Only [the father’s] father and grandfather are in the Baldwin County area.
“The Court in no way excuses or minimizes [the mother’s] infidelity, nor does it believe that she looks upon it lightly.... Yet, the Court sees no evidence of such widespread promiscuity as would adversely affect [the mother’s] role as mother and chief caregiver for the children. Simply put, it will be better for the children to remain in Montgomery County with their mother than to move to Baldwin County with their father.”

Those findings of fact clearly indicate that in making its initial custody determination, the trial court properly considered the factors set forth in Roberts v. Roberts, supra, and Smith v. Smith, supra. The trial court also considered the possible impact of the mother’s adultery on the children and determined that it had not had a detrimental effect on the children. After carefully reviewing the evidence in the record on appeal, we conclude that the evidence supports the trial court’s findings of fact. The record would support an award of custody to either party. Given the trial court’s specific findings of fact regarding the issue of custody, we cannot say that it abused its discretion in awarding primary physical custody of the children to the mother.

The father also argues that the trial court erred in fashioning its property division. A property division is required to be equitable, but not necessarily equal. Willing v. Willing, 655 So.2d 1064 (Ala.Civ.App.1995). In dividing the parties’ marital property, the trial court should consider

“ ‘the ages and health of the parties, the length of their marriage, their station in life and their future prospects, their standard of living and each party’s potential for maintaining that standard after the divorce, the value and type of property they own, and the source of their common property.’ ”

Brown v. Brown, 719 So.2d 228, 231 (Ala.Civ.App.1998) (quoting Covington v. Covington, 675 So.2d 436, 438 (Ala.Civ.App.1996)). “[T]he award or division [of marital property] need only be equitable and be supported by the particular facts of the case.” Ex parte Elliott, 782 So.2d 308, 311 (Ala.2000).

The father argues that the trial court awarded a disproportionate amount of marital property to the mother. The parties were married for approximately 14 years. Neither party testified regarding his or her health, but it is clear that both parties are capable of full-time employment. The mother has, over the years preceding the parties’ divorce, earned approximately $28,000 per year. The father testified that upon his move to Baldwin County, he expected to earn annual income of $62,000. Although the mother had had an extramarital affair, the record supports a conclusion that that fact alone did not cause the breakdown of the parties’ marriage. The mother presented evidence indicating that the father was verbally abusive and overly critical of her.

Our review of the record indicates that the trial court awarded the mother equity in marital assets totaling $145,397, less $98,200 in indebtedness on those assets, for a total equity amount of $47,197. The trial court awarded the father a total of $44,434 in marital assets, less indebtedness of $14,572. The father claims in his brief on appeal that he is required to repay the indebtedness to his mother. However, the father presented no evidence regarding that indebtedness or regarding whether he was required to repay his mother for the amounts she had provided the parties during their marriage.

The trial court awarded each party the vehicle he or she normally drove. It also awarded the parties’ primary marital asset, the marital home, to the mother; we note that that award enabled the mother and the parties’ children to remain in their home. The mother is solely responsible for making the mortgage payments on the marital home. Although the father was ordered to pay the vast majority of the other marital indebtedness, the father testified that he expected to earn income totaling more than twice the amount earned by the mother. The property distribution favors the mother. We note, however, that the trial court awarded each party the interests in the limited liability company in which his or her family was involved. Were we making the initial property distribution, this court might not have made the same property distribution as did the trial court. However, “the appellate court is ‘simply to determine if there was sufficient evidence before the [trial] court to support its decision against a charge of arbitrariness and abuse of discretion.’ ” Ex parte Elliott, 782 So.2d at 311 (quoting Ex parte Smith, 673 So.2d 420, 422 (Ala.1995)). Given the particular facts of this ease, we cannot say that the trial court’s property division was plainly and palpably wrong. See Ex parte Elliott, supra.

We next address the issue the mother raises in her cross-appeal. In its January 5, 2001, divorce judgment, the trial court ordered the father to pay $580 per month in child support, and it provided that the father’s child-support obligation would automatically increase to $1,040 per month in July 2001. In its March 21, 2001, postjudgment order, the trial court set aside the part of its judgment providing for an automatic increase in the father’s child-support obligation; the trial court specifically found that “[o]n review, it probably is better not to assume that circumstances will change by then.” See Morrison v. Kirkland, 567 So.2d 363, 364 (Ala.Civ.App.1990) (“The trial court may not speculate on a future ability or need.”). The mother filed another postjudgment motion and requested a hearing on that motion. In response, on April 30, 2001, the trial court required the parties to submit new CS-41 income affidavits. Both parties did so. Based on those income affidavits and the Rule 32, Ala. R. Jud. Admin., Child Support Guidelines, but without conducting a hearing, on June 21, 2001, the trial court reduced the father’s child-support obligation to $360 per month. The wife filed another postjudgment motion, again requesting a hearing, and the trial court denied that motion. The wife argues that the trial court’s June 21, 2001, postjudgment order impermissibly reduced the father’s child-support obligation without affording her a hearing.

A trial court commits error when it fails to conduct a hearing requested by a party on a Rule 59, Ala. R. Civ. P., postjudgment motion. Kitchens v. Maye, 623 So.2d 1082 (Ala.1993). However, that error is not necessarily reversible error. Id. substantial rights of the parties.’ See Greene [v. Thompson,] 554 So.2d [376,] 380-81 [ (Ala.1989) ]; Walls [v. Bank of Prattville,] 554 So.2d [381,] 382 [(Ala.1989) ]. In Greene v. Thompson, supra, [our supreme court] formulated a test to determine when the denial of a Rule 59(g) request for a hearing is harmless error:

“Under Rule 45, Ala. R.App. P., the failure to grant a hearing on a motion for new trial pursuant to Rule 59(g) [, Ala. R. Civ. P.,] is reversible error only if it ‘probably injuriously affected
“ ‘Harmless error occurs, within the context of a Rule 59(g) motion, where there is either no probable merit in the grounds asserted in the motion, or where the appellate court resolves the issues presented therein, as a matter of law, adversely to the movant, by application of the same objective standard of review as that applied in the trial court.’
“554 So.2d at 381.”

Kitchens v. Maye, 623 So.2d at 1088-89 (footnote omitted).

We recognize that a trial court may in certain instances consider new evidence submitted in support of a motion made pursuant to Rule 59, Ala. R. Civ. P. See Ex parte Johnson, 673 So.2d 410 (Ala.1994) (a party may, but is not required to, submit additional evidence in support of a Rule 59, Ala. R. Civ. P., postjudgment motion); McGriff v. Owen, 791 So.2d 961 (Ala.Civ.App.2000) (affirming the trial court’s refusal to take additional evidence where the evidence would be merely cumulative). In this case, the evidence was not cumulative, but represented a departure from that evidence presented at the trial. The mother argues that she was not given an opportunity to cross-examine the father regarding the newly submitted evidence, which indicated that his income had decreased since the time of the trial of this matter. The mother also contends that the evidence could support a finding that the father is voluntarily underemployed, and, therefore, that income should be attributed to the father for the purpose of calculating his child-support obligation. See Rule 32(B)(5), Ala. R. Jud. Admin.

The trial court based its $200 per month reduction in the father’s child-support obligation solely on the new evidence the father presented in his income affidavit; it did not afford the mother an opportunity to dispute that evidence. We find that the trial court should have conducted a hearing. See Martin v. Martin, 637 So.2d 901, 903 (Ala.Civ.App.1994) (“[I]f one party’s statement of income form is disputed by the other party, then that issue can be resolved by competent evidence at the trial court level.”) Given the particular facts of this case, we cannot conclude that the trial court’s failure to conduct the requested Rule 59, Ala. R. Civ. P., hearing before altering the father’s child-support obligation based on new evidence was harmless error. Therefore, we must reverse as to this issue.

The appellant’s request for an attorney fee is denied.

AFFIRMED AS TO THE APPEAL; REVERSED AND REMANDED AS TO THE CROSS-APPEAL.

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


source: Caselaw Access Project

author: PITTMAN, Judge.

license: Public Domain

text:
    Shirley Diane JOHNSON v. Iris L. JOHNSON.
    2010086.
    Court of Civil Appeals of Alabama.
    May 17, 2002.

      Debra Bennett Winston, Birmingham, for appellant.
    Andrew Laplante, Bessemer, for appel-lee.
   PITTMAN, Judge.

This is an appeal from the trial court’s judgment in a case involving the division and sale of property.

On November 15, 1995, shortly after the death of her husband, Shirley Diane Johnson (hereinafter referred to as “the wife”) filed with the probate court a petition to administer the estate of the decedent. On February 10, 1998, the decedent’s daughter, Iris L. Johnson (hereinafter referred to as “the daughter”) sued the wife and the decedent’s sons, Henry Lamar Johnson, Jr., and Brandon Earl Johnson (hereinafter referred to as “the sons”) in circuit court seeking sale of property belonging to the decedent and a division of the proceeds. The complaint contained two counts, one for sale and division and one alleging that the wife had intentionally interfered with the daughter’s interest in the decedent’s estate, the bulk of which consisted of a house owned by the decedent at the time of his death.

On October 22, 1999, the wife filed with the circuit court a claim for homestead allowance, exempt property, and family allowance. On February 16, 2000, the wife filed a verified petition for removal of the estate to circuit court. The circuit court held a hearing on June 19, 2001; at that hearing the court took testimony and heard the arguments of counsel. It then took the matter under advisement and asked that any further arguments be submitted on briefs. On September 12, 2001, the trial court entered an order addressing the sale-and-division issue. This order was amended on October 5, 2001, and after the wife’s postjudgment motions were denied, the wife appealed to the Supreme Court. The Supreme Court, pursuant to § 12-2-7(6), Ala.Code 1975, transferred the case to this Court.

This appeal is due to be dismissed as not being from a final judgment. Any ruling that adjudicates the rights and liabilities of fewer than all the parties in a case, or that disposes of fewer than all the claims, is ordinarily not final as to any of the parties or as to any of the claims. Rule 54(b), Ala. R. Civ. P.; see McGlothlin v. First Alabama Bank, 599 So.2d 1137 (Ala.1992). In such a case, the trial court can direct the entry of a final judgment, pursuant to Rule 54(b). In the absence of a Rule 54(b) certification of finality, the question whether a judgment is final is a jurisdictional question, and the reviewing court, on a determination that the judgment is not final, has a duty to dismiss the case. See Jim Walter Homes, Inc. v. Holman, 373 So.2d 869, 871 (Ala.Civ.App.1979).

A close review of the record indicates that at the least, there remains pending at the trial court the daughter’s claim that the wife intentionally interfered with the daughter’s interest in the decedent’s estate. In addition, there also remains the claim of the wife for her homestead allowance, exempt property, and family allowance. Last, there remains the administration of the decedent’s estate, which was properly removed to the circuit court and given the same case number as the action filed by the daughter, and for which the circuit court has properly taken jurisdiction.

Therefore, we dismiss this appeal as not from a final order pursuant to Rule 54(b), Ala. R. Civ. P.

APPEAL DISMISSED.

CRAWLEY and THOMPSON, JJ., concur.

YATES P.J., and MURDOCK, J., concur in the result.


author: THOMPSON, Judge.

text:
    Larry O. BAIN and Sharon Johnston v. Burl A. GRAY and Jean S. Gray. Jean S. Gray v. Larry O. Bain and Sharon Johnston.
    2010184.
    Court of Civil Appeals of Alabama.
    May 17, 2002.

      Deborah Alley Smith of Christian & Small, L.L.P., Birmingham; and Joseph T. Scarborough, Jr., Tallassee “of counsel,” for appellants/cross-appellees Larry O. Bain and Sharon Johnston.
    Robert B. Reneau of Reneau & Thornton, Wetumpka, for appellee/cross-appel-lant Jean S. Gray.
   THOMPSON, Judge.

On June 9, 1999, Burl A. Gray and Jean S.Gray sued Larry 0. Bain and Sharon Johnston (hereinafter collectively referred to as “the defendants”), seeking a declaratory judgment regarding the Grays’ ownership of a parcel of land (hereinafter “the parcel”) and seeking an order from the court enjoining the defendants from asserting any rights as to the parcel. The defendants answered and counterclaimed, seeking a judgment declaring that they owned the parcel and seeking an order ejecting the Grays from the parcel. The Grays answered the defendants’ counterclaim. Burl Gray died on August 27, 1999. On June 1, 2000, Jean S. Gray moved the court to have Burl Gray dismissed as a party to this action; the trial court granted that motion on June 29, 2000.

On September 28, 2000, the defendants filed a motion for a summary judgment. On December 22, 2000, jean Gray filed a. motion for a summary judgment and a brief in support of that motion. The trial court held a hearing on both parties’ summary-judgment motions. On May 4, 2001, the trial court denied the parties’ summary-judgment motions and issued an order dividing the parcel between the parties. The defendants filed a motion to alter, amend, or vacate the trial court’s May 4, 2001, order; that motion was denied by operation of law. The defendants appealed to the Supreme Court of Alabama; Gray cross-appealed. The Supreme Court of Alabama transferred the-appeals to this court pursuant to § 12-2-7(6), Ala.Code 1975.

The .05-acre parcel in dispute is located in the Kowaliga Bay Estates subdivision in Elmore County. The record indicates that the parcel is a rocky, narrow strip of land that slopes steeply down on its west side into a slough on Lake Martin. The parcel is bordered to the east by Big Oak Drive, to the north by Cove Drive, and to the south by Poplar Drive.

The record contains a copy of the original subdivision plat filed in September 1953. The subdivision plat divides the property composing the subdivision into units, then into blocks, and then into lots. From our review of the record, it appears that all of the smallest divisions of the property in the subdivision plat are designated by lot numbers, with the exception of the disputed parcel. However, on the subdivision plat, three lines are drawn across the parcel. The record indicates that those lines, if continued across Big Oak Drive, match the lines dividing Lots 2, 3, and 4, of Block No. 5, Unit No. 2, of the Kowaliga Bay Estates subdivision.

Gray owns Lots 2, 3, and 4, of Block No. 5, Unit No. 2, of the Kowaliga Bay Estates subdivision, the lots directly across Big Oak Drive from the parcel. The defendants own Lot 13 and Lot 14 of Block 8, Unit 2, of the Kowaliga Bay Estates subdivision. One of the defendants’ lots is directly across the slough from the parcel. The parties’ deeds describe their respective properties by lot, block, and unit numbers; all of the deeds preceding those deeds date back to the time the subdivision plat was recorded, and describe the properties by lot, block, and unit numbers. None of the deeds to the parties’ properties contain a metes-and-bounds description, and none of the deeds reference or describe the parcel.

The defendants assert that they are the rightful owners of the parcel; they claim their title through their predecessor in interest. The defendants purchased their lots from Tony G. Hornsby and Debra R. Hornsby. The deeds from the Hornsbys to the defendants describe the properties by block, unit, and lot numbers; the deeds do not specifically describe the parcel.

The defendants assert that the tax records from the Elmore County Revenue Department’s office refer to the parcel as “parcel 57.” The defendants assert that the Revenue Department’s records indicate that the Hornsbys had paid the property taxes on the parcel from 1984 to 1999. The defendants assert that the Revenue Department’s records indicate that Sherwood Development Company, the Horns-bys’ predecessor in title, paid the property taxes on the parcel from about 1958 to 1984. On February 15, 1999, the defendants purchased “lot 57” from the Horns-bys; on that date, the defendants obtained from the Hornsbys a quitclaim deed describing the parcel. Just a few days before that, Sherwood Development, through its former directors, had given a quitclaim deed describing “parcel 57” to the Horns-bys.

Gray asserts that the Revenue Department’s maps are misleading. According to Gray, the first map was prepared in November 1953; that map contains most of the lines from the original subdivision plat. The map was redrawn in 1959. No lines dividing the parcel are reflected on the Department’s 1959 map.

The trial court’s May 4, 2001, order is titled “Order on Motions for Summary Judgment.” The trial court’s order states, in pertinent part:

“This cause came to be heard in open court on January 22, 2001, on motions for summary judgment filed by both [Gray] and the defendants. Both [Gray] and the defendants claim to own a certain parcel of property which lies west of Big Oak Drive in the Kowaliga Bay Estates Subdivision in Elmore County, Alabama. [Gray] claims to own this property by virtue of her contention that it is a part of Lots 2, 3, and 4 of Block No. 5, Unit No. 2, and that she is part of
the chain of title evolving from the original developers of the subdivision. The defendants ... contend that they own this disputed property, referred to by the [Elmore County] Revenue Commissioner’s Office as “Parcel 57,” by virtue of the fact that they purchased the same from Tony G. Hornsby in February, 1999, combined with the fact that Horns-by’s predecessors in title have paid ad valorem taxes on the same since about 1958.
“In order to resolve this dispute, the court is required to determine the intent of the original developers of the subdivision in regard to the possible inclusion of land west of Big Oak Drive as part of Lots No. 2, 3, 4, and 5 of Block No. 5, Unit No. 2. The court finds that the intent of the original developers in this regard is ambiguous and, therefore, under the equitable powers afforded to this court, said disputed property is hereby divided as follows:
“(a) The portion of the disputed property west of Big Oak Drive which is directly in front of Lots 2 and 3 of Block No. 5, Unit No. 2, is awarded to ... Gray; and
“(b) The portion of the disputed property west of Big Oak Drive lying directly in front of Lots 4 and 5 of Block No. 5, Unit No. 2, is awarded to the defendants,....
“IT IS FURTHER ORDERED as follows:
“4. That the court finds that this order on motions for summary judgment shall be regarded as a final order subject to appeal by either or both parties. The court further finds, with the agreement of counsel for both parties, that a trial on this matter is unnecessary and would serve no useful purpose as same would not place before this court any testimony or documentary evidence which the court has not already considered in making this ruling.”

(Emphasis added.) The only testimony taken in this action was the depositions of the parties; the trial court did not conduct an evidentiary hearing.

A summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56, Ala. R. Civ. P.; Bussey v. John Deere Co., 531 So.2d 860 (Ala.1988). “When the mov-ant makes a prima facie showing that those two conditions are satisfied, the burden shifts to the nonmovant to present ‘substantial evidence’ creating a genuine issue of material fact.” Ex parte Alfa Mut. Gen. Ins. Co., 742 So.2d 182, 184 (Ala.1999). “[SJubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). In reviewing a summary judgment, this court must review the record in a light most favorable to the nonmoving party and must resolve all reasonable doubts concerning the existence of a genuine issue of material fact against the moving party. Fanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990).

On appeal, both parties assert that the trial court erred in entering its order dividing the parcel following a hearing on both parties’ summary-judgment motions. The parties assert that because the trial court’s order found the original subdivision developers’ intent to be ambiguous, a summary judgment was inappropriate. The determination of whether a deed is ambiguous is a question of law, and, thus, it is an issue to be determined by the trial court. Phillips v. Harris, 643 So.2d 974 (Ala.1994). However, if the trial court determines that the deed is ambiguous, the intent of the grantor becomes a factual issue, and the trial court may look to extrinsic evidence to determine the intent of the grantor. Ex parte Martin, 775 So.2d 202 (Ala.2000). When a genuine issue of material fact exists regarding the intent of the grantor in the deed, a summary judgment is not appropriate. African Methodist Episcopal Church v. St. Paul Methodist Church of Selmont, 295 Ala. 343, 329 So.2d 542 (1976); see also Gordon v. Nelson, 555 So.2d 125 (Ala.1989).

Both Gray and the defendants filed summary-judgment motions asserting that each owned the parcel in its entirety. Neither party asserted that the subdivision plat or the original deeds were ambiguous. Further, neither Gray nor the defendants purported to own only a portion of the parcel. The trial court determined that the subdivision plat was ambiguous. However, the trial court did not provide the parties an opportunity to present evidence regarding how the subdivision plat should have been construed, if in fact it was ambiguous. Such a determination was a question of fact, and, thus, a summary judgment was not appropriate. See African Methodist Episcopal Church, supra.

In addition, both parties assert that the trial court erred in dividing the parcel in a manner inconsistent with the parties’ assertions and unsupported by the evidence presented by the parties at the hearing on the parties’ summary-judgment motions. The Supreme Court of Alabama has held “that it is error for a trial court to establish a [property] line not supported by the evidence presented” and not asserted as the true property line by either landowner. Ramsey v. O’Neal, 812 So.2d 324, 328 (Ala.2001). We conclude that the trial court erred in dividing the parcel when the division was unsupported by the evidence presented to the trial court during the hearing on the summary-judgment motions, and the division was inconsistent with any contention of the parties. See Ramsey, supra.

We conclude that a summary judgment at this stage was inappropriate. Thus, we reverse the trial court’s May 4, 2001, judgment and remand the action for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . The record indicates that Rufus King purchased numerous lots in the Kowaliga Bay Estates subdivions from the original subdivision developers, including the lots now owned by the defendants. King sold a great number of those lots to Sherwood Development. Upon the dissolution of Sherwood Development, the Hornsbys purchased all the remaining lots Sherwood Development owned. The deed conveying the defendants’ lots from Sherwood Development to the Hornsbys describes the lots by block, unit, and lot numbers.


author: YATES, Presiding Judge.

text:
    Ex parte CITY OF HOMEWOOD. (In re City of Homewood v. Michael S. Reebals).
    2001130.
    Court of Civil Appeals of Alabama.
    May 17, 2002.

      Michael G. Kendrick and Victoria J. Franklin-Sisson of Gorham & Waldrep, P.C., Birmingham, for petitioner.
    C. Jackson Perkins, Birmingham, for respondent.
   YATES, Presiding Judge.

This is an employee-dismissal case. Michael S. Reebals was terminated from his job as a police officer with the City of Homewood for violating the Homewood Police Department Standards and Procedures, the Homewood Police Department General Orders, and the Jefferson County Personnel Board Rules and Regulations when making an arrest on July 1, 2000. The charges were related primarily to the use of excessive force in effectuating the arrest and conduct unbecoming a police officer.

Reebals appealed his termination to the Jefferson County Personnel Board; after a formal hearing, the board affirmed the City of Homewood’s determination. Ree-bals then appealed to the Jefferson Circuit Court. As required by law, a three-judge panel was appointed to review the board’s decision. Act. No. 248, § 22, 1945 Ala. Acts, as that section was amended by Act. No. 679, 1977 Ala. Acts, and by Act. No. 684, 1977 Ala. Acts, (establishing a county-wide civil-service system for Jefferson County). The three-judge panel did not address the evidence before the personnel board, because it determined that the proceedings before the board had been tainted by a conflict of interest. Accordingly, the three-judge panel ordered that Ree-bals be afforded a new hearing before the personnel board.

The City petitioned this court for certio-rari review of the three-judge panel’s decision. The issue before this court is whether the three-judge panel had jurisdiction to address Reebals’s conflict-of-interest claim.

Attorneys Michael Kendrick and Victoria Franklin-Sisson, of Gorham & Wal-drep, P.C., represented the City of Home-wood at the hearing before the personnel board. The personnel board is also represented by Gorham & Waldrep. However, no one from the firm notified Reebals of the conflict. Instead, before the three-judge panel was appointed, Michelle Obra-davic, an attorney with Gorham & Wal-drep, notified the court that there was a conflict of interest and that another law firm would represent the personnel board in the proceedings. In his appeal to the three-judge panel, Reebals argued that he was denied due process of law, because the law firm representing the City was also the law firm that represented the personnel board and, therefore, he argued, a conflict of interest arose.

Section 22, as amended, provides that the decision of the personnel board “shall be final subject to appeal by either party to the Circuit Court to review questions of law and the question of whether or not the decision or order of the Board is supported by the substantial and legal evidence.” (Emphasis added.)

In Ex parte Averyt, 487 So.2d 912 (Ala.1986), a firefighter appealed to the circuit court after his termination was upheld by the county personnel board, which had been established pursuant to an act creating a civil-service system for Mobile County. While that action was pending, he filed a collateral action, alleging certain constitutional violations arising out of the same operative facts, and then moved for the consolidation of the two cases. The trial court dismissed the collateral action. The firefighter appealed; this court affirmed the dismissal of the collateral action, holding that because the constitutional issues were not presented to and addressed by the personnel board, those issues could not be raised by a collateral action. Our supreme court held that this court incorrectly concluded that the firefighter’s failure to raise the constitutional issues before the personnel board barred appellate consideration. Although that court held that the circuit court’s consideration of the constitutional issue was barred, it was not barred for the firefighter’s failure to raise the issue, but because the personnel board did not have the authority to address constitutional issues. “In other words, only by invoking the general jurisdiction of the circuit court, by way of a collateral suit, could [the firefighterj’s constitutional challenges be raised and presented for determination.” 487 So.2d at 914.

In Ex parte Smith, 683 So.2d 431 (Ala.1996), a professor at a trade school, a state institution, sought review of his termination. Those proceedings were held before the trade school and the state-employee-review panel. In the proceedings before the review panel, the professor argued that he had been fired for exercising his right to free speech. The review panel did not address the constitutional claim, but affirmed the termination. The professor’s right of appeal was governed by the Alabama Administrative Procedure Act (“AAPA”), § 41-22-20 et seq., Ala.Code 1975 which provided for review in the circuit court. However, he did not appeal. Instead, the professor filed a collateral action, raising, among other things, his right to free speech. The supreme court held that although the review panel could not have addressed the constitutional issue, the circuit court, on appeal from the review panel, had jurisdiction to address the constitutional issue. Therefore, the professor’s failure to appeal from the review panel’s decision waived any right to relitigate that issue.

In Ex parte Boyette, 728 So.2d 644 (Ala.1998), a county employee filed a claim against the county, alleging age-based employment discrimination under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (“ADEA”). This court affirmed the trial court’s summary judgment in favor of the county. The supreme court reversed, holding that the employee could pursue his ADEA action, which was collateral to the proceedings brought under § 22 of Act No. 248, as amended, pursuant to which his employment was terminated. A collateral action was the only avenue available by which the employee could present his ADEA claim, because the personnel board did not have the authority to decide the ADEA claim, even if the employee had raised it during his termination proceedings. The court discussed Ex parte Averyt, supra, and Ex parte Smith, supra, holding that those cases were not inconsistent, because § 41-22-20 of the AAPA, which was involved in Smith, gives the reviewing court broader jurisdiction than it usually has in appeals from an administrative decision, such as in Averyt. The court further held that § 22 of Act 248, as amended, does not grant the broad power of relief that § 41-22-20, gives and that, therefore, the circuit court reviewing the employee’s termination hearing would not have had the authority to address the ADEA claim.

Reebals cites Stallworth v. City of Evergreen, 680 So.2d 229 (Ala.1996), in support of his argument that a conflict of interest is a question of law that can be addressed by the panel. In Stallworth, a city employee sued the city and certain city officials, arguing that the termination of his employment was invalid. The trial court entered a judgment for the defendants. The supreme court reversed, holding that the due-process rights of the employee were violated by a pretermination hearing in which the city administrator and the mayor served as hearing officers in the case where each of them had testified as a witness. The court further held that the posttermination hearing held before the employee-review panel did not cure the earlier violation of the employee’s rights to an unbiased, impartial decision-maker. Stallworth is distinguishable from the present case, because the city employee had filed a declaratory-judgment action, a collateral action, in order to have his due-process claims reviewed.

Reebals also cites Zuck v. Alabama, 588 F.2d 436 (5th Cir.1979). In Zuck, the law firm that represented the defendant in his murder trial also represented, in an unrelated civil matter, the prosecutor who tried the defendant. The judge, prosecutor, and attorneys knew of the dual representation, but no one informed the defendant. The State argued that no conflict of interest existed, because the real party in interest was the people of the State of Alabama and the prosecutor’s only interest was in achieving justice, not in convicting the defendant. The court rejected that argument, holding that an actual conflict existed, and stating:

“Determining whether a particular attorney has yielded to the temptation a conflict presents requires a searching analysis of his performance at trial. A cold, dispassionate appellate transcript simply cannot provide an adequate basis for assessing such a performance, for subtle variations in demeanor and depth of cross-examination cannot be reflected in the pages of a transcript. For this reason, the mere existence of a temptation in the abstract is sufficient to preclude duality of representation.”

588 F.2d at 440.

Zuck is distinguishable from this case, however, because it involved a habeas corpus petition alleging a conflict of interest filed in a federal court after the defendant had exhausted his state appellate rights. In the present case, the three-judge panel did not have the jurisdiction pursuant to § 22 to address Reebals’s conflict-of-interest claim based on Ex parte Boyette.

Based on the foregoing, the judgment of the three-judge panel is reversed and the. case is remanded for the three-judge panel to address whether there was substantial and legal evidence to support Reebals’s termination. In order for Ree-bals to raise his conflict-of-interest claim, he must file a collateral action in accordance with Ex parte Boyette.

REVERSED AND REMANDED WITH INSTRUCTIONS.

CRAWLEY, THOMPSON, and PITTMAN, JJ., concur.

      . The Legislature apparently amended § 22 of Act No. 248 twice during the 1977 Regular Session. Act No. 679 amended only § 22; Act No. 684 amended several sections of Act No. 248, including § 22. The provisions of § 22 at issue in this appeal are exactly the same.