author: STUART, Justice. SEE, Justice LYONS, Justice

text:
    STATE BOARD OF EDUCATION et al. v. Ronald WALDROP et al.
    1010120.
    Supreme Court of Alabama.
    July 26, 2002.

      Bill Pryor, atty. gen., and Michael R. White, deputy atty. gen. and gen. counsel, Alabama Department of Education; Roger L. Bates and E. Shane Black, deputy at-tys. gen., of Hand Arendall, L.L.C., Birmingham, for appellants Alabama State Board of Education and Dr. Ed Richardson, State Superintendent of Education (in his official capacity).
    James R. Seale of Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery, for appellants Local School Boards of Superintendents (in their official capacities).
    William T. Stephens and William F. Kelley, Alabama Teachers’ Retirement System, Montgomery; A. Lee Miller III, legal division, Department of Finance, for appellant Robert L. Childree, Comptroller of the State of Alabama (in his official capacity).
    Jerry Batts of Sherrill, Batts & Ship-man, L.L.C., Athens, for appellants Athens City School Board and its Superintendent (in his official capacity).
    Donald B. Sweeney, Jr., of Bradley, Ar-ant, Rose & White, L.L.P., Birmingham, for appellants Pell City School Board and its Superintendent (in his official capacity).
    Clatus Junkin and Charles E. Harrison of Junkin & Harrison, Fayette, for appel-lees.
   STUART, Justice.

The State Board of Education; Ed Richardson, in his official capacity as State Superintendent of Education; Robert L. Childree, in his official capacity as comptroller of the State of Alabama; the Teachers’ Retirement System of Alabama; and all city and county school districts in Alabama, including their superintendents, in their official capacities (those entities and individuals are hereinafter referred to as the “Board”), appeal from a September 6, 2001, order of the trial court awarding attorney fees to the plaintiff, Ronald Wal-drop, as representative of a class of Alabama schoolteachers. The trial court awarded Waldrop $287,500 in attorney fees based upon the “common-benefit” exception to the American rule governing the recovery of attorney fees. We reverse the trial court’s order requiring the Board to pay Waldrop’s attorney fees.

Background

Waldrop, a teacher in Fayette County, learned that in 1995 the Alabama Legislature had passed Act No. 95-314, Ala. Acts 1995, known as the Foundation Program Fund Act and codified at § 16-13-230 et seq., Ala.Code 1975 (amended in 1997) (the act before its amendment is hereinafter referred to as “the Foundation Act”). The Foundation Act set standards for the adoption by the State Board of Education of a “salary matrix” for public schoolteachers in the State based upon their “degree level, certification, and public education experience.” § 16-13-231.

However, the Foundation Act also permitted the State Board of Education to vest in the local boards the discretion to pay teachers less than 100% of the amount established in the salary matrix, even though the local boards received from the Legislature sufficient funds with which to pay the salaries at 100%. Under the Foundation Act, local boards were required to pay no less than 95% of the salary amounts specified in the “state salary matrix by cell”; they could withhold up to 5% from the teachers’ salaries. Because many local boards exercised this discretion and withheld the 5%, teachers possessing the same qualifications, degrees, and experience levels were being paid different salaries throughout the State.

In the summer of 1996, Waldrop contacted the Alabama Education Association (“AEA”), complaining that the Foundation Act conflicted with § 16-24-4, Ala.Code 1975, which provided then, and which still provides, that “no salary schedule shall operate to compensate teachers in less sums than the sums contained in a minimum salary schedule” adopted by the State Board of Education. Waldrop contended that Dr. Paul Hubbert, the executive director of the AEA, told Waldrop that nothing could or would be done about Waldrop’s concerns.

In September 1996, Waldrop filed an action in federal court, alleging that the discretion granted the local boards of education by the Foundation Act constituted an equal-protection violation pursuant to 42 U.S.C. § 1983. Waldrop and the defendants subsequently entered into a joint stipulation, agreeing to dismiss, without prejudice, the pending federal action.

On February 18, 1997, Waldrop filed an action in the state court, in which he asserted the same claims alleged in his federal action. He sought a judgment declaring a portion of the Foundation Act unconstitutional, backpay with interest, and an award of attorney fees and costs.

According to testimony before the trial court, shortly after Dr. Hubbert’s meeting with Waldrop, the AEA proposed legislation that would modify the Foundation Act to eliminate that portion of the Foundation Act that granted a local board discretion to pay its teachers less than the State-mandated salary. This legislation was introduced in the Legislature on February 4, 1997, two weeks before Waldrop filed his state-court action. The legislation was approved by the Governor on April 29, 1997, see Act No. 97-238, Ala. Acts 1997 (codified at § 16-13-231.1, Ala.Code 1975), after Waldrop had initiated his state-court action but before anything of substance had occurred in the action.

On October 19, 1998, more than one and one-half years after the amendment to the Foundation Act became law, the trial court entered a summary judgment in Waldrop’s state-court action, declaring unconstitutional that portion of the Foundation Act that granted local boards the discretion to pay teachers an amount less than the State-mandated salary. The trial court then set a hearing to address damages for the plaintiff class and to address all pending motions. This hearing was held on January 8, 2001.

On February 6, 2001, the trial court issued a “Final Order”; that order stated that it resulted from a “final hearing on all pending matters.” In that order, the trial court reaffirmed its holding as to the unconstitutionality of the Foundation Act and calculated damages for the plaintiff class at $91,508,074. The trial court, however, held that it was precluded from awarding the damages of $91,508,074, because the Board was protected by sovereign immunity from an award that would impact the State treasury. The trial court’s order also indicated that “all costs are taxed to Defendants.” The trial court’s order was silent on Waldrop’s request for an attorney-fee award.

Waldrop filed a Rule 59, Ala. R. Civ. P., motion, to alter, amend, or vacate the judgment; in his motion, Waldrop requested that the trial court reconsider its refusal to award damages to the plaintiff class. Waldrop’s motion did not request the trial court to reconsider his claim for attorney fees. The trial court denied Waldrop’s Rule 59 motion by an order entered on March 14, 2001.

On April 26, 2001, Waldrop filed a notice of appeal, challenging the trial court’s finding that sovereign immunity barred the award of damages against the Board. The Board cross-appealed and filed a motion to dismiss, on the basis that Waldrop’s appeal was untimely. Waldrop subsequently withdrew his notice of appeal, asserting that because the trial court had not disposed of his pending request for attorney fees, the February 6, 2001, order was not a final order and therefore was not appeal-able.

On June 21, 2001, Waldrop moved the trial court for a hearing on his attorney-fee request. The trial court granted this motion. Waldrop’s request for attorney fees was argued before the trial court on August 13, 2001; no ore tenus evidence was presented at this hearing.

On September 6, 2001, the trial court entered an order awarding Waldrop and members of the plaintiff class attorney fees. The trial court concluded that Wal-drop’s action had prompted the Legislature to amend the Foundation Act and that the action had benefited the general public and rendered a public service.

The trial court, using the lodestar method to calculate the fee, awarded attorney fees to Waldrop’s counsel in the amount of $287,500 and expenses in the amount of $13,303. The court’s award was based upon arguments made before the court and time sheets either submitted to the trial court or discussed with the trial court during the hearing on the attorney-fee award. Waldrop’s two attorneys stated that they had spent a combined 667.6 hours on this litigation (which has been pending since 1996) and that their regular hourly rates were $200 and $150, respectively. Using these figures, the trial court calculated an attorney fee of $115,000 and applied a multiplier of 2.5 to this figure.

The Board appeals, asserting that the trial court’s award of attorney fees is improper because, it argues, (1) no common benefit resulted from Waldrop’s action; (2) if any common benefit did result, the benefit occurred upon the Governor’s signing into law the amendment to the Foundation Act, and the fees awarded to Waldrop’s counsel were generated after that time; (3) 30 days after the entry of the February 6, 2001, order, the trial court lost subject-matter jurisdiction over the issue of attorney fees; (4) the doctrine of sovereign immunity bars an award of attorney fees against the Board in this case; and (5) Waldrop failed to carry his burden of proof in establishing his claim for attorney fees.

Standard of Review Applicable to a Trial Court’s Attorney-Fee Award

This Court has previously recognized that “[t]he determination of whether an attorney fee is reasonable is within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion.” Ex parte Edwards, 601 So.2d 82, 85 (Ala.1992), citing Varner v. Century Fin. Co., 738 F.2d 1143 (11th Cir.1984). See also Knox Kershaw, Inc. v. Kershaw, 598 So.2d 1372 (Ala.1992); Lanier v. Moore-Handley, Inc., 575 So.2d 83 (Ala.1991).

However, the Board argues that a de novo review is appropriate in this case. The Board relies upon Ex parte Horn, 718 So.2d 694, 705 (Ala.1998) (addressing an attorney-fee award by the trial court), in which this Court stated:

“[Wjhere a trial court does not receive evidence ore tenus, but instead makes its judgment based on the pleadings, exhibits, and briefs, the ore tenus standard’s presumption of correctness does not apply to the trial court’s factual findings and it is the duty of the appellate court to judge the evidence de novo."

As in Ex parte Horn, the trial court in this case did not receive ore tenus evidence regarding Waldrop’s request for an award of attorney fees. Thus, we review de novo the trial court’s award of attorney fees, and the trial court’s findings of fact on that issue carry no presumption of correctness.

Background of the “Common-Benefit” Exception to the American Rule

In Ex parte Horn, this Court stated:

“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. 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. These have been termed the ‘common fund’ and ‘common benefit’ exceptions to the American rule.”

718 So.2d at 702 (citations omitted). See also Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 257-59, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975) (recognizing common-law exceptions, including the common-benefit exception, to the American rule); Boeing Co. v. Van Gemert, 444 U.S. 472, 478, 100 S.Ct. 745, 62 L.Ed.2d 676 (1980) (recognizing that the common-fund exception “rests on the perception that persons who obtain the benefit of a lawsuit without contributing to its cost are unjustly enriched at the successful litigant’s expense”).

Under the common-benefit exception, a court may award attorney fees “ ‘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.’ ” Campbell v. General Motors Corp., 19 F.Supp.2d 1260, 1269 (N.D.Ala.1998), quoting Ex parte Horn, 718 So.2d at 702. In Campbell, the United States District Court for the Northern District of Alabama stated:

“The key difference [between the common-fund exception and the common-benefit exception] is that [for the common-benefit exception to apply] no common fund need be created. In fact, fees can be awarded where the benefit bestowed is non-pecuniary, see Bell v. Birmingham News Co., 576 So.2d 669, 670 (Ala.Civ.App.1991); Barton v. Drummond Co., 636 F.2d 978 (5th Cir. Unit B 1981), and the Alabama Supreme Court has awarded fees in several cases where there was no monetary recovery at all. See, e.g., Brown v. State, 565 So.2d 585, 591-92 (Ala.1990). Fees are typically assessed directly against the defendant. While the precise contours of common benefit recovery are far from clear, plaintiffs have sought relief which may benefit the public at large, and so might be entitled to a payment of the fees by the defendants based on the common benefit theory.”

Campbell, 19 F.Supp.2d at 1269-70 (some citations omitted). In a footnote to this text, the Campbell Court recognized that

“[generally, federal courts have carefully hemmed in the common benefit doctrine, applying it only where the fees, though paid for by the defendant, are somehow distributed over those benefit-ted by the plaintiffs’ actions.... While the Alabama courts have so far applied the doctrine principally against government entities, for which the same principle would apply, see, e.g., Horn, supra; Brown, supra; Bell, supra, the court has never said so explicitly.”

Campbell, 19 F.Supp.2d at 1270.

In Ex parte Horn, supra, neighborhood residents sued the City of Birmingham; the action ended with the entry of a consent judgment. Under that consent judgment, the City of Birmingham agreed to require sanitary-waste collectors to obtain approval from the city council before they constructed garbage transfer stations near residential neighborhoods. The trial court awarded attorney fees to the plaintiffs’ attorney, and the City of Birmingham appealed. The Court of Civil Appeals reversed.

However, on certiorari review, this Court found that the residents’ lawsuit had resulted in substantial relief to the entire City of Birmingham by ending an improper practice. This Court reversed the judgment of the Court of Civil Appeals and concluded that the residents were entitled to recover attorney fees. See also Brown v. State, 565 So.2d 585, 591-92 (Ala.1990) (in an action against the State of Alabama and the City of Montgomery arising out of improperly verified traffic tickets, this Court awarded attorney fees to plaintiffs’ counsel because the action resulted in a significant contribution to the integrity of the system of jurisprudence and because the lawsuit ended an improper practice; “The fact that this litigation ... has not produced a monetary recovery does not preclude an award of attorney fees.”). See also Wyatt v. Stickney, 344 F.Supp. 387 (M.D.Ala.1972) (plaintiffs in a class action against the State Mental Health Board alleging unconstitutional treatment at a school for the mentally ill were awarded attorney fees under the common-benefit exception; recognizing that bringing an end to unconstitutional policies and procedures at the school benefited the public good and that the most logical way to spread the burden of the litigation would be to grant the attorney fees), aff'd in pertinent part, and remanded, and decision reserved in part, Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir.1974); NAACP v. Allen, 340 F.Supp. 703, 708-09 (M.DAla.1972) (in an employment-discrimination case against the Alabama Department of Public Safety, the federal district court stated that “[w]hen plaintiffs, through the prosecution of a lawsuit, benefit the class they represent and effectuate a strong congressional policy, they are entitled to attorneys’ fees regardless of the defendants’ good or bad faith. Indeed, under such circumstances, the award loses much of its discretionary character and becomes a part of the effective remedy a court should fashion to encourage public-minded suits and to carry out congressional policy.” (citations omitted)).

Issues and Discussion

I. Did the trial court have jurisdiction to enter the attorney-fee award?

We begin by addressing the Board’s argument that the trial court lacked jurisdiction to enter the attorney-fee award. The Board points out that the trial court’s February 6, 2001, order was styled as a “Final Order” and stated that it was issued after a “final hearing on all pending matters.” Although Waldrop’s request for attorney fees was pending when the trial court issued the order, the order neither addressed Waldrop’s request for attorney fees nor reserved that issue for later consideration. The Board asserts that the trial court’s final order, through its silence, implicitly denied Waldrop’s request for attorney fees and thus disposed of all claims.

The Board further asserts that, in order to place that issue before the trial court again, Waldrop should have requested, pursuant to Rule 59, Ala. R. Civ. P., that the trial court alter, amend, or vacate the February 6, 2001, order as to the issue of attorney fees. Although Waldrop filed a Rule 59 motion, he did not raise the attorney-fee issue in that motion. Thus, the Board asserts, 30 days after the entry of the February 6, 2001, order, the trial court lost jurisdiction to reconsider its denial of attorney fees.

Waldrop responds by arguing that the February 6, 2001, order was not a “final order” because, he says, the order did not dispose of all claims (i.e., the trial court did not address his pending request for attorney fees) and the trial court did not specifically direct that a final judgment be entered on less than all claims, pursuant to Rule 54(b), Ala. R. Civ. P. Waldrop asserts that the trial court’s September 6, 2001, order is the final, and therefore appeal-able, order.

The trial court agreed with Waldrop. At the August 13, 2001, hearing on Wal-drop’s request for attorney fees, the trial judge insisted that his February 6, 2001, order was not a final order, and, when confronted with the fact that that order was captioned “Final Order,” he emphatically denied that he intended it to be a final order at that time. The trial judge stated: “My final order was going to be after we cleared up this issue of attorneys’ fees. I can tell you that right now. And if I did that [called the February 6, 2001, order a final order], that was inadvertently done; if I said final order. Why would I say final order and leave the attorneys’ fees out there hanging? ... I didn’t intend to do it. That was not my intent.”

We begin our analysis of the jurisdictional issue by recognizing that a decision on the merits disposing of all claims is a final decision from which an appeal must be timely taken, whether a request for attorney fees remains for adjudication. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 199-200, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988). Indeed, this Court has already concluded that the February 6, 2001, order entered in this case was a final decision on the merits. When the Board filed this appeal, Waldrop filed a cross-appeal. In that cross-appeal, Waldrop challenged the correctness of that portion of the trial court’s February 6, 2001, order refusing to award damages against the Board. The Board moved to dismiss Wal-drop’s cross-appeal, asserting that because Waldrop’s notice of cross-appeal was not filed within 42 days of the entry of the judgment he was appealing from, i.e., the judgment entered on February 6, 2001, Waldrop’s appeal from that decision was untimely.

We agreed, and on December 19, 2001, we dismissed Waldrop’s cross-appeal. We reached this conclusion even though the trial court had not entered a Rule 54(b) certification stating that the February 6, 2001, order was a final order. Thus, this Court has already concluded that the February 6, 2001, order was a final, appealable order.

This fact, however, does not completely resolve the issue whether a trial court— after it has issued a final order on the merits and awarded costs — may consider a request for attorney fees, where the attorney-fee issue was pending at the time the case was decided on the merits but was not expressly reserved for later consideration. Although the trial court labeled its February 6, 2001, order as a “Final Order,” the trial court subsequently announced that it did not intend to issue a final order until after the issue of attorney fees “was cleared up.” These comments by the trial judge could be interpreted as a nunc pro tunc amendment of its judgment; if that is the case, the trial court was not divested of jurisdiction when it issued its order awarding attorney fees.

Additionally, in light of the record before us, we will not interpret the trial court’s silence in its February 6, 2001, order as to Waldrop’s request for attorney fees as a denial of that request. However, we note that, under different circumstances, a trial court’s silence might be construed as a denial of a pending request. See, e.g., Lambert v. Lisanti Foods, Inc., 624 So.2d 625 (Ala.Civ.App.1993) (the trial court’s judgment, which was silent as to the plaintiffs claim alleging retaliatory discharge, was taken to be a denial or rejection of that claim).

Because we are inclined to reach the merits of the issue whether the trial court properly awarded attorney fees, we are unprepared to dispose of this case on the murky issue whether the trial court lacked jurisdiction to enter its September 6, 2001, order awarding attorney fees. We therefore address the issue whether Waldrop’s lawsuit resulted in a common benefit.

II. Did Waldrop’s lawsuit result in a common benefit?

The Board challenges the trial court’s award of attorney fees under the common-benefit exception, asserting that Waldrop’s lawsuit did not result in a common benefit to the general public. The trial court held that Waldrop’s efforts resulted in a common benefit to Waldrop and to the general public and that Waldrop’s lawsuit rendered a public service. However, the record does not support this conclusion.

First, Waldrop presented absolutely no evidence tending to establish any relationship between the filing of this action and the amendment of the Foundation Act. Waldrop argued that his contact with the AEA and with Dr. Hubbert, the filing of his federal lawsuit, and the subsequent filing of this state-court action all combined to bring about the amendment to the Foundation Act. However, the record before this Court contains no evidence of the filing or the disposition of Waldrop’s federal lawsuit, and we therefore do not consider that lawsuit.

Even if the record adequately documented Waldrop’s prior lawsuit and we accepted the argument that his filing of the federal lawsuit was the catalyst that prompted the AEA to review its position regarding the Foundation Act, this Court has previously rejected a similar argument in Battle v. City of Birmingham, 656 So.2d 344 (Ala.1995). In Battle, the Court affirmed the trial court’s refusal to award attorney fees under a common-benefit theory, explaining that the arguments of the party seeking the fee “applied] solely to her efforts” in another case and that she had “failed to show that her efforts in this case resulted in any benefit to the general public that would support an award of attorney fees.” 656 So.2d at 347 (first emphasis in original; second emphasis added). See also Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep’t of Health & Human Res., 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001) (rejecting an award of attorney fees under a “catalyst theory,” i.e., where the plaintiffs lawsuit brought about a voluntary change in the defendant’s conduct).

Second, it is significant to note that Representative Bill Fuller introduced the legislation proposing the amendment on February 4, 1997, the first day of the regular legislative session, while Waldrop’s state-court action was not filed until February 18, 1997, some two weeks later. Thus, even Waldrop’s state-court action lacks any causal relationship to the proposed amendment. At the hearing before the trial court on the attorney-fee issue, Wal-drop’s counsel essentially admitted that there was no evidence indicating such a causal relationship:

“Of course, Dr. Hubbert is going to say that it’s not. Of course, Bill Fuller is going to say that it’s not. You’re never going to get a direct admission in this important case as to what wheels are turning where to bring what benefits about. But we believe it’s almost res ipsa loquitur as far as the time sequence there.”

The deposition testimony of Dr. Hubbert and Representative Fuller was the only evidence submitted at the hearing on the attorney-fee issue. As Waldrop’s counsel admitted, both Dr. Hubbert and Representative Fuller denied that the filing of Wal-drop’s lawsuit or his contact with the AEA had had any impact upon the drafting of, the lobbying for, or the passage of the amendment to the Foundation Act.

Accordingly, the trial court’s finding that Waldrop’s lawsuit resulted in a common benefit is unsupported by any evidence; the trial court could only have speculated as to what prompted the Legislature to amend the Foundation Act. Although we agree that Waldrop’s complaints to the AEA may have highlighted the deficiencies in the Foundation Act, merely highlighting a deficiency in a statute does not, without evidence of a more direct influence, rise to the level of prompting a correction of that deficiency. We cannot allow speculation to satisfy a narrow exception to the American rule and to create an entitlement to attorney fees, especially where substantial, uncontrovert-ed evidence to the contrary has been presented.

Additionally, to justify an award of attorney fees under the common-benefit exception, the litigation must result in a benefit not only to the plaintiff, but also to the general public. See Boeing Co. v. Van Gemert, 444 U.S. at 478, 100 S.Ct. 745; Campbell v. General Motors Corp., 19 F.Supp.2d at 1269-70 (recognizing that the purpose underlying an award of attorney fees under the common-benefit exception is to spread the cost of the benefit over those benefited); see also Ex parte Horn, supra (spreading the cost of the benefit over the citizens of Birmingham because all citizens benefited from the consent judgment in favor of the plaintiff); Brown v. State, supra (spreading the cost of the benefit over state taxpayers because all taxpayers benefited from the judgment in favor of the plaintiff).

In this case, Waldrop and certain other public schoolteachers benefited from the amendment to the Foundation Act. However, Waldrop and those schoolteachers are not the ones being asked to pay for that benefit. The trial court’s award of attorney fees against the Board attempts to charge the costs associated with Wal-drop’s lawsuit to the State Board of Education and the local boards of education. Nothing suggests that the State Board and the local boards benefited from the amendment to the Foundation Act. Thus, the Board is not the proper group over which to spread the costs associated with Wal-drop’s litigation.

Finally, even if we attributed some tangential benefit to the Board as a result of the amendment to the Foundation Act, the Board would be required to pay Waldrop’s attorney fees with funds from its annual budget. That money is allocated to the Board for the purpose of educating children enrolled in Alabama’s public schools. Thus, any award of attorney fees against the Board-reduces the funds available for that purpose. We cannot conclude that Waldrop’s litigation benefited all children enrolled in Alabama’s public schools to the level required to justify an attorney-fee award under the common-benefit exception. The benefit, if any, inuring to the Board and the children enrolled in public schools as a result of Waldrop’s lawsuit is more than offset by the reduction in funds that would be available for public education if the Board were required to pay the attorney fees. We conclude that an award of attorney fees under the common-benefit exception is inappropriate in this case.

We do not hold that attorney fees may never be awarded against the State Board of Education or against the local boards under a common-benefit theory. We simply conclude that the benefit, if any, resulting from Waldrop’s lawsuit did not justify an award of attorney fees against the Board in this case.

Conclusion

We conclude that an award of attorney fees under the common-benefit theory is inappropriate in this case. We reverse the trial court’s order of September 6, 2001, and remand this case for the trial court to enter a judgment denying Waldrop’s request for attorney fees.

REVERSED AND REMANDED WITH INSTRUCTIONS.

MOORE, C.J., and HOUSTON, BROWN, and HARWOOD, JJ„ concur.

SEE and LYONS, JJ., concur specially.

WOODALL, J., concurs in the result.

SEE, Justice

(concurring specially).

Because I understand the holding of the majority to be that Waldrop has not shown that his lawsuit resulted in a common benefit to the general public, I concur.

LYONS, Justice

(concurring specially).

I concur in the majority opinion. I write specially to note my reservations concerning the consistency of this Court’s decision in Brown v. State, 565 So.2d 585 (Ala.1990), with Art. I, § 14, Alabama Constitution of 1901 (“That the State of Alabama shall never be made a defendant in any court of law or equity.”).

The Board contends that sovereign immunity precluded the award of an attorney fee against it in this case. However, in its brief to this Court, the Board, while attempting to support its immunity argument by showing that Waldrop’s claims sound in tort, correctly observed that the complaint asserted claims arising under the Civil Rights Act, 42 U.S.C. § 1981 et seq. Of course, 42 U.S.C. § 1988, legislation implementing the Fourteenth Amendment, permits the prevailing party to recover an attorney fee.

Under the Supremacy Clause of the United States Constitution (Art. VI), in tandem with the Fourteenth Amendment, the attorney fees permitted by 42 U.S.C. § 1988 are recoverable, notwithstanding a provision of a state constitution that might otherwise afford immunity to the party against whom the fees are sought. See Hensley v. Eckerhart, 461 U.S. 424, 446 n. 7, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (“Congress’s imposition of liability for attorney’s fees under § 1988 also represents a decision to abrogate the sovereign immunity of the States in order to accomplish the purposes of the Fourteenth Amendment. See Senate Report [No. 94-1011, 94th Cong., 2d Sess. 5 (1976)]; Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976); Maher v. Gagne, 448 U.S. 122, 128-129, 100 S.Ct. 2570, 2574-2575, 65 L.Ed.2d 653 (1980).”). See also Larkins v. Department of Mental Health & Mental Retardation, 806 So.2d 358, 363 (Ala.2001), noting that “the Fourteenth Amendment overrides the scheme of sovereignty of states as it existed at the time of the formation of the Union.”

The question whether the liability of the State for payment of an attorney fee as recognized in Brown v. State is properly confined to cases arising under statutes such as 42 U.S.C. § 1988 must await another day.

      . Although the record contains no documentation of this federal action, the parties refer to the federal lawsuit in their briefs filed with this Court.

      . In the order, the trial court stated that "all costs are taxed to Defendants.” The Board notes that the use of the term "costs,” without more, does not encompass attorney fees. Mass Appraisal Servs., Inc. v. Carmichael, 372 So.2d 850, 852 (Ala.1979).


source: Caselaw Access Project

author: PITTMAN, Judge.

license: Public Domain

text:
    Peter Patrick COONEY, Jr. v. Tina Whitt COONEY. Ex parte Peter Patrick Cooney, Jr. (Re Tina Whitt Cooney v. Peter Patrick Cooney, Jr.)
    2010042 and 2010222.
    Court of Civil Appeals of Alabama.
    June 28, 2002.
    Barbara C. Miller, Huntsville, for appellant/petitioner Peter Patrick Cooney, Jr.
    Bret M. Gray of Stephen B. Griffin & Associates, Hoover, for appellee/respon-dent Tina Whitt Cooney.
   PITTMAN, Judge.

This appeal and the petition for a writ of mandamus, both arising from a divorce action filed by Tina Whitt Cooney (“the wife”) against Peter Patrick Cooney, Jr., (“the husband”) have been consolidated for purposes of writing one opinion.

On December 1, 2000, the wife filed for divorce from the husband; the husband subsequently answered the complaint, reserving his right to file a counterclaim at a later date. On January 22, 2001, the husband and wife filed a joint stipulation for a dismissal, which the trial court granted. On February 20, 2001, the trial court’s case action summary notes that a “motion to reverse stipulation of dismissal of complaint” was filed, and on February 22, 2001, the trial court granted the motion, and the case was reinstated. The husband then filed a counterclaim on April 4, 2001, averring the parties were in fact not married because at the time of their purported marriage, the wife was still married to her former husband. The husband asked that the parties’ marriage be annulled, that he be given custody of their unborn child, and that certain of his personal property be returned to him.

On May 10, 2001, the wife filed a motion to dismiss the action and the counterclaim, or, in the alternative, for a judgment on the pleadings or for a summary judgment. On May 11, 2001, the trial court held a hearing on all outstanding motions. On May 25, 2001, the trial court granted the wife’s motion to dismiss. This dismissal is the subject of both the appeal and the petition for writ of mandamus filed by the husband.

The husband argues three issues on appeal; that the trial court erred by: (1) dismissing the case without hearing testimony; (2) entering a summary judgment without a hearing; and (3) dismissing the case when there were outstanding issues of fraud, child support, custody, and visitation.

A close review of the record reveals that the trial court granted only the wife’s motion to dismiss; it did not grant her motion for a summary judgment. Therefore, we do not address the issue whether the trial court erred by entering a summary judgment without a hearing.

The issue before us is whether the trial court erred in granting the wife’s motion to dismiss. The wife alleged the trial court had no subject-matter jurisdiction over her original complaint for divorce or over the husband’s counterclaim. This is partially true.

In her motion to dismiss, the wife averred that she had married the husband on August 12, 2000, in the State of Tennessee, and that the Etowah Circuit Court did not enter a judgment divorcing her from her former husband until December 20, 2000. A copy of that final judgment of divorce was included with the motion to dismiss.

We have long held that where a prior marriage has not been dissolved at the time one of the spouses of that marriage subsequently marries another, the second marriage is void. See Blackwood v. Kilpatrick, 52 Ala.App. 505, 294 So.2d 753 (Civ.App.1974); Lindsey v. Lindsey, 48 Ala.App. 495, 266 So.2d 298 (Civ.App.1972). “A woman can have but one lawful husband living, and so long as he is alive and the marriage bond remains in full force, all her subsequent marriages, whether meretricious or founded in mistake and at the time supposed to be lawful, are utterly null and void.” Dorsey v. Dorsey, 259 Ala. 220, 224, 66 So.2d 135, 139 (1953). The “second” or “subsequent” marriage here — the one that was the subject of the purported divorce proceeding— was void. In Callaway v. Callaway, 739 So.2d 1134 (Ala.Civ.App.1999), we held that the trial court erred by entering a judgment of divorce as to a void marriage. The granting of the wife’s motion to dismiss as to her complaint for divorce was not error by the trial court.

The wife also asked that the trial court dismiss the husband’s counterclaim. As previously stated, the husband had filed a counterclaim to the original complaint for divorce asking the trial court to annul the parties’ marriage, seeking custody of their unborn child, and seeking the return of certain items of personal property. As stated above, annulment is the proper remedy for the dissolution of a void marriage. We have previously held that a trial court may properly annul a marriage on the ground that the marriage was void from the outset. Broadus v. Broadus, 361 So.2d 582 (Ala.Civ.App.1978). As noted above, we held in Callaway that a trial court, under virtually identical circumstances as presented here, erred by entering a judgment of divorce rather than one annulling the marriage. We therefore reverse the trial court’s judgment granting the wife’s motion to dismiss as to the husband’s counterclaim, and we remand the case for the court to enter an order consistent with this opinion.

The husband filed a petition for a writ of mandamus, raising the same issues as those raised in the direct appeal. Because those issues have been disposed of in this appeal, we dismiss the petition. See, generally, Deputy Sheriffs’ Ass’n v. Tuscaloosa Cty., 610 So.2d 1159 (Ala.1992).

2010042 — AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

2010222 — PETITION DISMISSED.

THOMPSON and MURDOCK, JJ., concur.

YATES, P.J., concurs in the result.

CRAWLEY, J., dissents.


author: THOMPSON, Judge. PITTMAN, Judge,

text:
    GARRETT & ASSOCIATES REAL ESTATE, INC. v. COLONIAL REALTY LIMITED PARTNERSHIP.
    2010296.
    Court of Civil Appeals of Alabama.
    June 28, 2002.

      Aubrey 0. Lammons of Lammons, Bell & Rhodes, Huntsville, for appellant.
    Eddie Leitman and Christopher R. Hood of Leitman, Siegel & Payne, P.C., Birmingham, for appellee.
   THOMPSON, Judge.

Garrett & Associates Real Estate, Inc. (hereinafter “Garrett”), sued Colonial Realty Limited Partnership (hereinafter “Colonial”) alleging breach of a contract and seeking $10,440 in damages. Both parties moved for a summary judgment. On November 20, 2001, the trial court entered a summary judgment in favor of Colonial. Garrett appealed.

A motion for a summary judgment is properly granted where no genuine issue of material fact exists 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). After the moving party makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmoving party to demonstrate the existence of a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794 (Ala.1989). To carry that burden, the nonmoving party is required to present substantial evidence, i.e., “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 view the evidence 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 in favor of the nonmovant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990).

The pertinent facts are undisputed. In mid-April 1999, Garrett, on behalf of its client, Southern Bank of Commerce (hereinafter “SBC”), submitted an offer to Colonial to purchase certain real property owned by Colonial. Because of certain restrictions in Colonial’s charter, it could sell only a limited number of properties each year. Therefore, Colonial proposed that SBC consider leasing the property for a short period, which would allow Colonial and SBC additional time to execute a sale of the property.

On February 24, 2000, Colonial and SBC entered into a lease contract (hereinafter “the lease”), whereby Colonial agreed to lease the property to SBC for $26,100 per year, for a period of 10 years, payable in 120 equal monthly installments. The lease did not provide a commission for Garrett. On March 3, 2000, Garrett sent Colonial a letter requesting that Colonial amend the lease to provide that Garrett receive a commission as proposed in the letter. Karen Taylor, a representative of Colonial, signed a letter on March 3, 2000, to indicate Colonial’s acceptance of the proposed additional terms, which provided a commission to Garrett. The March 3, 2000, amendment to the lease provided that:

“(1) Article 23, Page 13 of the Ground Lease dated February 24, 2000, is amended to acknowledge that a lease and sales commission have [sic] been earned and is payable by [Colonial] under the following terms and conditions:
“(a) [Colonial] agrees to pay Garrett and Associates a leasing commission of 4% of the gross rent. Payment will be made on an annual basis, beginning with the first rental payment made by the Tenant, and payable yearly for the remaining term of the lease.
“(b) In the event the Tenant exercises its option to purchase the property in accordance with the terms of the Option to Purchase, [Colonial] agrees to pay Garrett & Associates and Colonial Properties a commission of 8% [handwritten in ‘to be split 50/50’] of the purchase price as set out in the Ground Lease. Any lease commission paid to Garrett & Associates in excess of the term of the lease due to an early sale, will be credited to [Colonial] against the above-stated sales commission.”

At some point after Colonial and SBC entered into the lease, SBC discovered that “there were errors in the plat and site plans with respect to the property to be leased.” Because of those errors, SBC no longer wished to lease the property. SBC entered into negotiations with Colonial with regard to terminating the lease. On August 4, 2000, Colonial and SBC entered into an agreement whereby Colonial agreed to terminate the lease agreement in exchange for SBC’s payment of $35,000. It is undisputed that SBC never made any of the payments due under the lease. It is also undisputed that Colonial did not make any commission payment to Garrett.

In its complaint, Garrett claimed that it was due a commission of 4% of the total lease payments due for the entire 10-year term of the lease, or $10,440. Colonial maintained, and the trial court apparently agreed, that because Colonial did not receive any payments from SBC under the lease, Colonial did not, under the terms of the March 3, 2000, amendment to the lease, owe Garrett a commission.

On appeal, Garrett argues that the trial court erred in entering a summary judgment in favor of Colonial. In support of its argument, Garrett cites the language in the March 3, 2000, amendment to the lease agreement that provides that “a lease and sales commission have [sic] been earned and is payable by [Colonial] under the following terms and conditions.... ” (Emphasis added.) Colonial contends that that provision governs the timing of the commission payment, but not Garrett’s right to a commission payment. ’ Colonial maintains that Garrett was not entitled to a commission under the March 3, 2000, amendment to the lease because SBC had not paid Colonial pursuant to the lease agreement.

We recognize that “ ‘[t]he mere fact that adverse parties contend for different constructions does not in itself force the conclusion that the disputed language is ambiguous.’ ” Ex parte Awtrey Realty Co., 827 So.2d 104 (Ala.2001) (quoting Antram v. Stuyvesant Life Ins. Co., 291 Ala. 716, 720, 287 So.2d 837, 840 (1973)). However, in this case, we must conclude that more than one reasonable meaning emerges from the provisions of the contract. See Britt v. Gonzalez, 710 So.2d 928 (Ala.Civ.App.1998). The parties’ intent and their exact agreement cannot be ascertained from the language of the lease and in the March 3, 2000, amendment to the lease. Therefore, we conclude that summary judgment was not appropriate under the facts of this case and that those issues should be determined by the trier of fact. See Britt v. Gonzalez, supra; Sang v. Jefferson County Bd. of Educ., 652 So.2d 310 (Ala.Civ.App.1994). We reverse the summary judgment in favor of Colonial .and remand the case.

REVERSED AND REMANDED.

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

CRAWLEY and PITTMAN, JJ., dissent.

PITTMAN, Judge,

dissenting.

I find no ambiguity in the amendment to the lease in question in this case. Therefore, I must respectfully dissent from the majority opinion.

When the trial court ruled on the motions for summary judgment filed by both parties, the initial question presented was whether the terms of the amendment to the lease, as outlined in the majority opinion, were ambiguous. The majority cites the case of Ex parte Awtrey Realty Co., 827 So.2d 104 (Ala.2001), which states that “ ‘[t]he mere fact that adverse parties contend for different constructions does not in itself force the conclusion that the disputed language is ambiguous,’ ” quoting Antram v. Stuyvesant Life Ins. Co., 291 Ala. 716, 720, 287 So.2d 837, 840 (1973). I agree. The next paragraph of Awtrey states:

“ The words of a contract are to be given their ordinary meaning, and the intention of the parties is to be derived from the provisions of the contract.’ Ambiguities will not be inserted into contracts by strained and twisted meaning where no such ambiguities exist.”

827 So.2d at 107 (citations omitted). I conclude the majority has done what Aw-trey cautions against; although the two parties argue opposing constructions of the language in question, the majority reasons that this disagreement renders the language to be ambiguous.

The language in the lease amendment in question states that “a lease and sales commission have [sic] been earned and is payable by [Colonial] under the following terms and conditions....” I cannot see but one reasonable interpretation of this language. If the terms and conditions are met, the lease and/or sale commission is earned and payable on those terms. If the terms and conditions are not met, then the lease and/or sale commission is not earned and payable. I believe any other construction would “strain and twist” the meaning of an otherwise clear term of the lease amendment.

For these reasons, I would affirm the trial court’s summary judgment in favor of Colonial Realty Limited Partnership.

CRAWLEY, J., concurs.

      . $26,100 annual gross rent multiplied by the 4% commission rate equals $1,044 per year, times 10 years equals $10,440.


author: MURDOCK, Judge.

text:
    Betty Ruth JOHNSON v. Terry Wayne JOHNSON. Terry Wayne Johnson v. Betty Ruth Johnson.
    2001027.
    Court of Civil Appeals of Alabama.
    June 28, 2002.

      Trudie Anne Phillips, Anniston, for appellant/cross-appellee Betty Ruth Johnson.
    Randall W. Nichols of Massey, Stotser & Nichols, P.C., Birmingham, for appel-lee/cross-appellant Terry Wayne Johnson.
   MURDOCK, Judge.

Betty Ruth Johnson (“the wife”) and Terry Wayne Johnson (“the husband”) were divorced by a judgment entered by the Calhoun Circuit Court on May 1, 1997. The judgment granted the divorce based on incompatibility of temperament, awarded primary custody of the parties’ two children to the wife, and divided the marital property and debts. Among other things, the divorce judgment ordered the husband to pay child support in the amount of $541 per month ($270.50 per child) in accordance with Rule 32, Ala. R. Jud. Admin.; ordered the wife to maintain health insurance coverage for the parties’ minor children; and required each party to pay one-half of the minor children’s medical expenses that were not covered by insurance. The judgment also reserved consideration of postminority support and periodic alimony. At the time of the divorce, the parties’ minor children (twin sons) were 17 years of age.

On June 11, 1998, the wife filed a rule nisi petition to enforce, among other things, payment of child-support arrearage and medical-expense arrearage, which she claimed together totaled $3,611.07 plus interest; the wife also sought payment of her attorney’s fees, postminority support, and periodic alimony. At the time the petition was filed, the children had recently graduated from high school, had expressed the desire to attend college, and had applied to different colleges.

The husband filed a counterclaim requesting, among other things, that he be awarded attorney fees if he prevailed on the issue of contempt. At the time the husband filed the counterclaim, he had paid most of the past-due child support, but had not paid his portion of the medical expenses.

The case was tried ore tenus on February 18, 1999, April 21, 1999, and April 23, 1999. The record reveals that at the time of the proceedings on February 18, the husband had paid the principal amount of all past-due child-support payments, but still owed approximately $200 in interest on those payments. The parties reached an agreement as to the amount of the husband’s unpaid medical expenses; the agreed-upon amount was $364.81.

The record also indicates that the husband had voluntarily left a job earning $550 per week and had moved to Roberts-dale in January 1997. The divorce judgment had imputed income to the husband in the amount of $25,000 per year. The husband did not have a job when he moved to Robertsdale, and he worked only sporadically for a period after his move. Because the husband did not receive a paycheck on a consistent basis, he failed to make all or part of some of the child-support payments and failed to pay his portion of the children’s medical bills.

At a docket call on April 7, 1999, the wife advised the court that she was no longer seeking postminority support. The children were not attending college because, according to the wife, they could not afford the tuition costs. Accordingly, the trial court subsequently dismissed the wife’s claim for postminority support. The husband subsequently amended his counterclaim by requesting attorney fees if he prevailed on his defense of the wife’s periodic-alimony claim and because of the wife’s abandonment of her request for postminority support.

On February 28, 2001, the trial court entered a judgment that, among other things, found that the issue of postminority support was moot and that the husband had been in contempt for failure to pay child support and his portion of the medical bills, but that he had purged himself of that contempt. The judgment awarded the wife what it referred to as “alimony in gross” in the amount of $5,200. The trial court also awarded the husband $1,600 in attorney fees. The trial court offset the attorney-fee award against the award of alimony and entered a judgment against the husband in the net amount of $8,600, payable at the rate of $300 per month.

The wife filed a motion to alter, amend, or vacate the trial court’s judgment; her motion alleged, among other things, that the husband had not paid his portion of the medical expenses and therefore had not purged himself of contempt, and that the trial court should have awarded the wife periodic alimony instead of alimony in gross. The trial court entered an amended judgment that, among other things, included the amount of the husband’s unpaid medical expenses and the interest due on previous child-support payments; deleted the statement that the husband had purged himself of contempt; and corrected the designation of the alimony from “alimony in gross” to “periodic alimony.” The wife appeals and the husband cross-appeals.

On appeal, the wife contends that the trial court erred in awarding the wife a lump-sum periodic-alimony award. The husband contends that the trial court erred in awarding the wife any periodic alimony, because, he says, the wife failed to show a material change of circumstances.

“In reviewing a judgment of the trial court in a divorce case, where the trial court has made findings of fact based on oral testimony, we are governed by the ore tenus rule.” Fowler v. Fowler, 773 So.2d 491, 493 (Ala.Civ.App.2000). Further, the issue of alimony is within the discretion of the trial court, and its decision on that issue will not be overturned on appeal unless it is “plainly and palpably wrong” or unless the trial court has abused its discretion. Id.

In Crenshaw v. Crenshaw, 816 So.2d 1046 (Ala.Civ.App.2001), this court held that a postdivorce request for an award of alimony, when the issue had been “reserved” by the trial court, must be based upon a “material change of circumstances.” 816 So.2d at 1048. In the present case, we cannot say based on the evidence of record that the trial court was plainly and palpably wrong in making an alimony award of only $5,200.

Evidence was introduced at trial to the effect that the wife’s income was approximately $9 per hour and that this income had increased slightly from the time of the divorce judgment. There also was evidence that the husband’s income was approximately $11 per hour (approximately $1,900 per month), and that this was slightly less than his income at the time of the divorce judgment.

The evidence regarding each of the parties’ expenses was conflicting. The wife testified that as a result of the children’s reaching the age of majority she no longer receives child support and she has lost the benefit of the dependent tax exemption. She testified that her monthly expenses were about the same as they were at the time of the divorce. There was evidence, however, indicating that the wife’s monthly expenses were $1,800. Since the parties divorced, the wife has borrowed $800 from a bank; approximately $2,000 from an older son (who was 29 years old at the time of the trial); and approximately $1,000 from a friend. The wife had purchased a house in December 1998 for $15,000; she financed the entire purchase price, and the monthly mortgage payment was $188. She also had borrowed $4,000 to make repairs on the house and pays $100 monthly toward that debt; she also owed Lowe’s Home Centers, a building supply store, $500. Although the wife was paying $402 in monthly rent at the time of the divorce, she now had utility expenses and property taxes. The wife also needs to have her eyes examined and to have some dental work done, but she testified that she could not afford to have either. She also had incurred automobile repair expenses in the amount of $1,769 since the divorce.

Evidence introduced at - trial indicated that the husband’s monthly expenses were approximately $1,400. The husband also testified, however, that the combined monthly expenses for him and his current wife are $1,740.

The wife contends that the alimony award amounts to an impermissible award of alimony in gross. We disagree. In Burnett v. Burnett, 339 So.2d 68, 69 (Ala.Civ.App.1976), this court stated:

“For a detailed and erudite discussion of the characteristics of alimony, both periodic and in gross, see Hager v. Hager, 293 Ala. 47, 299 So.2d 743 [1974], Suffice it to say that throughout Hager, supra, the following definition is found:
“ ‘ “Alimony in gross” is the present value of the wife’s inchoate marital rights — dower, homestead, quarantine, and distributive share. It is payable out of the husband’s present estate as it exists at the time of the divorce.’ (Emphasis added.) (293 Ala. at 55, 299 So.2d at 750). See also Borton v. Borton, 230 Ala. 630, 162 So. 529 [ (1935) ].”

In Burnett, the court affirmed the trial court’s award of a lump-sum alimony award in the amount of $10,000 where the husband had failed to make the monthly alimony payments under the divorce judgment. In that case, the trial court had characterized the lump-sum alimony award as “alimony in gross.” On appeal, this court concluded that the trial court had changed the method of payment and not the character of the alimony:

“It is clear that in this instance an award of alimony in gross ... could not be made. The appellee at the time of the decree in question, some one year after the original decree of divorce, had no inchoate marital rights upon which an award of alimony in gross could be founded, ás they have been extinguished by the decree of divorce.
“However, in this instance, viewing -the trial court’s decree with the attendant presumption of correctness, we do not find that the trial court made an award of alimony in gross as discussed in Hager, supra. We are aware that the trial court in his decree stated that the award was one of ‘alimony in gross.’ However, we find the award not to be an award of alimony in gross as discussed above, but rather to be a modification of periodic alimony. Put another way, the trial court simply changed the method of payment of the periodic alimony from installments to a lump sum, to wit, $10,000. Clearly, the trial court may modify a decree of alimony payable in monthly installments. Additionally, we note that, as mentioned above, at the time of the original decree of divorce a division of property was made. Clearly, the trial court would not, over one year after the decree of divorce, attempt to make a further division of property or award alimony in gross.”

Burnett, 339 So.2d at 69-70 (citations omitted).

In Jeffcoat v. Jeffcoat, 628 So.2d 741, 743 (Ala.Civ.App.1993), overruled on other grounds, Crenshaw v. Crenshaw, 816 So.2d 1046 (Ala.Civ.App.2001), this court affirmed the trial court’s award of a lump-sum alimony award in the amount of $4,000 where the divorce judgment had reserved periodic alimony for the wife. In that case, the trial court had characterized the lump-sum alimony award as “retroactive” alimony. On appeal, the court concluded that the trial court had actually awarded the wife periodic “rehabilitative” alimony:

“[A trial court] may order rehabilitative alimony for the support of the wife. Doyle [v. Doyle, 579 So.2d 651 (Ala.Civ.App.1991)]. Further, the existence of a termination date is within the trial court’s power. Barran v. Barran, 431 So.2d 1278 (Ala.Civ.App.1983). Thus, Doyle and its progeny have established a sub-class of periodic alimony. The requirements for alimony in gross are not met here. Although the amount may be ascertained and there exists a termination date, the award is clearly in the nature of a support award, not a vested right. Trammell v. Trammell, 523 So.2d 437 (Ala.Civ.App.1988). The purpose of periodic alimony is for the financial support of the recipient spouse. White v. White, 589 So.2d 740 (Ala.Civ.App.1991).
“Regardless of the trial court’s use of the term ‘retroactive,’ it is apparent that the trial court’s award of alimony in this ease was in the nature of support during this period of time. Rehabilitative alimony is appropriate when supported by the evidence. Sammons v. Sammons, 598 So.2d 941 (Ala.Civ.App.1992). Although the terminology was incorrect, it is clear from the record that the trial court’s intention was to order the husband to financially support the wife, allowing her time to re-establish a self-supporting status. The law is well settled that a trial court’s correct decision will not be disturbed, even if the court gives the wrong reason. Boykin v. Magnolia Bay, Inc., 570 So.2d 639 (Ala.1990).”

Jeffcoat, 628 So.2d at 743.

In this case, viewing the trial court’s judgment with a presumption of correctness, we conclude that the trial court did not make an award of alimony in gross. The parties had been divorced for approximately four years when the trial court awarded the wife the alimony, payable over a period of 12 months. The divorce judgment contained a property division; clearly, the trial court could not have attempted to enter a further division of property four years after the divorce judgment had been entered. We conclude that the alimony award in this case was in the nature of a support award, recognizing the undue financial hardship the wife had endured as a result of the husband’s failure to pay child support and further allowing the wife time to reestablish a self-supporting status.

The husband relies on Crenshaw, supra, and contends that the wife failed to prove a material change in circumstances. We conclude that in this case, the wife established a material change in circumstances sufficient to support the alimony award. The evidence supports a finding that the husband’s failure to comply with the divorce judgment placed an undue financial burden upon the wife. Further, with the husband’s child-support obligation having ended, he now has the ability to pay the alimony awarded by the trial court.

The wife also contends that the trial court abused its discretion in awarding the husband $1,600 in attorney fees and in failing to award the wife any attorney fees. The husband argues that the trial court’s award of attorney fees to him was proper.

In Bertram v. Doss, 709 So.2d 1274, 1278 (Ala.Civ.App.1998), the court stated:

“The law regarding an award of an attorney fee is well settled:
“‘The award of attorney’s fees in a modification case is within the sound discretion of the trial court, which will not be reversed unless an abuse of discretion is shown.... Factors to be considered by the trial court in a modification case in making an attorney’s fee award include earning capacity of parties, results of litigation, and financial circumstances of the parties.’ Murray v. Murray, 598 So.2d 921, 922-23 (Ala.Civ.App.1992) (citations omitted).”

In Bertram, the court reversed an award of a $200 attorney fee to the husband where the wife prevailed on her claim:

“After reviewing the record, we cannot fathom why the trial court ordered the mother to contribute toward the husband’s attorney fees, regardless of the modest amount. The mother’s monthly gross income is $1,472, and the father’s is $3,619.86. The mother initiated this proceeding by filing a petition for rule nisi and for modification. The mother was represented by Legal Services of Metro Birmingham, which provides legal assistance to low income families.
“In her petition for modification, the mother requested that the child support be increased and that she be allowed to claim both children as dependents for tax purposes. The trial court granted the mother’s requested relief after finding a material change in circumstances. Regarding the rule nisi portion, the trial court determined that the father had failed to pay for ... his share of certain medical expenses. The trial court entered [a] judgment[] against the father for the amounts that he owed to the mother.... ”

Bertram, 709 So.2d at 1278-79.

“Clearly, the father is capable of paying his own attorney fees. Given the financial circumstances of the parties, as well as the results of the litigation, we find it to be an abuse of discretion to require the mother to pay monies toward the father’s attorney fees.”

709 So.2d at 1278-79.

We conclude that the trial court abused its discretion in awarding attorney fees to the husband in the amount of $1,600. See Bertram, supra. The wife in this case had limited financial resources and prevailed on her claims. Based on the record presented, the fact that the wife dismissed the claim for postminority support is- not a sufficient basis for awarding attorney fees to the husband.

The wife also contends that the trial court abused its discretion in failing to award attorney fees to her. Although a trial court may award attorney fees to the prevailing party where a spouse is found to be in contempt of a divorce judgment, we cannot conclude that it was an abuse of discretion for the trial court not to award the wife attorney fees in this case.

Based on the foregoing analysis, the judgment of the trial court is affirmed in part and reversed in part, and the cause is remanded for the trial court to enter a judgment consistent with this opinion.

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

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

CRAWLEY, J., dissents.

      . The wife had also borrowed $250 from her former father-in-law to pay for the children's graduation expenses and $1,300 to buy one child a truck.,

      . The husband further testified that he and his current wife earn a combined income of $3,336 per month before taxes.


author: YATES, Presiding Judge.

text:
    Janice Mae SCHWADRON v. Allan SCHWADRON. Allan Schwadron v. Janice Mae Schwadron.
    2010050.
    Court of Civil Appeals of Alabama.
    July 12, 2002.
    Bryant F. Williams, Jr., Ozark, for appellant/cross-appellee Janice Mae Schwad-ron.
    Jere C. Segrest and Kevin Walding of Hardwick, Hause & Segrest, Dothan, for appellee/cross-appellant Allan Schwadron.
   YATES, Presiding Judge.

The parties were married on November 30, 1990. No children were born of this marriage. This was both party’s second marriage. On October 18, 2000, the husband sued for a divorce, requesting an equitable division of the marital property. On November 28, 2000, the wife answered. On December 15, 2000, the wife counterclaimed, alleging adultery and an irretrievable breakdown of the marriage and requesting alimony and attorney’s fees and costs. In February 2001, the wife moved for an order granting her exclusive possession of one of the parties’ two homes, and spousal support pendente lite. Following an ore tenus hearing, the court entered an order on July 10, 2001, divorcing the parties on the grounds of incompatibility and adultery committed by the husband. The divorce judgment stated, in part:

“(1) [The husband] is awarded the home of the parties at 200 Asphodel Drive ... with the obligation to pay the indebtedness thereon and to hold [the wife] harmless therefrom ...
“(5) [The wife] is awarded the home at 308 Summerrain Terrace in Dothan, Alabama with all of the furniture and furnishings therein not awarded to [the husband] otherwise, [the husband] being responsible to pay off or remove any indebtedness thereon within six months.
“(6) [The husband] is ordered to pay [the wife] within 60 days fifty-five thousand dollars, ($55,000.00) as further property settlement and on or before the first day of each month commencing July 1, 2001 $5,500.00 as periodic alimony until [the wife’s] death, remarriage or cohabitation. [The husband] is responsible for all the marital debts through June, 2001.
“(7) [The husband] is also ordered to contribute $10,000.00 towards [the wife’s] attorney’s fees herein.”

In August 2001, both parties moved for a new trial, or, in the alternative, to alter, amend, or vacate the judgment. On September 12, 2001, the court entered an order amending the final divorce judgment as to paragraphs five (5) and six (6), as follows:

“(5) [The wife] is awarded all of the furniture, furnishings, and appliances located in the home at 303 Summerrain Terrace ... with [the husband] being awarded the home and real estate itself with the obligation to pay the indebtedness thereon.
“(6) The Court finds that as a matter of law the parties have been married for a period of ten years as perceived and required by Section 30-2-51 of the Code of Alabama and therefore awards [the wife] $220,000.00 of [the husband’s] retirement account as further property settlement. [The husband] is ordered to pay to [the wife] ... each month ... the sum of $5,500.00 as periodic alimony until [the wife’s] death, remarriage, or cohabitation. [The husband] is responsible for all the marital debts through June, 2001.”

The wife appealed and moved the trial court to stay its judgment, pending appeal. The husband cross-appealed, and moved the court to stay its judgment and to set a supersedeas bond, pending his cross-appeal. On October 17, 2001, the trial court made the following entry on the case action summary sheet:

“Pending appeal, the Court’s Judgment of divorce ... is stayed as to the award of the house on 303 Summerrain Terrace ... and the division of the retirement account of [the husband]. [The wife] may occupy said home until the appeal is resolved with the obligation of house payments and maintenance. [The husband] is ordered to dispose of neither his retirement account nor the home during such stay. All other provisions shall be effective.”

On October 22, 2001, the trial court made the following entry on the case action summary sheet:

“Upon [the husband’s] motion, the stay is granted. [The wife’s] use of the home at 303 Summerrain Terrace ... with the obligation of making the mortgage payments as maintenance thereof shall be considered pendente lite support pending appeal. [The husband] is ordered to pay [the wife] $5,500 payments ... each month as temporary or pendente lite alimony pending completion of the appeal process. Both parties are ordered not to dispose of any property pending appeal.
“The Court does not see a need for a supersedeas bond due to these orders, but if either party deems such a bond necessary would entertain recommendations as to the amount to be set.”

The wife argues on appeal that the trial court abused its discretion in its division of property, and its award of alimony and retirement benefits, claiming that she had received an insufficient share. A trial court’s determination as to alimony and the division of property following an ore tenus presentation of the evidence is presumed correct. Parrish v. Parrish, 617 So.2d 1036 (Ala.Civ.App.1993). On appeal, issues of alimony and property division must be considered together, and the trial court’s judgment will not be disturbed absent a finding that it is so unsupported by the evidence as to amount to an abuse of discretion. Id. An equitable division of marital assets is not necessarily an equal division, and the trial court is judge of what is equitable. Parrish, supra. Some factors the trial court should consider in dividing marital property and setting alimony payments include “ ‘(1) the earning ability of the parties; (2) their probable future prospects; (3) their age, sex, health and station in life; (4) the duration of the marriage; and (5) the conduct of the parties with reference to the cause of divorce.’ ” Echols v. Echols, 459 So.2d 910, 911-12 (Ala.Civ.App.1984), quoting Stewart v. Stewart, 341 So.2d 490 (Ala.Civ.App.1977).

The husband argues in his cross-appeal that the court erred in awarding a substantial portion of his retirement account to the wife, alleging that the parties did not meet the requirements of § 30-2-51, Ala.Code 1975, because they had not been married for 10 years at the time the divorce was filed. The husband further argues that the trial court abused its discretion in its award of periodic alimony to the wife as to the amount and the duration of the alimony payments. We have recently held “that the most workable and fair interpretation of § 30-2-51(b) is that the duration of the parties’ marriage should be measured by the date of the filing of the complaint for divorce.” Smith v. Smith, 836 So.2d 893, 900 (Ala.Civ.App.2002). In Brasili v. Brasili, 827 So.2d 813 (Ala.Civ.App.2002), we reversed the judgment of the trial court awarding the wife $30,000 from the husband’s deferred-compensation account, holding that “[a]lthough a 401(k) plan falls within the meaning of ‘retirement benefits’ under § 30-2-51(b)(1), the parties in this case were not married for 10 years during which the covered spouse’s retirement benefits were being accumulated; therefore, pursuant to § 30 — 2—51(b), the husband’s 401(k) account is not subject to division.” We noted in Brasili that “although the husband’s 401(k) plan is not subject to division under § 30 — 2—51(b), it may be used by the trial court as a source of income to pay periodic alimony. See Ex parte Bland, 796 So.2d [340,] 345 [ (Ala.2000) ]; Shelton v. Shelton, 595 So.2d 900 (Ala.Civ.App.1992) (retirement benefits can be considered as a source of income upon which a periodic alimony award may be based).” 827 So.2d 821 at n. 9.

At the time of divorce, the parties had been married for just over 10 years. The wife, age 46, testified that she had not been employed during the marriage because the husband insisted that she not work. She stated that she had had previous experience as a dental assistant, dental hygienist, and personal trainer. She testified that her health is generally good, but “questionable” because of a cyst on the pineal gland located in her brain, and a “spot” found on her cervix, for which she has to be reexamined. She testified that she suffers from chronic asthma and severe allergies.

The wife testified that before the marriage she had worked two jobs, earning a combined total of $400 a week. The husband stated that during the marriage the wife had had an “unlimited budget” and was accustomed to spending more than $10,000 per month. He further testified that she would need at least $10,000 per month to maintain her economic status post-divorce. The wife testified that her living expenses after the divorce would be $7,440 per month. She stated that she desired to attend college and that it would take her at least three years to earn a degree. She said that she would be able to work only one job if she attends college.

The husband is 46 years old and has been self-employed as a physician specializing in cardiovascular diseases since 1984. His annual net income over the last 11 years has ranged between $294,000 and $483,000. Before the marriage, he owned a home at 303 Summerrain Terrace in Dothan, which he testified was worth $160,000. Also before the parties’ marriage, the husband bought a lot at 200 Asphodel Drive, where the parties built a home, and resided during their marriage. He testified that “[t]he house was being built for us.” The husband stated that he estimated the current market value of the home to be between $1,000,000 to $1,500,000, but that he owes about $1,300,000 on the home, because of extensive renovations and repairs.

The husband testified that before the marriage he had accumulated retirement funds in the amount of approximately $250,000, which had increased to $916,380 during the marriage. He stated that during the marriage he had purchased investment property valued at $171,000, and that his medical practice held accounts receivable valued at almost $200,000. According to the husband, he held cash in the amount of $19,753, but he testified that he had recently borrowed $290,000 on his life insurance policy to help pay for work being performed on the Asphodel property. According to the husband, he owns stock in his company worth approximately $600.

The husband testified that he had engaged in numerous extramarital affairs, beginning within a year after the parties married. He described himself as a “self-gratifier” stating that “to cope with stress, I use the immature way of food, sex, whatever — something to allow me to preserve some degree of sanity and continue. And the degree of hurt that I might cause other people was less important to me than coping with whatever was going on.” When asked the exact number of women he had been with, he stated, “[i]t’s a number that I prefer not to have to delve into my mind.” The husband admitted having unprotected sex numerous times in a series of one-night stands and affairs. His series of extramarital affairs culminated in an open relationship with another woman, which the husband says “without question” broke up the marriage.

The wife testified that four years ago she learned that her husband was engaged in an extramarital affair, which she did not condone. She further testified that at one point during the marriage, the husband had been charged with sexual harassment at the hospital where he worked, and that he had been “made” to go to counseling. She testified that in February 2000, she “caught” him and another woman in the office late one night together very involved. She stated that she and her husband separated shortly thereafter and have not lived together since.

At the time of the parties’ separation, the husband moved from the Asphodel home. The wife resided there, alone, for about 11 months. The wife testified that during that time, the husband was conducting a major renovation project on the home, which eventually forced her to move out because of the “mess.” Upon leaving the home, she moved into the Summerrain home with her sister, brother-in-law, and nephew, where she was residing at the time of trial.

After carefully reviewing the record, we find that the husband’s multiple marital affairs clearly contributed to the breakdown of the marriage. However, because the parties had not been married for 10 years at the time the husband sued for a divorce, we conclude that the trial court erred in its award of a portion of his retirement benefits to the wife. Nevertheless, we instruct the trial court to revisit its division of property and award of alimony to the wife, taking into consideration the husband’s retirement accounts in determining his separate estate and his ability to pay alimony.

The wife’s request for an attorney fee on appeal is denied.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      . The husband allowed the brother-in-law and his family to live in the home in exchange for the brother-in-law’s maintaining the property and performing various tasks.


author: THOMPSON, Judge.

text:
    Deborah Jann Howard FOMBY v. Jay Timothy FOMBY.
    2010508.
    Court of Civil Appeals of Alabama.
    July 19, 2002.

      Douglas C. Freeman, Montgomery, for appellant.
   THOMPSON, Judge.

Deborah Jann Howard Fomby (“the mother”) and Jay Timothy Fomby (“the father”) were divorced by a May 4, 1992, judgment of the trial court. Two children, a son and a daughter (hereinafter collectively referred to as “the children”) were born of the parties’ marriage. The divorce judgment awarded the mother and the father joint legal custody and awarded the mother primary physical custody of the children. On May 29, 2001, the father filed a petition seeking to modify custody. On June 14, 2001, the mother filed an answer and a counter-petition, seeking to modify the father’s child-support obligation. On August 23, 2001, the father filed a motion to amend his petition for modification to seek custody of only the son; the trial court allowed the father to so amend his petition. On the same date, the father filed an offer of judgment and a motion for a pendente lite hearing seeking an award of temporary custody of the son. On August 30, 2001, the trial court entered an order awarding the father temporary custody of the son.

On September 18, 2001, the father filed a motion to determine child support; in the alternative, he sought to have the current child-support payments placed in an escrow account pending a final hearing. The mother filed a response to the petition. On October 10, 2001, the trial court entered an order ordering the father to pay temporary child support of $430 per month. On November 28, 2001, the trial court held a hearing and received ore ten-us evidence. On December 3, 2001, the trial court entered an order awarding the father custody of the son and ordering the father to pay $428.61 per month in child support. On December 10, 2001, the mother filed a motion to alter, amend, or vacate the trial court’s order; the trial court denied that motion. On January 11, 2002, the mother filed a motion to include the trial court’s handwritten notes in the record on appeal; the trial court denied that motion. The mother timely appealed.

The mother raises only one issue on appeal. The mother asserts that the trial court erred in applying the Rule 32, Ala. R. Jud. Admin., Child Support Guidelines because it failed to incorporate a CS-42 child-support guidelines form into its December 3, 2001, order. If the combination of the parties’ income is within the amounts specified in the child-support schedule of Rule 32(A) and (C), Ala. R. Jud. Admin., there is a rebuttable presumption that the amount of child support determined by application of the Child Support Guidelines is the correct amount of child support to be awarded. Rule 32(A), Ala. R. Jud. Admin.

“[T]his court has consistently held that the application of Rule 32 is mandatory in child-support actions filed on or after October 9, 1989. A trial court may deviate from the child-support guidelines in determining a child-support amount; however, any deviation is improper if it is not justified in writing. In Martin v. Martin, 637 So.2d 901, 902 (Ala.Civ.App.1994), this court issued the following directive:
“ “We hold, therefore, that the word “shall” in Rule 32(E), Ala. R. Jud. Admin., mandates the filing of a standardized Child Support Guidelines Form and a Child Support Obligation Income Statement/Affidavit Form.’
“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. When the court determines that application of the guidelines would be manifestly unjust or inequitable, and then deviates from the guidelines in setting a support obligation, the court must make the findings required by Rule 32(A)(ii), Ala. R. Jud. Admin. When Rule 32(E) has not been complied with and child support is made an issue on appeal, this court may reverse the judgment of the trial court and remand the case for further proceedings in compliance with Rule 32.”

Thomas v. Norman, 766 So.2d 857, 859 (Ala.Civ.App.2000) (some citations omitted) (emphasis added). See also Morrison v. Morrison, 837 So.2d 840 (Ala.Civ.App.2001).

The trial court ordered the father to pay child support in the amount of $428.61 per month. The record contains several “proposed” CS-42 child-support guidelines forms prepared by both parties. However, the amount of child support awarded by the trial court in its December 3, 2001, order does not correspond to the recommended child-support obligation on any of the CS-42 child-support guidelines forms submitted. 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 ... in each action to establish or modify child support obligations and [those forms] shall be of record and shall be deemed to be incorporated by reference in the court’s child support order.” Rule 32(E), Ala. R. Jud. Admin.; see also Nelson v. Landis, 709 So.2d 1299, 1300 (Ala.Civ.App.1998). The record in this case does not contain all the child-support guidelines forms required pursuant to Rule 32(E), Ala. R. Jud. Admin., and the trial court’s basis for determining the father’s child-support obligation is unclear. As was the case in Nelson v. Landis, 709 So.2d 1299, 1300-01 (Ala.Civ.App.1998), “[t]his court has unsuccessfully attempted, based on the evidence in the record, to determine the manner in which the trial court determined the father’s child support obligation.” Therefore, this court must reverse the decision of the trial court regarding the issue of child support and remand the case for the trial court to enter a child-support determination that complies with the Rule 32, Ala. R. Jud. Admin., Child Support Guidelines, especially with Rule 32(E), Ala. R. Jud. Admin. See Nelson v. Landis, supra.

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

REVERSED AND REMANDED.

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


author: CRAWLEY, Judge.

text:
    Kenneth HOLLEN v. Deborah E. Hollen CONLEY.
    2010002.
    Court of Civil Appeals of Alabama.
    July 19, 2002.

      Gary J. Bone, Gadsden, for appellant.
    Joshua B. Sullivan and Christie D. Knowles of Henslee, Robertson, Strawn & Knowles, L.L.C., Gadsden, for appellee.
   CRAWLEY, Judge.

Kenneth Hollen (“the father”) and Deborah E. Hollen Conley (“the mother”) were divorced in 1986. They were awarded joint custody of their minor son. From 1986 until 1990, the son lived with the mother in Kentucky during the school year and with the father during the summer. In 1990 until February 1994, the son began living with the father during the school year and with the mother during the summer. In February 1994, he resumed living with his mother during the school year and spending the summers with the father. In April 1999, when the son was 18, he again began residing with the father. Although the son had dropped out of high school in early 1999, he began taking welding courses at a community college in the fall of 1999. He is also pursuing his GED certifícate.

In June 1999, the father petitioned for a modification of custody and also sought both child support and postminority-edu-cational support. The mother filed a counterclaim in which she requested that the trial court compute the child-support ar-rearage owed to her by the father. The father was awarded custody of the son and child support pending the final hearing. After a trial in September 2000, the court deemed the father’s petition for custody and child support moot because the son had reached the age of 19 years, denied the father’s request for postminority-edu-cational support, and determined that the father owed $23,521.32 in past-due child support, including interest. The father filed a postjudgment motion, which the trial court denied; he then appealed.

The father first argues that the trial court erred by denying the requested post-minority-educational support. The judgment indicates that the father failed to prove the necessary elements to entitle the son to an award of postminority-educational support. See Ex parte Bayliss, 550 So.2d 986 (Ala.1989). However, the father points out that the trial court, during the trial, indicated that postminority-edu-cational support could not be ordered because the son had not graduated from high school and was not yet attending college. The mother contends that the son lacks the requisite aptitude for and commitment to education; therefore, she reasons, the trial court’s denial of the father’s request for postminority support should be affirmed.

The son is pursuing vocational training as a welder and is taking GED preparation courses. The record indicates that the son may qualify for a degree program if he earns his GED certificate before he completes the welding course. However, if the son does not earn his GED certificate, he will still earn certification as a welder. This court has extended the postminority-educational support first awarded in Ex parte Bayliss to both technical and vocational training, Barnes v. Barnes, 695 So.2d 1204, 1205 (Ala.Civ.App.1997), and the completion of a high school education, Beavers v. Beavers, 717 So.2d 373, 377 (Ala.Civ.App.1997), basing both extensions on public-policy grounds of fostering “ ‘ “a well-equipped, a well-trained, and well-educated citizenship” ’ ” first discussed in Bayliss. See Ex parte Bayliss, 550 So.2d at 994 (quoting Ogle v. Ogle, 275 Ala. 483, 487, 156 So.2d 345, 349 (1963), quoting in turn Pass v. Pass, 238 Miss. 449, 458, 118 So.2d 769, 773 (1960)).

Although the son did not complete his high school education and, in fact, failed at least three grades during his elementary and junior high school career, the son has maintained a “C” average in the welding program. A “C” average has been determined to be sufficient to reflect the requisite aptitude for the requested education. See Kent v. Kent, 587 So.2d 409, 411 (Ala.Civ.App.1991). We agree with the mother that the son’s past academic performance has not been such that one would expect him to have an aptitude for or a commitment to a college education. Howevey, the son, thus far, has demonstrated a commitment to and an aptitude for technical training in welding. This, in our opinion, distinguishes this case from State ex rel. Hayes v. Hayes, 620 So.2d 49, 51 (Ala.Civ.App.1993), in which this court affirmed a trial court’s decision not to award postmi-nority-educational support to a child whose academic performance had been “‘consistently abysmal’ ” and who had “ ‘shown absolutely no aptitude or inclination for post-secondary education of any kind, either academic or technical.’ ”

In light of the trial court’s apparent misconception concerning whether postmi-nority-educational support could be awarded to the son because he was not pursuing a college education, we reverse the trial court’s judgment insofar as it denies the requested support, and we remand with instructions that the trial court consider whether the father has proven the requirements of Ex parte Bayliss and its progeny. If the trial court concludes that an award of postminority-educational support is warranted, it may tailor that award to the requested education; for example, it may restrict the term of such support (i.e., for no more than two years) or it may include only those costs associated with the pursuit of welding certification as opposed to the pursuit of a college degree.

The father also argues that the court erred by adopting the mother’s computation of his child-support arrearage, which, he alleges, was calculated improperly for several reasons. Chief among the father’s complaints is that the mother’s computations include compounded interest. After reviewing the mother’s computations, we conclude that the judgment awarding the mother a $23,521.32 arrear-age does include compounded interest. Although Alabama law requires that interest on past-due child-support payments be assessed, the law does not permit the use of a compounded-interest formula. See Campbell v. Campbell, 827 So.2d 111, 115 (Ala.Civ.App.2001). The mother improperly used a compounded-interest formula in calculating the father’s arrearage.

After reviewing the calculations, we have also determined that the mother’s calculations do not properly compute the interest due on each child-support payment the father missed. Under Alabama law, child-support payment “installments become final judgments as of the date due.” Osborne v. Osborne, 57 Ala.App. 204, 206, 326 So.2d 766, 767 (Ala.Civ.App.1976). Because “judgments for the payment of money bear interest from the date of rendition” “it follows that such [child-support] judgments would bear interest from due date.” Osborne, 57 Ala.App. at 206, 326 So.2d at 767. Therefore, to properly calculate interest on an arrearage, one would have to compute the interest due on each installment from its due date. Id. The mother’s calculations did not.

The father also argues that he was due credits pursuant to the language of the November 5, 1999, pendente-lite order (“November 1999 order”), which reads, in pertinent part:

“That [the mother] shall be required to pay to the [father] the sum of $75.00 per week as support for the minor son ... beginning April 26, 1999; however, [the mother] shall not be required to pay said $75 per week to the [father] but [the father] will be given credit toward[ ] any arrearages owed by the [father] to the [mother] until such time as [the minor son] shall reach the age of 19 years, so long as [the minor son] is residing with the [father] and remains in school.”

After the trial, the court wrote a memorandum to the parties’ attorneys in which it outlined what further evidence it believed was needed to resolve the issues presented. In that memorandum, the trial court reminded the parties that the arrear-age calculation “must take into consideration the provisions of the November 5, 1999, agreed-upon order.”

Our review of the mother’s calculations reveal that she credited the father for the $75 per week from November 11, 1999, to April 10, 2000. Her calculations do not comply with the November 1999 order because she did not credit the father with the $75 per week from April 26, 1999, to November 10, 1999. The mother also failed to include as a credit one-half of the school expenses the father argued he had paid and for which he introduced evidence at trial. The father presented receipts showing he had expended $1,348.94 for books and welding supplies. The mother had credited the father with only $478, less than half the amount of the educational expenses the father submitted.

In addition, the father argues that the mother failed to incorporate the terms of an alleged 1997 agreement between the parties concerning the amount of child support the father was to pay. According to the father, the parties agreed to reduce his child-support obligation to $30 per week. He points out a letter in the record indicating that the mother’s attorney agreed that the parties had negotiated an agreement, but that the agreement had not been reduced to writing. Thus, he argues, based on Ala.Code 1975, § 34-3-21, the mother’s attorney bound the mother to the alleged agreement.

Although § 34-3-21 does discuss an attorney’s authority to bind his client, the agreement sought to be enforced must, according to the statute, be in writing or be entered into the minutes of the court. The mother points out that the father’s own evidence proves that the alleged agreement was not in writing and that it was not approved by the court. Without a writing or an entry into the minutes of the court evidencing the agreement, there is no basis for enforcing the alleged agreement. See Ex parte Kiely, 579 So.2d 1366, 1367 (Ala.Civ.App.1991) (citing Ala.Code 1975, § 34-3-21); accord Proffitt v. Cochran, 742 So.2d 188, 189 (Ala.Civ.App.1999). We cannot hold the trial court in error for failing to enforce the alleged agreement.

The father’s final argument concerning the child-support-arrearage calculation is that the mother failed to credit him with the amount of child support the mother should have paid during the years the son lived with the father. He argues that the trial court intended such a result based upon a comment by the trial court during the trial and the language of the trial court’s memorandum to the parties, as quoted below:

“The Court: So, what I’ll do, I’ll give credit for the time the child was with his father based upon the same support that was ordered.”
“4. I will give the ... father credit for the ■ three (3) years the child lived with his father less 3 months in the summer during that time. Also credit for the summer months during the years the child was with the ... mother but spent summers with father.”

The mother argues that the trial court intended to credit the father dollar-for-dollar the amount he was to pay in child support during those three years but that the trial court could not have imposed upon the mother a duty to have paid child support for those years. We agree. Although the trial court was permitted to modify child support retroactive to the date the petition for modification was filed, see State ex rel. Nathan v. Nathan, 680 So.2d 339, 342 (Ala.Civ.App.1996), it could not order that the mother pay child support for previous years in which the father had been ordered to pay child support. To allow it to do so would permit it to modify the prior judgment; the modification of past-due child-support payments is not permitted under Alabama law. See Frasemer v. Frasemer, 578 So.2d 1346, 1348 (Ala.Civ.App.1991) (explaining that a trial court cannot release or discharge past-due support payments, but that it may award a credit against any arrearage). The trial court did not err by failing to award the father a “credit” in an amount equal to what the mother’s child-support obligation would have been had she been ordered to pay child support during those years the son resided with the father.

Because the arrearage computation erroneously includes compounded interest, fails to properly compute interest on each past-due installment, and fails to properly award credits under the November 1999 order, we must reverse the trial court’s judgment insofar as it awards a $23,521.32 child-support arrearage. We remand the case for the trial court to properly credit the amounts due to be credited pursuant to the November 1999 order and to properly compute the interest due on the ar-rearage.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      . The mother was ordered to pay $75 per week in child support; however, the order did not require the mother to make payments to the father. Instead, the order required that the father receive credits against his child-support arrearage in the amount equal to the mother's child-support obligation.

      . “Aptitude,” as used in the context of postmi-nority-educational support, has been defined as "an ability to comprehend the course subject matter in such a way as to make at least average grades upon examination.” Kent v. Kent, 587 So.2d 409, 411 (Ala.Civ.App.1991).

      . Although whether the son is attending the program ''full-time” or not is disputed, such a consideration is not relevant to whether post-minority-educational support should be awarded, but instead is a necessary restriction on such an award. See Kent, 587 So.2d at 413.

      . The mother argues that the father failed to raise this issue in the trial court, which, she says, precludes this court from considering it on appeal. However, the trial court's award of $23,521.32, including interest, is a factual finding that the calculation of the arrearage and interest is correct. Accordingly, the father was not required to raise the issue in a postjudgment motion to preserve the issue for our review. Ex parte James, 764 So.2d 557, 559 (Ala.1999).