source: Caselaw Access Project

author: THOMPSON, Judge.

license: Public Domain

text:
    George Herbert WINGARD v. James R. LITTLE and Tana Little.
    2020702.
    Court of Civil Appeals of Alabama.
    Sept. 26, 2003.
    Certiorari Denied Dec. 12, 2003 Alabama Supreme Court 1030099.

      Charles J. Kettler, Jr., of Kettler & Kettler, Luverne, for appellant.
    Stephen M. NeSmith of Riggs & Ne-Smith, P.A., Montgomery, for appellees.
   On Rehearing Ex Mero Motu

THOMPSON, Judge.

The opinion of August 8, 2003, is withdrawn, and the following is substituted therefor:

James R. Little and Tana Little (“the plaintiffs”) sued George Herbert Wingard in the Pike Circuit Court (“the trial court”) seeking damages on claims of detinue and breach of contract and seeking a declaratory judgment. In their complaint, the plaintiffs alleged that Wingard had retained possession of a mobile home that belonged to them.

The record before this court is meager and contains only the few pleadings and documents designated by Wingard for inclusion in the record on appeal. The plaintiffs did not seek to supplement the record on appeal pursuant to Rule 10, Ala. R.App. P. The facts as set forth in this opinion have been gleaned from those pleadings and documents included in the record on appeal and the parties’ briefs on appeal.

The following facts are alleged in the plaintiffs’ complaint. Wingard was married to Edna Wingard, James Little’s grandmother (“the grandmother”). The grandmother became ill and offered to buy the plaintiffs a mobile home if they would move on to her land and take care of her for the duration of her illness. The plaintiffs accepted the grandmother’s offer, and she purchased the mobile home for them in return.

Shortly thereafter, the grandmother died. After the grandmother’s death, the plaintiffs remained in the mobile home and continued to care for Wingard. The plaintiffs claim that Wingard initially agreed to let them remove the mobile home from his property but that he changed his mind after receiving advice from his sister and his girlfriend. The plaintiffs allege that they received a telephone call from Win-gard’s attorney informing them that Win-gard would not relinquish possession of the mobile home. The plaintiffs then notified Wingard’s attorney that the title to the mobile home was in their names. The plaintiffs filed the underlying action specifically seeking, among other things, to gain possession of the mobile home and an award of damages for Wingard’s “use” of the mobile home during the time the plaintiffs did not have possession of it.

On October 8, 2002, a jury entered a verdict awarding the plaintiffs possession of the mobile home and determined that the alternate money value of the mobile home was $40,000. The jury denied the plaintiffs’ claim for damages for the wrongful retention of the mobile home. The trial court entered a judgment on that verdict. See § 6-6-256, Ala.Code 1975 (providing that a judgment in a detinue action “must be for the property sued for, or its alternate value, with damages for its detention”).

On April 9, 2003, the plaintiffs obtained a writ of execution that provided for the execution of the judgment in the amount of the alternate value of the mobile home as assessed in the trial court’s judgment, plus interest. The writ of execution did not provide for the recovery or retrieval of the mobile home itself. On April 21, 2003, Wingard filed a motion to quash or amend the plaintiffs’ writ of execution, claiming that the remedy of detinue did not give the plaintiffs the option of choosing between the mobile home and the alternate money value of the mobile home assigned by the jury and the trial court’s judgment. According to Wingard, the mobile home was on his property and was available for seizure by the sheriffs office. On May 2, 2003, the trial court denied Wingard’s motion to quash or amend the writ of execution; Wingard timely appealed from that judgment.

The only issue raised on appeal is a question of law. Where the issue presented is a question of law, this court’s review is de novo. Reynolds Metals Co. v. Hill, 825 So.2d 100 (Ala.2002). Moreover, the ore tenus rule does not apply, and there is no presumption of correctness in favor of the trial court’s ruling. Gilbert v. James Russell Motors, Inc., 812 So.2d 1269 (Ala.Civ.App.2001).

The plaintiffs attempted to enforce the writ of execution by seeking to obtain the alternate value of the mobile home rather than the return of the mobile home itself. On appeal, Wingard argues that the trial court erred in denying his motion to quash or amend the plaintiffs’ writ of execution. Wingard contends that the plaintiffs were required to accept the return of the mobile home rather than attempt to enforce their judgment in detinue by seeking the alternate value of the mobile home. The plaintiffs maintain that they could elect whether to accept the return of the property or to seek the alternate value of that property; in support of their argument, the plaintiffs cite Ex parte Vaughan, 168 Ala. 187, 53 So. 270 (1910); Ivey v. Verbeck, 461 So.2d 813 (Ala.Civ.App.1984); and Williams v. Borden Foods Co., a Division of Borden, Inc., 429 So.2d 591 (Ala.Civ.App.1982).

Our supreme court set forth the law pertaining to judgments and the execution of judgments in a common-law detinue action by holding that under the common law

“[tjhere [was] no option of delivering up the goods or paying the value, but on the contrary, the judgment and execution are absolutely for the restoration of the chattel, if the same c[ould] be found, together with damages and costs; and only in the alternative as to the value, in case the chattel should be destroyed or [removed].”

Robinson v. Richards, 45 Ala. 354, 358 (1871). The Alabama Legislature first codified the common-law principles pertaining to the manner in which a judgment in detinue may be executed at § 3782, Ala. Code 1907; later versions of that part of the Alabama Code pertaining to the execution of a judgment in detinue are found at § 7393, Ala.Code 1923; Title 7, § 922, Ala. Code 1940; and § 6-6-261, Ala.Code 1975. The current codification, found at § 6-6-261, Ala.Code 1975, is largely unchanged from the original versions of the codification of statutes pertaining to the execution of detinue judgments. The current statute provides:

“If the party in whose favor the judgment is given is in possession of the property in controversy, he shall retain it or, if the property is in possession of the officer seizing it, he shall deliver it to the successful party, and a writ of execution will issue for the damages and costs of the action. If the property is in possession of the losing party, the execution shall command the sheriff to take the property in controversy and deliver it to the successful party and, if the property cannot be had, that he make the value thereof out of the goods and' chattels, lands and tenements of the party and his sureties, if any, against whom the judgment is entered and shall command that he so make the damages assessed and costs of the action.”

§ 6-6-261, Ala.Code 1975 (emphasis added).

Section 6-6-261, AJa.Code 1975, must be read in pari materia with other Code sections dealing with the same subject matter. Ex parte First Family Fin. Servs., Inc., 718 So.2d 658 (Ala.1998). “Statutes should be construed together so as to harmonize the provisions as far as practical.” Ex parte Jones Mfg. Co., 589 So.2d 208, 211 (Ala.1991). Wingard argues that § 6-6-261, Ala.Code 1975, requires the plaintiffs to accept the mobile home and that his interpretation of § 6-6-261 is supported by § 6-6-263, Ala.Code 1975, which sets forth a form for the writ of execution. According to Wingard, § 6-6-263 “fully accords with [§ 6-6-261, Ala.Code 1975,] and directs the sheriff to attach and deliver the specific personal property recovered by judgment.” The form set out in § 6-6-263 directs the sheriff to “attach the specific personal property” the successful party recovered in the detinue judgment “if the same may be had.” That form also allows the sheriff to seek the alternate money damages if the property “cannot be attached” because the unsuccessful litigant has “secrete[d]” or “remove[d]” the property, or if the property may not be recovered. § 6-6-263, Ala.Code 1975.

In Ex parte Vaughan, supra, our supreme court considered an appeal pertaining to the manner in which a writ of execution on a detinue judgment was executed. The court found that the writ of execution was proper under § 3785, Ala. Code 1907, the precursor to § 6-6-263, Ala. Code 1975. The writ provided for the attachment of two mules, the property at issue in the case; for the seizing of the defendant’s property, if the particular property the plaintiff sought to have returned in her detinue action was not available, until such time as the defendant delivered the mules; or, if the defendant did not deliver the mules, for the sheriff to obtain the alternate value of the mules from the defendant’s property. The sheriff executed the writ to obtain the alternate value of the mules at issue rather than to recover the mules themselves. The plaintiff sought, through a petition for a writ of mandamus, the enforcement of that part of the writ of execution that provided for the return of the mules. However, our supreme court concluded that the plaintiff could have sought other writs to secure the return of the mules rather than the alternate value of the mules and that, because she did not do so, she had no right to the issuance of the writ of mandamus she sought. In explaining its holding, the court stated:

“This return [of the sheriffs], however, was not conclusive upon the plaintiff, so as to prevent her from subsequently obtaining the specified property under other appropriate writs to be thereafter issued. Plaintiff was not bound to accept the alternative value in lieu of the specific property, and thereby satisfy her judgment against defendant, and relieve the sheriff from all liability for failure to discharge his duty under this writ.... The plaintiff is not required in detinue [actions] to accept the alternative value, if tendered by the defendant or the sheriff She may decline it, if offered, and insist upon having the specific property if it can be obtained, though she cannot, of course, have both. It is not for the defendant or the sheriff to say whether the plaintiff shall have the specific chattel or the alternative value as fixed by the judgment in deti-nue; but this is a question for the plaintiff to decide.”

Ex parte Vaughan, 168 Ala. at 189-190, 53 So. at 271.

This court later erroneously interpreted the above-quoted passage from Ex parte Vaughan to allow the plaintiff to elect between recovering the specific property whose return the plaintiff sought or that property’s alternate value. This court stated that in executing a judgment in detinue, “[t]he plaintiff gets to elect whether he will accept return of the chattel or the alternate value.” Ivey v. Verbeck, 461 So.2d 813, 816 (Ala.Civ.App.1984). In reaching that conclusion in Ivey v. Verbeck, this court cited as authority Williams v. Borden Foods Co., supra, which had in turn asserted a similar proposition and had cited Ex parte Vaughan, supra, as its supporting authority.

In reaching its determination in Williams v. Borden Foods Co., supra, that the prevailing party could elect between receiving the property sought or receiving its alternate value, this court quoted that portion of Ex parte Vaughan, 168 Ala. at 190, 53 So. at 271, which states:

“It is not for the defendant or the sheriff to say whether the plaintiff shall have the specific chattel or the alternative value as fixed by the judgment in deti-nue; but this is a question for the plaintiff to decide.”

We do not interpret that language to provide the prevailing party an election because the preceding sentences in Ex parte Vaughan clearly refer only to the losing party’s inability to force the prevailing party to accept the alternate value of the property rather than the return of the property itself:

“The plaintiff is not required in detinue [actions] to accept the alternative value, if tendered by the defendant or the sheriff. She may decline it, if offered, and insist upon having the specific property if it can be obtained, though she cannot, of course, have both.”

168 Ala. at 189-90, 53 So. at 271. When read together, the passages from Ex parte Vaughan, as quoted in this opinion, indicate that a successful litigant may not be forced to accept the alternate money value of the property that is the subject of the detinue judgment. Further, the court in Ex parte Vaughan went on to state that the sheriff should seek to collect the alternate money value only if the property could not be found, was secreted, or was removed from the unsuccessful litigant’s property. Thus, in Ex parte Vaughan, our supreme court concluded only that the prevailing party in a detinue action may not be forced to accept the alternate value of the property he or she sought to recover and that the prevailing party may instead elect to insist on the return of the property rather than receiving the alternate value of the property; the court did not address whether a prevailing party may elect, in seeking to execute a judgment in detinue, to seek the alternate value of the property he or she had sought to have returned.

Therefore, we conclude that this court’s reliance in Williams v. Borden Foods Co., supra, on Ex parte Vaughan misconstrued the meaning of that passage on which it relied and that it misapprehended the holding in Ex parte Vaughan. Our current interpretation of Ex parte Vaughan, supra, is consistent with the language of § 6-6-261, which codified the common law concerning executing judgments in deti-nue. That section provides that the writ of execution shall be for the return or recovery of the property itself and that, if the property “cannot be had,” the prevailing party may recover the alternate value of the property. See § 6-6-261. See also § 6-6-263, Ala.Code 1975 (setting forth the form of the writ of execution, which specifies that the property sought shall be recovered if it may be had, and that the alternate value may be recovered if the property sought is not available).

According to Wingard, he has made the mobile home available to the plaintiffs or to the sheriff; however, he claims they have refused to accept it. Section 6-6-261, Ala.Code 1975, is clear in requiring that the sheriff “shall” seize the property if it is available. The plaintiffs do not have the right to seek the alternate money value of the property unless “the property cannot be had.” § 6-6-261, Ala.Code 1975. The plaintiffs may not seek the alternate money value of the mobile home unless Wingard refuses to return the mobile home to the plaintiffs or the sheriff is unable to seize the mobile home.

ON REHEARING EX MERO MOTU: OPINION OF AUGUST 8, 2003, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED.

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

      . The jury considered the plaintiffs’ claim alleging Wingard’s "use” or detention of the mobile home, but it awarded the plaintiffs no damages on that claim. No appeal was taken from that aspect of the judgment on the jury’s verdict.


author:
THOMPSON, Judge.
      MURDOCK, Judge,

text:
    Faith NNAIFE and Felicia Nnaife v. Clifford PITT, James W. Kelley, and Carolyn B. Kelley.
    2020739.
    Court of Civil Appeals of Alabama.
    Dec. 19, 2003.

      James P. Hess of Hess & McMurtrie, P.C., Huntsville, for appellants.
    Clement J. Cartron, Huntsville, for ap-pellees James W. Kelley and Carolyn B. Kelley.
   THOMPSON, Judge.

On January 29, 2002, Faith Nnaife and Felicia Nnaife (hereinafter collectively referred to as “the plaintiffs”) filed a complaint seeking to enforce their statutory right to redemption of certain real property previously sold at a foreclosure sale. In conjunction with the filing of the complaint, the plaintiffs paid $17,901.51 into the trial court; that amount represented the outstanding indebtedness on the subject property, interest, and lawful fees.

Prior to a hearing at which the trial court received ore tenus evidence, the parties stipulated to the following facts. On September 1,1989, the plaintiffs purchased a piece of undeveloped residential property from Clifford Pitt for $18,000. The plaintiffs executed a mortgage in the amount of $16,000 to Pitt in which the plaintiffs agreed to pay $200 per month at a 12% interest rate. The mortgage was for a term of 10 years and was due to be paid in full on September 1,1999. On January 29, 2001, Pitt foreclosed under a power of sale and purchased the subject property for $5,000, leaving an unpaid balance on the mortgage debt of $14,446.78. A foreclosure deed was issued on January 29, 2001.

On June 29, 2001, Pitt sold the property to James W. Kelley and Carolyn B. Kelley. The Kelleys purchased the property for $18,000. Pitt conveyed title to the Kelleys by warranty deed on June 29, 2001. On January 10, 2002, the plaintiffs, in an effort to redeem the property, submitted a written demand, pursuant to § 6-5-252, Ala. Code 1975, in which they asked Pitt to submit a statement of the debt and lawful charges that he claimed. On January 16, 2002, Pitt responded to the plaintiffs’ request, indicating that a $14,446.78 mortgage indebtedness existed on the date of foreclosure and that $1,803.47 in interest on that debt had accrued to date and identifying various charges for foreclosure fees. Pitt provided the plaintiffs with a detailed list of all payments he had received from the plaintiffs; that list was admitted into evidence at trial.

On November 27, 2002, Pitt executed a document entitled “Assignment of Debt,” wherein he assigned his interest in the $14,446.78 mortgage debt that was owed by the plaintiffs to the Kelleys. The document prepared by Pitt provided that the assignment would be retroactively applied to January 29, 2001, the date of the mortgage foreclosure.

The trial court held a hearing on January 21, 2003, at which it received ore tenus evidence. The testimony elicited at the hearing primarily addressed the plaintiffs’ claim that the payment schedule prepared by Pitt, purportedly listing all the payments he received from the plaintiffs, did not include a $5,000 cash payment. Faith Nnaife testified that he made a $5,000 cash payment to Pitt in October 1989, shortly after purchasing the property from Pitt. According to Nnaife, Pitt approached him for a payment, claiming that he had a problem with the Internal Revenue Service and that he needed the money immediately. Nnaife testified that Pitt told him the money would be credited to the outstanding balance on the mortgage. Nnaife stated that he did not ask for a receipt for the $5,000 cash payment.

Nnaife further testified that he had made more payments than those payments reflected in Pitt’s records. According to Nnaife, he made payments to Pitt up until September 1999. Nnaife stated that he had kept records of payments he made to Pitt from August 1997 to September 1999; however, the records were not produced at trial or admitted into evidence.

On March 5, 2003, the trial court entered a judgment in which it, among other things, found that the unpaid balance of the mortgage debt was a “lawful charge” as contemplated by § 6 — 5—253(a) (4), Ala. Code 1975, and that the plaintiffs were not entitled to a credit for payments allegedly made to Pitt prior to the foreclosure date that were not reflected in the payment history of the mortgage debt. The plaintiffs filed a postjudgment motion pursuant to Rule 59, Ala. R. Civ. P., which was subsequently denied by the trial court. The plaintiffs appealed.

The plaintiffs contend on appeal that the trial court incorrectly determined that the unpaid balance of the mortgage debt was a “lawful charge” as contemplated by § 6 — 5—253(a)(4), Ala.Code 1975. Specifically, the plaintiffs assert that the November 27, 2002, assignment of the mortgage indebtedness from Pitt to the Kelleys was not effective so as to make the balance of the mortgage indebtedness a “lawful charge” that must be paid to the Kelleys by the plaintiffs in order to redeem the property. Where the issue presented is a question of law, this court’s review is de novo and no presumption of correctness attaches to the trial court’s judgment. Reynolds Metals Co. v. Hill, 825 So.2d 100 (Ala.2002).

Section 6 — 5—253(a)(4), Ala.Code 1975, states

“(a) Anyone entitled and desiring to redeem real estate under the provisions of this article must also pay or tender to the purchaser or his or her transferee the purchase price paid at the sale, with interest at the rate allowed to be charged on money judgments as set forth in Section 8-8-10 (as it is now or hereinafter may be amended), and all other lawful charges, also with interest as aforesaid; lawful charges are the following:
“(4) Any other valid lien or encumbrance paid or owned by such purchaser or his or her transferee....
“If the redemption is made from a person who at the time of redemption owned the debt for which the property was sold, the redemptioner must also pay any balance due on the debt, with interest as aforesaid thereon to date.”

The plaintiffs rely on Estes v. Johnson, 234 Ala. 191, 174 So. 632 (1937), in support of their contention on appeal. In Estes, a mortgagor’s land was sold at a foreclosure sale for less than the mortgage debt. The purchaser of the foreclosed property then sold the land to the respondents without transferring to them the purchaser’s interest in the unpaid balance of the debt. Thereafter, the mortgagor assigned the right to redeem the property from the foreclosure sale to another party (“the as-signee”). The assignee subsequently filed a redemption action seeking to tender only the amount bid at the foreclosure sale, plus interest. On appeal, the respondents argued that the assignee should have paid the balance of the mortgage debt after deducting the amount of the purchase price they paid. However, relying on § 10145(4), Code of Alabama 1923, the supreme court held that payment of the balance of the mortgage debt was not required unless “ ‘the redemption is made from a person who at the time of redemption owned the debt for which the property was sold.’ ” Estes, 234 Ala. at 192, 174 So. at 633.

The plaintiffs argue that the holding in Estes dictates that the appropriate amount necessary to redeem the property in this case is $5,000 (the amount Pitt paid for the property at foreclosure), plus 12% interest accrued on that amount. However, that argument assumes that the November 27, 2002, document issued by Pitt did not effectively assign his interest in the mortgage indebtedness to the Kelleys. Section 6-5-253(a)(4) provides that if redemption is sought from the person who owned the debt at the time the property was sold, the person seeking to redeem the property must pay any balance due on the debt. The record indicates that Pitt assigned his interest in the mortgage debt to the Kel-leys after he purchased the property at foreclosure and after the plaintiffs sought to redeem the property. However, Pitt’s assignment provided that the Kelleys’ interest in the mortgage debt would be applied retroactively to January 29, 2001, the date Pitt purchased the property at foreclosure.

In Garrett v. Federal Land Bank of New Orleans, 239 Ala. 191, 194 So. 530 (1940), the supreme court addressed a similar factual scenario in which the mortgagee foreclosed on property and purchased that property for less than the total mortgage indebtedness on the property. The mortgagee sold the land in three tracts. Several months after the original mortgager sought to redeem the property, the mortgagee assigned his interest in the mortgage debt to the owners of the three tracts. On appeal, the original mortgager contended that the assignment by the mortgagee did not cause the mortgage debt to become a “lawful charge.” The supreme court held that the mortgagee was a necessary party because the balance due on the mortgage debt was owned by the mortgagee at the time the mortgager sought redemption, that the assignment of the subject matter of the suit pending the outcome of the suit was permissible in equity, and that the mortgage debt was a lawful charge. Garrett, 239 Ala. at 193-94, 194 So. at 532. Given Pitt’s assignment of his interest in the mortgage indebtedness to the Kelleys and the supreme court’s holding in Garrett, we conclude that the mortgage indebtedness was a lawful charge as contemplated in § 6-5-253(a)(4), Ala.Code 1975.

The plaintiffs next contend that the trial court’s judgment does not specify in sufficient detail how the process of redemption is to be accomplished. With regard to the redemption process, the trial court’s order states

“Kelley is to immediately cause to be drawn, and execute, a Statutory Warranty Deed reconveying the lands described in the Complaint exhibit from Kelley as grantor to Naife as grantee. The Deed will be delivered to the Clerk of the Circuit Court. Kelley, or their attorney, is to notify the attorney of Nnaife when delivery is perfected to the Clerk. It is unclear to the Court whether the sum tendered to the Court by Nnaife ($17,901.51) has drawn interest since the date of tender, or shortly thereafter. The Clerk is to determine the amount held, subtract said amount from the redemption price of $20,072.67; immediately notify Nnaife’s attorney, and Nnaife is to pay to the Clerk the difference in the amount held as tender, and the redemption price. Upon receipt by the Clerk of the balance of the redemption price, the Clerk will deliver the Deed to Nnaife or their attorney. In the event the balance of the redemption price is not paid promptly, the Clerk is advised the per diem interest of the monied judgment for the redemption price is $6.60 per day. A ‘reasonable period of time’ is deemed to be fourteen days after the delivery of the Reconveyance Deed by Kelley to the Clerk.”

Contrary to the plaintiffs’ assertion on appeal, we find that the trial court’s judgment clearly instructs the parties in sufficient detail how to effectively redeem the property.

The plaintiffs also contend on appeal that the trial court erred when it failed to hold a hearing on their Rule 59, Ala. R. Civ. P., postjudgment motion. It is well settled that the decision whether to grant or deny a Rule 59 motion rests largely within the discretion of the trial court. Gray v. Bush, 835 So.2d 192 (Ala.Civ.App.2001); Barrett v. Davis, 705 So.2d 462 (Ala.Civ.App.1997); Coker v. Farmers Mut. Exch., 425 So.2d 489 (Ala.Civ.App.1983). However, such a decision is subject to appellate review and may be reversed where a legal right was abused and the record plainly and palpably shows the trial court is in error. Gray, supra.

Rule 59(g), Ala. R. Civ. P., provides that postjudgment motions filed under Rule 59 “shall not be ruled upon until the parties have had opportunity to be heard thereon.” Rule 59(g) mandates that, when a hearing is requested on a postjudgment motion, the hearing must be granted. See Staarup v. Staarup, 537 So.2d 56 (Ala.Civ.App.1988). However, in Kitchens v. Maye, 623 So.2d 1082 (Ala.1993), our supreme court held that although a trial court errs in not granting a hearing on a motion pursuant to Rule 59, Ala. R. Civ. P., such an error does not necessarily constitute reversible error. Rule 45, Ala. R.App. P., provides, in pertinent part:

“No judgment may be reversed or set aside ... for error as to any matter of pleading or procedure, unless in the opinion of the court to which the appeal is taken or application is made, after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected the substantial rights of the parties.”

It is harmless error if a trial court fails to hold a hearing in violation of Rule 59(g), “ ‘where there is either no probable merit in the grounds asserted in the motion, or where the appellate court resolves the issues presented therein, as a matter of law, adversely to the movant, by application of the same objective standard of review as that applied in the trial court.’ ” Kitchens, 623 So.2d at 1088-89 (quoting Greene v. Thompson, 554 So.2d 376, 381 (Ala.1989)).

In their postjudgment motion, the plaintiffs argued that the unpaid balance on the mortgage indebtedness was not a lawful charge as contemplated by § 6-5-253, Ala. Code 1975, and that the portion of the trial court’s judgment regarding the process of redemption was not specific enough with regard to how to accomplish redemption. We have addressed the issues raised by the plaintiffs in their postjudgment motion in the disposition of this appeal. Based on our review of the record and the trial court’s judgment, we cannot say that the trial court erred by denying the plaintiffs’ Rule 59 motion without an evidentiary hearing. See Kitchens v. Maye, supra.

AFFIRMED.

YATES, P.J., concurs.

PITTMAN, J., concurs in the result, without writing.

MURDOCK, J., dissents, with writing, which CRAWLEY, J., joins.

MURDOCK, Judge,

dissenting.

Section 6-5-253(a), Ala.Code 1975, begins by stating simply that a redemptioner of real estate must “pay or tender to the purchaser or his or her transferee the purchase price paid at the [foreclosure] sale.” (Emphasis added.) I believe this language is straightforward. See IMED Corp. v. Systems Engineering Associates Corp., 602 So.2d 344 (Ala.1992). I see no reason the Legislature would have chosen this unambiguous expression for the re-demptioner’s basic obligation if it had, in reality, intended to require the redemp-tioner in all cases to pay off the full amount of the mortgage debt that led to the foreclosure sale. If it had intended the latter, it easily could have said so.

The first paragraph of § 6 — 5—253(a)(4) goes on to provide that the redemptioner must, in addition, pay any other “lawful charges” in the form of

“[a]ny other valid lien or encumbrance paid or owned by [the foreclosure] purchaser or his or her transferee or if the redeeming party is a judgment creditor or junior mortgagee or any transferee thereof, then all recorded judgments, recorded mortgages and recorded liens having a higher priority in existence at the time of sale which are revived under Section 6 — 5—248(c)[, Ala.Code 1975].”

(Emphasis added.) If such “lawful charges” were intended to include the “balance due” on “the debt for which the property was sold [at foreclosure],” again, the Legislature could have said so. Instead, the Legislature spoke only of “other ... lien[s] or encumbrance[s]” in the first clause of the quoted paragraph, and limited the operation of the second clause to redemptions by judgment creditors and junior mortgagees (and their transferees) and to recorded judgments, mortgages, and liens having a higher priority.

There is only one provision in § 6-5-253 that specifically speaks to any obligation by a redemptioner to pay off the “balance due” on “the debt for which the property was sold” at foreclosure. That provision is the second paragraph of § 6-5-253(a)(4). That provision, however, conditions the obligation it imposes on “the redemption [being] made from a person who at the time of redemption owned the debt for which the property was sold.” (Emphasis added.) This condition was not met in the present case. See Estes v. Johnson, 234 Ala. 191, 174 So. 632 (1937) (holding under the predecessor of § 6-5-253(a)(4) that a redemptioner was not obligated to pay the balance of the mortgage debt not paid by the amount of the purchase price paid at foreclosure because the redemption was not “ ‘made from a person who at the time of redemption owned the debt for which the property was sold’ ”). See also Dicie v. Morris, 285 Ala. 650, 235 So.2d 796 (1970); Dawsey v. Kirven, 212 Ala. 652, 103 So. 866 (1925) (holding that, under the predecessor of § 6-5-253(a)(4), a person exercising redemption rights is required to pay the balance of the mortgage debt if that debt is owned at the time of redemption by the person from whom the redemption is made, even though such person acquired such balance after the foreclosure sale).

The main opinion relies upon Garrett v. Federal Land Bank of New Orleans, 239 Ala. 191, 194 So. 530 (1940). In Garrett, however, the Supreme Court explained that the mortgagor filed his complaint for redemption against both the purchaser at foreclosure and the purchaser’s vendee. Moreover, the purchaser at foreclosure, the Federal Land Bank, was a necessary party to the redemption action under the particular facts of that case because the bank continued to hold legal title to the property and an equitable interest therein as security for the purchase money that was still owed to it from its vendee. The Supreme Court therefore explained that

“[o]ur holding is that complainant cannot treat this case as one for redemption from the vendees of the purchaser alone. It seeks redemption from all the respondents; and the balance due on the mortgage debt, was owned by respondent Bank at time of suit brought; was, therefore, a lawful charge, and there was no error in the decree rendered in this regard.”

Garrett, 239 Ala. at 194, 194 So. at 532. Indeed, the Supreme Court

“conceded that if this property had been purchased at the foreclosure sale by the[] vendees, and [the vendees] were the sole parties respondent, they could not, after suit brought, acquire the unpaid balance on the mortgage debt, and thus impair the [mortgagor’s] statutory right of redemption by thus increasing the lawful charges.”

Garrett, 239 Ala. at 193, 194 So. at 531-32 (explaining that “[t]he equities of complainant when suit brought cannot be defeated pending the suit save by his own act or default”). See also Durr Drug Co. v. Acree, 241 Ala. 391, 396, 2 So.2d 903, 907 (1941) (holding that the “date of redemption” within a statute providing that the purchaser of land is entitled to all rents paid or accrued to date of redemption means the “date of the tender to redeem kept good”).

My understanding of the applicable provisions of § 6-5-253 is reinforced not only by the caselaw, but also by the provisions of § 6-5-248. In § 6-5-248(c), the Legislature, by negative implication, indicates that it did not intend for any balance due on the debt for which the property was sold to be a “lawful charge” under § 6-5-253(a)(4). That section provides that when any “judgment creditor or junior mortgagee” (or any transferee thereof) redeems the real estate, all “recorded judgments, ... mortgages and ... liens having a higher recorded priority in existence at the time of the [foreclosure] sale” are revived and “shall become lawful charges pursuant to Section 6-5-253(a)(4) to be paid off at redemption.” The mortgage debt for which the property was sold is not included in this provision.

The mortgage debt for which the property is sold at foreclosure, however, does fall within the category of mortgages and liens addressed in § 6-5-248(d). That section states:

“(d) When any debtor, mortgagor, their transferees, their respective spouses, children, heirs, or devisees redeem, all recorded judgments, recorded mortgages, and recorded liens in existence at the time of the sale, are revived against the real estate redeemed and against the redeeming party and further redemption by some party other than the mortgagor or debtor under this article is precluded.”

(Emphasis added.)

Conspicuously absent from § 6-5-248(d) is any provision, as there is in the immediately preceding § 6-5-248(c), that the mortgages addressed therein will all become “lawful charges.” As the Comment explains, in “the event the debtor or [related] parties redeem, the lien amounts described in subsection (d) are revived but are not ‘lawful charges’ pursuant to Section 6-5-253(a)(4).”

Contrary to the argument made by the foreclosure sale purchaser in the present case (Pitt) and his transferees (the Kel-leys), the mortgagors (the Nnaifes) will not reap a windfall from the result which I believe is dictated by our statutes and cases. Following the redemption, the mortgagor will continue to owe to the mortgagee the balance of the original mortgage debt not paid from the proceeds of the foreclosure sale, and that debt will continue to be secured by the mortgage on the property. Ala.Code 1975, § 6-5-248(d).

CRAWLEY, J., concurs.


author: CRAWLEY, Judge. YATES, Presiding Judge,

text:
    Arthur JOHNSON v. Clara JOHNSON.
    2020596.
    Court of Civil Appeals of Alabama.
    Dec. 19, 2003.
    David K. Hogg, Dothan, for appellant.
    Joel M. Nomberg, Dothan, for appellee.
   CRAWLEY, Judge.

Arthur Johnson (“the husband”) appeals from the trial court’s judgment divorcing him from Clara Johnson (“the wife”) and dividing the parties’ real property. The parties were married in January 1985. They separated in October 2001. After a trial, the trial court divorced the parties and awarded the wife three parcels of real property owned or coowned by the parties. The husband appeals.

When the parties married, the husband owned a house, referred to as the “Bunt Park house,” and the wife owned two houses, the “Hollywood, Florida house” and the “Opalocka house.” The parties jointly refinanced the Opalocka house in 1987. The parties pooled their money to pay for the construction of another house, known as the “Carver Ranches house,” on a lot that the wife had purchased before the parties’ marriage. The husband sold the Bunt Park house in 1993; the down payment paid by the purchaser of that house was used by the parties to finance the purchase of a house owned by the wife’s family that was facing foreclosure (“the Baker Hill house”). The Baker Hill house, according to the husband, is worth between $45,000 and $50,000. The wife deeded the Carver Ranches house to her three daughters in November 2000. During the marriage, the parties also bought a house in Cowarts, Alabama (“the Cowarts house”); that house, the martial residence, was valued by the parties at between $100,000 and $104,000, with an outstanding mortgage of $75,000. The husband had purchased a mobile home in Cowarts; he said that he had purchased it for his aunt with her funds. The husband co-owned a property known as the “Gordon house” with his daughter. The parties also owned some real estate in Barbour county; however, that property was sold before the divorce.

The trial court awarded the wife the Hollywood, Florida, house, the Opalocka house, and the Baker Hill house. The trial court awarded the husband the mobile home he argued was owned by his aunt and his interest in the Gordon house, which he co-owned with his daughter. The trial court ordered the Cowarts house sold and the proceeds divided equally.

The husband raises two issues on appeal. First, he argues that the trial court erred in allowing the wife to testify as to whether the husband infected her with a venereal disease during the marriage. The husband also argues that the trial court’s judgment must be reversed and the cause remanded for the trial court to take testimony on the value of the real estate properties before a determination of whether the division of the marital property was equitable can be made. The only properties assigned a value by the parties were the Cowarts house and the Baker Hill house.

The husband argues that the trial court erred by allowing the wife to testify that he had infected her with a venereal disease twice during their marriage. The wife testified that she had been treated twice for a venereal disease; she also stated that she had been faithful to her husband, having had sexual relations with only him during their marriage. All of the husband’s objections to this testimony, except one, came after the wife answered the questions posed to her regarding her infection with a venereal disease.

“It is well settled that an objection that comes after the witness’s answer is too late. See Crowne Invs., Inc. v. Reid, 740 So.2d 400, 408 (Ala.1999); Ford v. Thomas, 482 So.2d 1217, 1219 (Ala.Civ.App.1985).
“ ‘One cannot preserve error by objecting to a question after the witness has given a responsive answer. General Motors Corp. v. Johnston, 592 So.2d 1054 (Ala.1992). If the witness’s answer came too quickly for [the husband] to object, then [the husband’s] proper remedy would have been to make the belated objection and to make a companion motion to strike or exclude the question and answer. Green v. Standard Fire Ins. Co. of Alabama, 398 So.2d 671 (Ala.1981). [The husband] made no such motion.’

“Crowne Invs., 740 So.2d at 408.”

L.A.C. v. State Dep’t of Human Res., [Ms. 2020794, October 24, 2003]-So.2d-, - (Ala.Civ.App.2003). The only question on the issue of the wife’s venereal-disease infections to which there was a timely objection was rephrased even though the trial court overruled the objection; the husband did not object to the rephrased question. Accordingly, we will not consider the husband’s argument on this issue.

The husband also argues that we must reverse the trial court’s judgment and remand the case to the trial court for it to determine the value of the various parcels of real property at issue in this case. He cites Hamaker v. Hamaker, 57 Ala.App. 333, 328 So.2d 588 (Civ.App.1975), in support of his argument. In Hamaker, this court reversed a judgment of the trial court awarding the husband the parties’ jointly owned real estate and awarding the wife only $1,200 for her one-half interest in that property where the record contained no evidence of the value of the real estate. Hamaker, 57 Ala.App. at 339, 328 So.2d at 593. We held that “[t]here being no evidence to support the court’s [judgment] as to the value of appellant’s interest in the jointly owned real estate, it is in error.” Id. The Hamaker court cited Baggett v. Baggett, 47 Ala.App. 539, 258 So.2d 735 (Civ.App.1972), as authority for its reversal.

In Baggett, the husband and wife owned a 79-acre farm and a one-acre parcel of land upon which was situated the marital residence. Baggett, 47 Ala.App. at 541, 258 So.2d at 736. After a trial, the trial court awarded the husband the 79-acre farm and the one-acre parcel with the marital residence; the trial court awarded the wife $3,500 as the value of her rights in the one-acre parcel. Id. The opinion did not reveal the value of the 79-acre farm, and the only testimony concerning the value of the one-acre parcel and the marital residence was hearsay testimony indicating that a third party had told the husband that the house was worth between $8,000 and $8,500. 47 Ala.App. at 543, 258 So.2d at 738. This court reversed the award of both the 79-acre farm and the one-acre parcel to the husband. In Baggett, we also noted that the 79-acre farm was jointly owned and that, therefore, the wife should be permitted an equitable division of that property or should otherwise be compensated. 47 Ala.App. at 542-43, 258 So.2d at 738. We also held that the $3,500 award to the wife in extinguishment of her joint interest in the one-acre parcel and marital residence was not “shown by the evidence to be a fair and equitable sum.” Id. We ordered that the trial court either order a sale for division or “by proper evidence determine the fair and equitable value of the interest of [the wife] in the real property.” 47 Ala.App. at 543, 258 So.2d at 738.

Although we recognize that, in most cases, we will not reverse a trial court unless the appellant “presents] sufficient evidence in the record before this court to show an abuse of discretion by the trial court in dividing the marital estate,” J.N.H. v. N.T.H., 705 So.2d 448, 451 (Ala.Civ.App.1997), the present case suffers from the same affliction as both Hamaker and Baggett. That is, like the situation in those cases, in this case there is no way to determine whether the division of the jointly held real property is equitable because the value of the real estate, other than the value of the Cowarts house, which was ordered sold and the proceeds equally divided, and the value of the Baker Hill house, which was worth between $45,000 and $50,000, is unknown. Based on Ha-maker and Baggett, the husband has demonstrated error on the record' — the division of the real estate “is not shown by the evidence to be a fair and equitable” division. Baggett, 47 Ala.App. at 542-43, 258 So.2d at 737. The wife fails to distinguish either Hamaker or Baggett, and she does not advocate that we overrule those decisions. Therefore, we conclude that we must reverse the trial court’s division of real estate and remand the cause to the trial court for it to determine the value of the jointly owned real estate in accordance with Hamaker and Baggett.

In light of our reversal on the authority of Hamaker and Baggett, we do not address at this time the husband’s argument that the trial court’s property division is inequitable and fails to dispose of one parcel of the parties’ real estate.

Both parties’ requests for an attorney fee on appeal are denied.

REVERSED AND REMANDED WITH INSTRUCTIONS.

PITTMAN, J., concurs.

MURDOCK, J., concurs in the result, without writing.

YATES, P.J., dissents, with writing, which THOMPSON, J., joins.

YATES, Presiding Judge,

dissenting.

I would affirm the trial court in this instance; therefore, I respectfully dissent. The husband, as the appellant in this case, has the burden of “presenting sufficient evidence in the record before this court to show an abuse of discretion by the trial court in dividing the marital estate.” J.N.H. v. N.T.H., 705 So.2d 448, 451 (Ala.Civ.App.1997), citing Newman v. State, 623 So.2d 1171 (Ala.Civ.App.1993), and In re Coleman, 469 So.2d 638 (Ala.Civ.App.1985). The husband had the opportunity to offer evidence of the value of properties divided by the trial court. The trial court should not be held in error for the husband’s failure to present this evidence.

THOMPSON, J., concurs.

      . The husband’s brief lists the property of the parties. He lists both a "Hollywood, Florida house” and a "Carver Ranches house.” One of his arguments on appeal is that the trial court erred by failing to award the Carver Ranches house to either party in the divorce; he also argued that the trial court should not have awarded the wife the Hollywood, Florida house. The deed to which he refers when discussing the Hollywood, Florida house describes property in "Lot 8, Block 9, Carver Ranches.” The deed conveying one of the wife's houses to her three daughters refers to this same property. The husband's brief indicates that the wife conveyed both the Hollywood, Florida house and the Carver Ranches house to her daughters, and he refers to the same exhibit in the record — the deed mentioned above conveying the "Lot 8, Block 9, Carver Ranches” property. It is unclear whether the wife owned another house in Hollywood, Florida, or whether the two houses referred to in the husband’s brief are in fact the same house.


author: YATES, Presiding Judge.

text:
    Barry D. REAVES v. Margaret Elaine REAVES. Margaret Elaine Reaves v. Barry D. Reaves.
    2020394.
    Court of Civil Appeals of Alabama.
    Dec. 19, 2003.

      Joan-Marie Kettell of Kettell & Campbell, L.L.P., Huntsville, for appellant/cross-appellee.
    Jamie Logan of Warnes & Logan, Gun-tersville, for appellee/cross-appellant.
   YATES, Presiding Judge.

On February 7, 2002, the wife, Margaret Elaine Reaves, sued the husband, Barry D. Reaves, for a divorce. On October 3, 2002, the trial court entered a final judgment divorcing the parties. In its judgment, the trial court awarded the wife custody of the parties’ children. The trial court divided the parties’ retirement accounts as follows:

“10. [The wife] shall be entitled to her retirement account and her bank account. In addition thereto, [the wife] shall receive $24,000 from [the husband’s] 401k account and $25,000 from [the husband’s] retirement account with Huhtamaki.
“11. [The husband] shall have the remainder of his 401k account, the remainder of his retirement account through his employer, and his bank account.”

The court ordered the husband to pay the wife $450 per month in periodic alimony. On October 11, 2002, pursuant to Rule 59, Ala. R. Civ. P., the husband moved to alter or amend the judgment, or, in the alternative, for a new trial. On December 23, 2002, the trial court entered an order on the case action summary sheet denying the husband’s motion. On January 15, 2003, the trial court, on its own motion, entered an order purporting to amend the judgment to award the wife no more than 50% of the husband’s retirement accounts as of the date of separation. However, that order was a nullity because the trial court no longer had the authority to “revisit its own order denying a Rule 59 postjudgment motion.” Paris v. Estate of Williams, 769 So.2d 321, 323 (Ala.Civ.App.2000)(dismiss-ing an appeal where the trial court purported to enter an order setting aside its denial of the Rule 59 motion). See also Ex parte Allstate Life Ins. Co., 741 So.2d 1066 (Ala.1999)(holding that after a trial court denies a Rule 59 motion, the trial court loses jurisdiction over the case). On February 3, 2003, the- husband filed his notice of appeal, contending that the trial court had erred in its award of custody, in its award of more than 50% of his retirement accounts to the wife, and in its award of periodic alimony. On February 13, 2003, the wife cross-appealed, arguing that the trial court’s judgment failed to include provisions for filing a Qualified Domestic Relations Order (“QDRO”).

While these appeals were pending, the wife moved this court for leave to file a Rule 60(b), Ala. R. Civ. P., motion for relief from the judgment, which this court granted on February 27, 2003. On May 19, 2003, the trial court entered an order granting the wife’s Rule 60(b) motion. We note that the wife’s motion seeking relief from the judgment is not included in the record, although the trial court’s order granting such relief was included in the record pursuant to the trial court’s order that the record be supplemented.

In its grant of relief from the judgment, the trial court ordered:

“1. Alabama law does not allow more than 50% of a retirement account of one party be awarded to another in a divorce. This Court was well aware of this fact at the time of rendering the judgment of divorce. It was the intent of the Court at the time the judgment was rendered to award [the wife] 50% of [the husband’s] retirement account, no more. The calculations of the Court were obviously in error in the judgment and the Court mistakenly awarded more.
“2. The Court grants relief from the judgment and corrects such error to reflect that the Court awards [the wife] 50% of [the husband’s] 401K and retirement accounts (balance as of the date of the separation).
“3. The Court retains jurisdiction over the issue of division of the retirement accounts for the purpose of issuing a [QDRO] that complies with the requirements of the retirement account and 401K administrators, as well as the tax laws.
“4. The Court finds there is no just reason for delay and that all other provisions of the judgment are final and directs entry of the judgment as final.
“5. The Court finds the supersedeas bond is adequate in this case and denies [the wife’s] request to increase the bond.
“6. The Court directs the clerk to supplement the record on appeal with this order.”

In his brief to this court, the husband argues that the trial court erred in its award of periodic alimony. He also argues that the trial court erred in its May 19, 2003, order by requiring that the retirement benefits be divided as of the date of the parties’ separation. The wife argues that the trial court’s order of May 19, 2003, entering a QDRO, makes her cross-appeal moot.

The husband’s argument on appeal regarding retirement benefits relates to the amended judgment entered on May 19, 2003, wherein the trial court divided the retirement benefits as of the date of separation. The trial court’s order granting the wife’s Rule 60(b) motion is an appealable order creating a separate and distinct right to appeal to be pursued in the appellate court. However, no appeal has been filed from the order entered on May 19, 2003.

In Oliver v. Home Indemnity Co., 470 F.2d 329 (5th Cir.1972), several construction workers filed personal-injury lawsuits against the owner of the manufacturing plant where they had been working. The owner of the plant filed a third-party action against the contractor who employed the construction workers, seeking indemnification. The trial court entered a final judgment in April 1972, concluding that the owner was entitled to indemnification from the contractor. After the time for amending final judgments had elapsed, but before the time had expired for filing a notice of appeal, the contractor filed a motion for reconsideration, alleging that recent Texas decisions had changed the law applicable to indemnification. The trial court determined that it could entertain the motion and amend its final judgment pursuant to Rule 60(b), Fed.R.Civ.P. Subsequently, in August 1972, the trial court reversed its indemnity ruling and entered an amended judgment. The owner then filed a motion for a new trial. The court denied the owner’s motion and restated its amended judgment in September 1972.

After the original judgment entered in April had been filed, the owner filed a notice of appeal before the contractor filed his motion for reconsideration. The owner also filed another notice of appeal from the trial court’s September judgment. The owner was unsure which appeal he was to pursue.

The appellate court in Oliver stated that if it was improper for the trial court to entertain the contractor’s motion for reconsideration, then the amended judgments entered in August and September were improper and the April judgment would be the only one subject to appeal. However, the appellate court in Oliver determined that if the reconsideration was permissible under Rule 60(b), then the original judgment was moot. The appellate court in Oliver held that it was permissible for the trial court to amend its April judgment pursuant to Rule 60(b).

The United States Court of Appeals for the Fifth Circuit in Chavez v. Balesh, 704 F.2d 774 (5th Cir.1983), discussed an appeal from the grant of a Rule 60(b) motion. The plaintiff in Chavez sued her employer, alleging that he failed to pay her both minimum and overtime wages. After a nonjury trial, the trial court issued its findings of facts and conclusions of law. One of those findings was that the plaintiff had been underpaid by $2,000, which represented unpaid minimum wages. The trial court also found that the plaintiff was entitled to $2,000 in liquidated damages and a $750 attorney fee. The trial court signed a judgment typed on a separate piece of paper from the findings of fact and conclusions of law. The judgment awarded the plaintiff $2,000 plus an attorney fee of $750. The judgment was filed in the clerk’s office in June 1982. The employer did not appeal.

In September 1982, the trial court in Chavez entered a corrected judgment pursuant to Rule 60, Fed.R.Civ.P., awarding the plaintiff an additional $2,000 as liquidated damages, “ie., the earlier judgment was corrected to reflect $2,000 for unpaid minimum wages, $2,000 as liquidated damages, and $750 in attorney’s fees.” 704 F.2d at 775. The trial court did not specify whether its action in correcting the judgment was pursuant to subsection (a) or (b) of Rule 60. The employer filed a timely notice of appeal from the corrected judgment.

The Fifth Circuit Court of Appeals concluded that the corrected judgment corrected a mere clerical oversight on the part of the trial court because the court’s findings of fact entered the same day as the original judgment included the $2,000 for liquidated damages and because the original judgment, filed separately, began by stating that the judgment was being entered in accordance with the findings of fact and conclusions of law. Even though the appellate court concluded that the trial court’s actions could be upheld on the basis of Rule 60(a), the court went on to discuss Rule 60(b), noting that it was unclear whether the trial court corrected the judgment on its own or in response to a motion by the plaintiff. The Chavez court stated:

“Although an appeal from the denial of a Rule 60(b) motion does not bring up the underlying judgment for review, Browder v. Director, Dep’t of Corrections, 434 U.S. 257, 263 n. 7, 98 S.Ct. 556, 560 n. 7, 54 L.Ed.2d 521 (1978), an appeal from the grant of such a motion may. ‘[Wjhere the order granting the 60(b) motion leaves nothing further to be decided at the district court level, then on general principles of finality the order is final.’ 7 [J. Moore,] Moore’s [Federal Practice] § 60.30[3] at 431 [ (2d ed.1982) ]. Here the corrected judgment entered by the district court left ‘nothing further to be decided’ and was therefore a final order. Moreover, because the corrected judgment incorporated all aspects of the original one, then [the employee’s notice of appeal from the corrected judgment allowed him to challenge all its aspects, including the underlying merits. It therefore follows that [the employer] suffered no prejudice from the grant of 60(b) relief.”

704 F.2d at 777-78.

In the present case, the husband’s appeal filed on February 2, 2003, became moot with regard to the issue of the division of the retirement benefits when the trial court granted the wife relief from the original judgment pursuant to Rule 60(b) and amended its order regarding the division of the retirement benefits. This court cannot address whether the trial court erred in awarding the wife retirement benefits from the date of separation because no appeal has been filed from the amended judgment of May 19, 2003.

The husband’s brief also raises the issue of periodic alimony. We note that the trial court’s amended judgment of May 19, 2003, merely reinstated that original judgment with regard to the periodic-alimony award, without modifying the award. Accordingly, this court can address the merits of the trial court’s award of periodic alimony. Our supreme court has stated:

“ ‘In reviewing the [circuit] court’s judgment in a divorce case presented ore terms, we will presume the judgment to be correct....’ Ex parte Jackson, 567 So.2d 867, 868 (Ala.1990). Furthermore, rulings on such matters as child support, alimony, division of marital property, and payment of marital debts are within the discretion of the circuit court. See id. Thus, a circuit court’s divorce judgment, including its rulings on these matters, will not be reversed unless it is so unsupported by the evidence that it is plainly and palpably wrong and a clear abuse of discretion. See Ex parte Smith, 673 So.2d 420, 421 (Ala.1995); Ex parte Jackson, 567 So.2d at 868; see also Hartselle v. Hartselle, 475 So.2d 860, 861 (Ala.Civ.App.1985)(‘The cases are legion which hold that matters in divorce cases, such as the division of property and child custody, are subjects that fall within the sound judicial discretion of the [circuit] court.’). Moreover, an appellate court reviewing a circuit court’s judgment in a divorce action is not to substitute its judgment of the facts for that of the circuit court. See Ex parte Smith, 673 So.2d at 422. Instead, the appellate court is ‘simply to determine if there was sufficient evidence before the circuit court to support its decision against a charge of arbitrariness and abuse of discretion.’ Id.”

Ex parte Elliott, 782 So.2d 308, 311 (Ala.2000). When determining an alimony award and dividing marital property, the trial court should consider the following factors: the earning abilities of the parties; the future prospects of the parties; their respective ages and health; the duration of the marriage; the parties’ station in life; the items of marital property and their sources, values, and types; and the conduct of the parties in relation to the marriage. Willing v. Willing, 655 So.2d 1064 (Ala.Civ.App.1995).

The trial court ordered the husband to pay $450 per month in alimony. The husband contends that the alimony award is crippling and forces him to operate at a $547.75 shortfall each month. The husband has a gross monthly income of $6,140. In his brief, the husband estimated his monthly expenses to be $2,946.75. However, the evidence presented at trial indicates that his average monthly expenses were approximately $2,596. Those expenses also included an amount for entertainment, charges at a Lowe’s home-improvement store, and $120 per month in country-club fees. Also, the husband received a bonus of $6,500, but he did not include that amount in his income. Rule 32, Ala. R. Jud. Admin., defines gross income as including income from bonuses. Accordingly, we cannot say that the trial court abused its discretion in the $450-per-month alimony award.

The wife’s request for an attorney fee on appeal is granted in the amount of $1,000.

AFFIRMED.

THOMPSON, PITTMAN, and MURDOCK, JJ., concur.

CRAWLEY, J., concurs in the result, without writing.

      . The wife also sought leave to file a motion to review the amount of the supersedeas bond.

      . Although neither party argues that the trial court's January 15, 2003, or May 19, 2003, orders merely corrected a clerical error in its original judgment, we note that the changes made by the trial court were of such a substantial nature that Rule 60(a), Ala. R. Civ. P., providing for relief from a clerical mistake in a judgment or order, would not apply. In McGiboney v. McGiboney, 679 So.2d 1066, 1067 (Ala.Civ.App.1995), the trial court originally ordered the husband to pay the wife 40% of the present value of his two retirement accounts as alimony in gross and found that the value of those accounts was " '$21,387.39 and $33,878.59, respectively, or a gross value of $55,265.98' — the Wife’s share of which would be $22,106.39.' ” The husband filed a postjudgment motion, requesting, among other things, that the trial court reconsider its award of alimony in gross to the wife. The motion was deemed denied by operation of law. The wife filed a motion for garnishment, alleging that the husband had failed to satisfy the award of alimony in gross. The husband moved to stay the proceedings while his employer transferred funds into the wife's name in order to avoid tax consequences. The trial court granted the motion to stay the garnishment proceedings. The husband then moved to amend the judgment, requesting that the trial court enter a QDRO so that alimony in gross from the proceeds of the retirement plans could be transferred to the wife at a future date. The husband filed a second motion to amend the final judgment, suggesting that, as result of a clerical error, the trial court had failed to provide for a QDRO. Subsequently, the trial court entered an order providing for a QDRO, under which the wife would not be entitled to her share of the retirement plans until the husband reached retirement age and under which she would receive a portion of the monthly proceeds of the plan rather than a lump sum of the proceeds of the retirement plans. This court held that a Rule 60(a) motion "cannot be used to enlarge or modify a judgment or to make a judgment say something other than what was originally said.... If the mistake involves an exercise of judicial discretion, any correction is beyond the scope of Rule 60(a) and should properly be effected under Rule 59(e) or Rule 60(b).” 679 So.2d at 1068. If the trial court in the present case made a mistake, it was not a clerical error, such as a mistake in transcription, but was a mistake of fact, i.e., how to divide the retirement funds.

      . We recognize that an order granting relief from a judgment is considered an interlocutory order because further proceedings are contemplated by the trial court, and therefore, such orders are generally not appeal-able. Tompkins v. Baker, 745 So.2d 283 (Ala.Civ.App.1999).
      " 'It is only in some situations that an order granting relief under Rule 60(b) is treated as a final judgment for purposes of appeal. See Sanders v. Blue Cross-Blue Shield of Alabama, Inc., 368 So.2d 8 (Ala.1979). But these situations]) where the grant of a Rule 60(b) motion leaves no proceedings to be carried out in the court granting the motion,] are the exception rather than the rule.’ ”

        Ex parte Alfa Mut. Gen. Ins. Co., 681 So.2d 1047, 1049 n. 2 (Ala.1996), quoting Ex parte Short, 434 So.2d 728, 730 (Ala.1983). In the present case, there were no further proceedings to be carried out after the trial court granted the Rule 60(b) motion.


text:
    Keith MARTIN and Keith Martin Construction Company, Inc. v. Jeff P. CRUMPTON and Ashley Crumpton.
    2020820.
    Court of Civil Appeals of Alabama.
    Dec. 19, 2003.

      Alfred H. Perkins, Jr., of Starnes & Atchison, LLP, Birmingham, for appellants.
    Vonda Felton of Wallace, Ellis, Fowler & Head, Columbiana, for appellees.
   THOMPSON, Judge.

Keith Martin and Keith Martin Construction Company, Inc. (hereinafter collectively referred to as “Martin”), appeal from the denial of their motion to set aside a default judgment ordering them to pay Jeff P. Crumpton and Ashley Crumpton damages totaling $33,000.

On March 15, 2002, the Crumptons sued Martin seeking damages for an alleged breach of a contract. The trial court entered an order dated October 1, 2002, stating that the parties had 30 days to act on the case before it would be dismissed. On November 1, 2002, the Crumptons filed a motion for a default judgment, alleging that Martin had failed to answer or otherwise file pleadings in the case. On November 5, 2002, the trial court clerk entered a default against Martin. On December 17, 2002, the trial court held a hearing to elicit testimony regarding damages. Martin failed to appear at that hearing, and on January 3, 2003, the trial court entered a default judgment against Martin in the amount of $33,000.

On January 22, 2003, Martin filed a motion, pursuant to Rule 55, Ala. R. Civ. P., seeking to set aside the January 3, 2003, default judgment. The trial court held a hearing and denied the motion. Martin timely appealed.

The record reveals the following. Martin entered into a contract with the Crumptons for the construction of a house. .Martin Construction Company completed construction of the Crumptons’ house, and the parties executed a contract regarding the sale of the house on October 20, 2000. In October 2000, Jeff Crumpton submitted a “punch list” of items regarding the Crumptons’ house that he requested be repaired or corrected. In an April 11, 2003, affidavit submitted in support of the Rule 55 motion, Keith Martin stated that in the weeks following his receipt of the punch list from Jeff Crumpton, he was informed by subcontractors that the items on the punch list had been corrected.

Martin also stated in his affidavit that the Crumptons had informed him in 2001 that some items from the punch list had not been corrected. Martin wrote Jeff Crumpton a letter on January 3, 2002, in which he indicated his willingness to “make things right.” Shortly thereafter, attorney Vonda Felton notified Martin that she was representing the Crumptons. On January 18, 2002, Martin consented to completing the items on the punch list promptly. Thereafter, Martin agreed that the Crumptons’ home warranty would be extended for an additional 60 days.

On March 15, 2002, the Crumptons filed an action against Martin. Martin testified in his affidavit that upon receiving notice of the action, he communicated with Felton regarding the lawsuit and the requested repairs. On April 15, 2002, Martin wrote Felton a letter in which he contended that most of the requested work had been done, and he asked Felton to let him know if there was anything else that he needed to do.

On April 26, 2002, Felton wrote Martin and acknowledged that many of the punch list items had been completed. Felton advised Martin that she would be able to “dismiss [the] matter” if the remaining repairs were made. Felton also told Martin that if it became necessary for Martin to file an answer, she would let him know. Felton stated in the letter that she might file for a default judgment if the court notified her that the case might be dismissed for want of prosecution. Felton wrote, “we will have a few days to get together with the Court to make sure that your rights are protected and that the case is not dismissed.” Martin never filed an answer to the lawsuit. In his April 11, 2003, affidavit, Martin stated that he believed the repairs were being completed and that there was no need to file an answer.

On May 17, 2002, Felton wrote Martin and stated that a few items on the punch list had yet to be completed. Felton stated that because she had not received any notice from the trial court that she needed to take action, she would “continue to let things ride for [Martin] to be able to complete the projects.” In the May 17, 2002, letter, Felton stated that “if I do receive notice from the clerk’s office or the judge that I must file a default, due to the fact that you have not filed an answer, I will notify you in writing before I have to do that.” In his April 11, 2003, affidavit, Martin testified that he understood from that May 17, 2002, communication from Felton that he “could no longer” file an answer in the lawsuit; Martin did not explain the basis for that belief. Martin also stated that he thought the lawsuit would soon be dismissed because “nearly all the requested repairs had been completed.”

On August 29, 2002, Martin received a letter from Felton stating that there still remained items to be completed at the Crumptons’ home. In addition, Felton notified Martin that she was going to file for a default judgment “on or about” September 30, 2002, if he or Martin Construction Company had not completed the remaining items on the punch list by then. Martin testified in his affidavit that he contacted Jeff Crumpton to determine what items were still incomplete and that as of September 26, 2002, Jeff Crumpton had informed .him of only three items that were incomplete: 1) the bottom of the vanity cabinet in an upstairs bathroom, 2) a leak in the retaining wall where it met the garage at the basement, and 3) water drainage at the end of the driveway. Martin testified in his affidavit that he spoke with Jeff Crumpton and that Crumpton agreed to delay the repair of the vanity cabinet bottom and that the vanity was repaired in late December 2002 or early January 2003. Martin also testified in his affidavit that the driveway was repaired by October 9, 2002, and that the repair to the retaining wall was completed on December 9, 2002.

On November 1, 2002, the Crumptons moved for a default judgment. On the same day, Felton wrote Martin to advise him that she had received notice from the trial court that, unless she moved for a default judgment, the case would be dismissed and that therefore she had “filed an application for entry of default.” In that letter, Felton stated that if the outstanding items were completed before a final damages hearing on the default, she would be happy to request that the court set aside the default judgment.

On December 17, 2002, the trial court held a hearing to receive testimony regarding damages. The trial court’s case action summary indicates that the hearing was set for December 17, 2002, and that notices were mailed to all parties. Martin testified in his affidavit that he did not receive notice of the December 17, 2002, hearing. Martin does not contend on appeal that he did not receive the motion for a default judgment or that he did not receive the letter notifying him that the motion for a default judgment had been filed.

At the December 17, 2002, hearing, Jeff Crumpton testified that while most of the items on the punch list were completed, “it looks like it is possible” that the front steps are beginning to separate from the house. Jeff Crumpton also testified regarding “some flooding problems” in the basement. Jeff Crumpton testified that repairing the steps would cost $3,000 and that repairing the flooding problem “could be upwards of $25,000 or $30,000, depending on what actually has to be done.” In his affidavit, Martin testified that the approximate cost to replace the steps and to repair the leak in the retaining wall, which he contends caused the flooding, would be no more than $1,500.

On appeal, Martin contends that the trial court should have granted his Rule 55, Ala. R. Civ. P., motion and set aside the default judgment; he contends that the trial court should decide the case on its merits. “The applicable standard of review in appeals stemming from a trial court’s granting or denying a motion to set aside a default judgment is whether the trial court’s decision constituted an abuse of discretion.” Kirtland v. Fort Morgan Auth. Sewer Serv., Inc., 524 So.2d 600, 603 (Ala.1988). Our courts have construed Rule 55(c) as contemplating a liberal exercise of a trial court’s discretion in favor of setting aside default judgments. Ex parte Illinois Cent. Gulf R.R., 514 So.2d 1283 (Ala.1987). Our supreme court has held that the trial court’s use of discretionary authority should be resolved in favor of the defaulting party where there is doubt as to the propriety of the default judgment. Johnson v. Moore, 514 So.2d 1343 (Ala.1987). Our supreme court has also established guidelines to assist a trial judge in exercising his discretion.

“[A] trial court’s broad discretionary authority under Rule 55(c) should not be exercised without considering the following three factors: 1) whether the defendant has a meritorious defense; 2) whether the plaintiff will be unfairly prejudiced if the default judgment is set aside; and 3) whether the default judgment was a result of the defendant’s own culpable conduct.”

Kirtland, 524 So.2d at 605.

The Crumptons do not dispute that Martin has meritorious defenses or that the Crumptons’ would not be unduly prejudiced by setting aside the default judgment. Rather, they argue on appeal that the trial court properly denied Martin’s motion to set aside the default judgment because the default judgment was entered due to Martin’s own culpable conduct. Martin asserts that he relied on Felton’s statements that, he contends, implied that there was no need for him to answer the Crumptons’ complaint because Felton would protect his rights and inform him if he needed to answer. He then later believed that he could not answer due to Felton’s May 17, 2002, letter stating that she may have to file default “due to the fact that [Martin] ha[d] not filed an answer.” Martin asserts that he believed the lawsuit would be dismissed because nearly all of the requested repairs had been completed by the time the default judgment was entered. Therefore, Martin states that his conduct in failing to respond to the action was not culpable. The Crumptons contend that Felton never undertook to protect Martin’s rights and that Martin’s failure to file an answer amounted to culpable conduct.

Our courts have said that “[e]on-duct committed willfully or in bad faith constitutes culpable conduct for purposes of determining whether a default judgment should be set aside.” Leventhal v. Harrelson, 723 So.2d 566, 570 (Ala.1998). Such conduct is “ ‘characterized by incessant and flagrant disrespect for court rules, deliberate and knowing disregard for judicial authority, or intentional nonrespon-siveness.’ ” Sawyer v. Perkins, 717 So.2d 432 (Ala.Civ.App.1998)(quoting Kirtland, 524 So.2d at 608)). Negligence by itself is insufficient to establish culpable conduct warranting denial of a motion to set aside default judgment. Sawyer, 717 So.2d at 434. A defaulting party’s “reasonable explanation for inaction and non-compliance may preclude a finding of culpability.” Kirtland, 524 So.2d at 608.

In his affidavit, Martin states that he did not believe that he needed to file an answer to the Crumptons’ complaint because in an April 26, 2002, letter, Felton stated “the Court has not given me [any] indication that I need to file for [a] default or that an answer needs to be filed.” Felton continued, “I will then let both you and Mr. Crumpton know that either an answer will need to be filed on your behalf or I will need to file for [a] default.” In the April 26, 2002, letter Felton also stated that if an answer needed to be filed on Martin’s behalf, “we will have a few days to get together with the court to make sure that your rights are protected and that the case is not dismissed.” Martin testified in his affidavit that he began completing the projects on the punch list and that he believed Felton would let him know if he needed to file an answer. Martin also testified in his affidavit that he kept in contact with the Crumptons and Felton regarding the progress of the work at the Crumptons’ home.

On May 17, 2002, Felton wrote Martin a letter stating that while “many of the projects had been completed,” there were a “few outstanding items remaining.” In her letter, Felton stated that she would prepare a statement of dismissal if the projects were completed before she received notice from the trial court clerk’s office that she must file for a default. In her May 17, 2002, letter, Felton wrote, “If I do receive notice from the Clerk’s Office or the Judge that I must file a default, due to the fact that you have not filed an answer, I will notify you in writing before I am forced to do that.” Martin testified in his affidavit that after receiving the May 17, 2002, letter from Felton, he believed he could no longer file an answer in the matter. Martin stated that he also believed that the case would “soon be dismissed because nearly all the requested repairs had been completed.”

On August 29, 2002, Felton wrote Martin a letter and stated that there were still outstanding items to be completed at the Crumptons’ house and that she was going to file for a default by September 30, 2002, if the requested work was not completed by then. Martin testified that he contacted Jeff Crumpton and that Crumpton informed him of three items that needed to be addressed: 1) the bottom of a vanity cabinet in an upstairs bathroom, 2) a leak in the retaining wall where it meets the garage at the basement, and 3) water drainage from the driveway.

Martin testified in his affidavit that he took a plumbing subcontractor with him to meet Jeff Crumpton twice to look at the upstairs vanity cabinet. He testified that Crumpton agreed to delay the repair until the subcontractor worked at a home requiring similar material to the material used in the Crumpton home in an effort to cut costs. Martin testified in his affidavit that the vanity cabinet was replaced in late December 2002 or early January 2003.

In a September 26, 2002, letter to Fel-ton, Martin explained that the retaining wall could not be repaired until there was dry weather. Martin testified in his affidavit that the retaining wall had been repaired on December 9, 2002. Martin attached an invoice to his motion to set aside the default judgment showing that he was billed $450 for the repairs to the retaining wall made on December 9, 2002. Martin further testified in his affidavit that after the retaining wall was repaired he had two telephone conversations with Jeff Crump-ton in which Crumpton stated that the repair work had solved the problem with the retaining wall.

Martin testified in his affidavit that the driveway drainage had been repaired by October 9, 2002, and Martin submitted an invoice for that work with his motion to set aside the default judgment. Martin stated in his affidavit that he did not receive any indication that the repair was ineffective.

On November 1, 2002, the Crumptons filed a motion for a default judgment. That same day, Felton wrote Martin and stated that “Jeff [Crumpton] says there are still items that need to be completed. If these items are completed before the court sets this matter for a final hearing on the default, I would be happy to set aside the default.” The court set a hearing on the motion for a default judgment for December 17, 2002. Martin testified in his April 11, 2003, affidavit that of the three items Crumpton complained of, two of them were completed by the December 17, 2002, default hearing, and the last one, the vanity cabinet, was completed shortly thereafter with the approval of Jeff Crumpton.

At the default hearing, Jeff Crumpton testified that “it looks like it is possible” that the front steps were beginning to separate from the house. Martin testified in his affidavit that the front steps were repaired in April 2001 and that, because Jeff Crumpton believed a hairline fracture meant that the steps were separating, Martin had the steps completely rebuilt again in September 2002. Martin stated in his April 11, 2003, affidavit that “Mr. Crumpton has not informed me that the steps have re-separated or that there are any other problems with the steps.”

Jeff Crumpton also testified at the December 17, 2002, default hearing that there were “flooding problems” in the basement due to the leak in the retaining wall. Martin testified in his affidavit that he repaired the retaining wall on December 9, 2002, and that Jeff Crumpton had twice stated that the repair work had solved the problem.

Martin also testified in his affidavit that he did not receive notice from the court or Felton that a hearing was scheduled for December 17, 2002. The trial court’s case action summary sheet indicates that notices were mailed to all parties.

A trial court must balance two competing interests associated with the entry of a default judgment — “judicial economy and the defendant’s right to defend on the merits.” Sampson v. Cansler, 726 So.2d 632, 633 (Ala.1998). Our supreme court has held that a trial court must presume that cases should be decided on the merits whenever practicable to do so. Sampson, 726 So.2d at 633. “The Alabama Constitution and our past opinions construing the default judgment rule support the conclusion that the interest in preserving a litigant’s right to a trial on the merits is paramount and, therefore, outweighs the interest of promoting judicial economy.” Kirtland, 524 So.2d at 604.

In this case, Martin took steps to ensure that the items on the Crumptons’ punch list were repaired. When he became aware of three remaining items, Martin repaired two of them before the December 17, 2002, hearing, and Martin contends that Jeff Crumpton agreed to allow him to repair the third item in late December or early January. It is unclear from the record whether Felton or the Crumptons ever alerted Martin to the possible separation of the front steps or to the leak in the retaining wall after Martin repaired it on December 9, 2002. Felton specifically stated that she would “be happy to set aside the default [judgment]” if Martin completed the repairs to the items listed on the punch list.

The Crumptons were awarded $33,000 based on Jeff Crumpton’s testimony at the default hearing. Jeff Crumpton did not testify that any contractors or other repair workers had provided an estimate as to the costs of the repairs. Martin testified in his affidavit that both the steps and the retaining wall could be repaired for less than $1,500.

Our supreme court has stated that “[rjeasonable explanations for defaults, such as attorney neglect and liability insurance company neglect attributable to innocent inadvertence, militate in favor of a finding of an absence of culpability and provide a basis for setting aside a default judgment.” Sanders v. Weaver, 583 So.2d 1326 (Ala.1991) (citations omitted)(holding that attorney’s failure to timely respond to summons and complaint due to his absence from the office for personal problems was negligent, not culpable, conduct for purposes of setting aside default judgment).

Given the facts of this case, we conclude that Martin presented to the trial court a “reasonable explanation for [his] inaction” in failing to answer the Crumptons’ complaint or to appear at the default hearing. Kirtland, 524 So.2d at 608. The record on appeal indicates that Martin has a meritorious defense to the Crumptons’ claims, and the Crumptons have not presented evidence that they would be unduly prejudiced by a trial on the merits. We reverse the trial court’s judgment denying Martin’s Rule 55(c) motion, and we remand the cause for the trial court to set aside the default judgment and for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . The record on appeal does not indicate whether the steps were listed on the punch list.


author: THOMPSON, Judge. PITTMAN, Judge,

text:
    H.E.T. v. STATE of Alabama ex rel. C.D.L.
    2020890.
    Court of Civil Appeals of Alabama.
    Dec. 19, 2003.

      Barre C. Dumas of Dumas & McPhail, L.L.C., Mobile, for appellant.
    William H.- Pryor, Jr., atty. gen., and J. Coleman Campbell, deputy atty. gen., and Jennifer M. Bush, asst. atty. gen., Department of Human Resources, for appellee.
   THOMPSON, Judge.

This is an appeal from the denial of a postjudgment motion filed pursuant to Rule 60(b), Ala. R. Civ. P.

On June 7, 1988, C.D.L., the mother, filed a complaint in the Juvenile Court of Mobile County (“the juvenile court”) seeking to have H.E.T. adjudicated the father of J.J. (“the child”) and to establish his child-support obligation. The child was born on March 3, 1988; the mother and H.E.T. never married. H.E.T. admitted paternity of the child on August 8, 1988, and the juvenile court entered a judgment on that same date adjudicating his paternity. Also in that judgment, the juvenile court ordered H.E.T. to pay $25 per week in child support.

Subsequently, H.E.T. moved from Alabama to Mississippi. On February 15, 1995, the State of Alabama, on behalf of the mother, filed a motion in the juvenile court seeking to have H.E.T. held in contempt for nonpayment of child support. Following a hearing, at which H.E.T. failed to appear, the juvenile court found H.E.T. to be in contempt and ordered him to pay child support, a child-support arrearage, and interest on the arrearage.

On October 9, 1996, the State filed an interstate-support petition in the Chancery Court of Hinds County, Mississippi (“the Mississippi court”), pursuant to the Uniform Reciprocal Enforcement of Support Act, § 30-4-80 et seq., Ala.Code 1975, seeking to collect a child-support arrear-age on behalf of the mother. The Mississippi court ordered genetic testing of H.E.T. and the child, the results of which indicated that H.E.T. was not the biological father of the child. On March 4, 1998, the Mississippi court, based on the results of the genetic testing, dismissed the State’s interstate-support petition with prejudice. In its order, the Mississippi court also noted that “it appeared that [the mother] [had] committed a fraud upon the [juvenile court].”

On November 24, 1998, H.E.T. filed a “Motion to Alter, Amend or Vacate” the August 8, 1988, order of the juvenile court that had adjudicated him the father of the child. In his motion, H.E.T. requested that the juvenile court vacate its August 8, 1988, judgment based on the March 4, 1998, order of the Mississippi court; H.E.T. alleged in his motion that “[the mother] was determined [by the Mississippi court] to have been the perpetrator of a fraud upon the Court in asserting that [H.E.T.] was the father of [the] child.” The juvenile court treated the November 24, 1998, motion as a Rule 60(b), Ala. R. Civ. P., motion for relief from a final judgment. See Ex parte Alfa Mut. Gen. Ins. Co., 684 So.2d 1281 (Ala.1996) (holding that the character of a pleading is determined and interpreted from its substance and not from its title).

On August 21, 1998, the State filed a response to H.E.T.’s postjudgment motion in which it argued, among other things, that H.E.T. did not meet any of the criteria for relief pursuant to Rule 60(b), Ala. R. Civ. P. The juvenile court held a hearing at which it received ore tenus evidence. On January 12, 1999, the juvenile court denied H.E.T.’s Rule 60(b) motion based on the doctrine of res judicata and on H.E.T.’s failure to prove the fraud he had alleged in his motion.

On February 24, 1999, well beyond the 14 days allowed by Rule 28(c), Ala. R. Juv. P., to appeal a judgment of the juvenile court, H.E.T. filed a notice of appeal to this court, appealing the denial of his Rule 60(b) motion. On that same date, the clerk for the Circuit Court of Mobile County (“the circuit court”) docketed H.E.T.’s appeal from the juvenile court as an appeal to the circuit court for de novo review. The case number assigned to that purported appeal was DR-99-500423. The record does not contain a motion filed on behalf of H.E.T. for an extension of the time to file an appeal. See Rule 77(d), Ala. R. Civ. P. (allowing for an extension of the time to file an appeal from the date of the entry of the judgment). However, on March 25, 1999, the juvenile court, finding reason to doubt that H.E.T. had received a copy of its January 12, 1999, judgment, entered an order purporting to grant H.E.T. a 14-day extension of time to file an appeal “from the date of [the March 25, 1999] order.” Although this appeal would otherwise appear to be untimely under a proper application of Rule 77(d), Ala. R. Civ. P., our supreme court has held that where a party does not oppose before the lower court another party’s Rule 77(d) motion, the appellate courts may not consider the jurisdictional issue of timeliness. Ex parte S.W.T., 782 So.2d 766 (Ala.2000). This court is bound by the supreme court’s decision in S.W.T.; therefore, we consider this appeal as being timely.

On June 4, 1999, the circuit court entered an order remanding the case, designated in the order as case number “DR-1999-600423, CS-88-5765,” to the “Department of Investigation and Recovery for hearing, if appropriate, by the [juvenile court] Judge.” By the time the case was remanded by the circuit court, a new judge was presiding in the juvenile court. Neither the parties nor the juvenile court took any action on this matter until approximately three years after it had been remanded when, on May 15, 2003, H.E.T. filed a “Motion for Hearing on Defendant’s Previously Filed Appeal” in the juvenile court. The juvenile court held a hearing on June 19, 2003, at which it addressed the procedural history of the case. Following the hearing, the juvenile court ordered that the case be transferred to this court for review on appeal.

H.E.T. contends that his appeal from the denial of his Rule 60(b) motion is due to be transferred to the circuit court for a trial de novo. Specifically, H.E.T. asserts that he filed an appeal from the judgment of the juvenile court to the circuit court for a trial de novo, even though the notice of appeal that he filed was addressed to this court.

The record on appeal reveals that H.E.T.’s Rule 60(b) motion, as well as the August 8, 1998, judgment from which he sought relief, was docketed with a “CS” number, which generally indicates a juvenile-court child-support matter. § 26-17-10(a), Ala.Code 1975; State ex rel. Provitt v. Coleman, 821 So.2d 1015 (Ala.Civ.App. 2001). We conclude that this matter is in fact a juvenile-court action and is therefore governed by the Rules of Juvenile Procedure. C.D.W. v. State ex rel. J.O.S., 852 So.2d 159 (Ala.Civ.App.2002).

Rule 28, Ala. R. Juv. P., governs appeals from final judgments of juvenile courts. Pursuant to that rule, appeals from judgments entered in the juvenile court are reviewable by this court only if (a) the record has been “certified as adequate by the juvenile court judge or a stipulation of facts is available and the right to a jury trial has been exercised or waived,” or (b) “[t]he parties stipulate that only questions of law are involved and the juvenile court certifies the questions.” Rule 28(A)(1), Ala. R. Juv. P. Appeals taken from final juvenile-court judgments in all other cases, including those cases where there is not an adequate record under Rule 28(A)(1)(a), “shall be to the circuit court for trial de novo.” Rule 28(B), Ala. R. Juv. P. See M.C. v. L.J.H., 868 So.2d 465 (Ala.Civ.App.2003)(holding that the circuit court erred by transferring appeal to this court where the record on appeal was not certified as adequate and where the appropriate stipulations were not made pursuant to Rule 28(A)(1), Ala. R. Juv. P.).

Our review of the record reveals that the juvenile court did not certify the record as adequate following its denial of H.E.T.’s Rule 60(b) motion. The record further reflects that the parties did not stipulate to the facts, waive their right to a jury trial, or certify questions of law to this court. Therefore, under Rule 28(A) and the authority of M.C. v. L.J.H., we must conclude that this court does not have jurisdiction to consider the merits of H.E.T.’s appeal and that H.E.T.’s appeal was to the circuit court.

In light of the foregoing, we conclude that proper jurisdiction to consider the denial of H.E.T.’s Rule 60(b) motion lies in the circuit court. Accordingly, we transfer this case to the Mobile Circuit Court.

APPEAL TRANSFERRED.

YATES, P.J., concurs.

PITTMAN, J., concurs in part and concurs in the result, with writing, which CRAWLEY, J., joins.

MURDOCK, J., concurs in the result, without writing.

PITTMAN, Judge,

concurring in part and concurring in the result.

I do not believe that Ex parte S.W.T., 782 So.2d 766 (Ala.2000), may properly be read so as to foreclose all inquiry by an appropriate appellate court into the timeliness of an appeal where an order granting relief under Rule 77(d), Ala. R. Civ. P., purports to “extend the time for appeal by more than 30 days from the original date by which a notice of appeal had to be filed,” 782 So.2d at 767. However, I do agree with the main opinion’s conclusion that under Rule 28, Ala. R. Juv. P., this court is not the appropriate appellate court in this case. Because we lack jurisdiction to decide H.E.T.’s appeal and are transferring that appeal to the Mobile Circuit Court for disposition, any expressions of opinion by this court regarding the timeliness of the appeal are necessarily dicta.

CRAWLEY, J., concurs.

      . The Uniform Reciprocal Enforcement of Support Act was repealed by Ala. Acts 1997, No. 97-245, § 1, effective January 1, 1998. The Legislature adopted the Uniform Interstate Family Support Act, § 30-3A-101 et seq., Ala.Code 1975, effective January 1, 1998, in its place.

      . The record reflects that the reference to the "Department of Investigation and Recovery” is a reference to the Investigation and Recovery Division of the Juvenile Court of Mobile County.

      . In 1997, the Alabama Legislature amended Section 26-17-20(b), Ala. Code 1975, of the Alabama Uniform Parentage Act, effective July 1, 1997, to eliminate the right to a jury trial in paternity actions.