author: PITTMAN, Judge.

text:
    Sherry D. Roth REHFELD v. Karl D. ROTH.
    2020968.
    Court of Civil Appeals of Alabama.
    Jan. 9, 2004.

      Randall 0. Gladden, Huntsville, for appellant.
    Susan C. Conlon, Huntsville, for appel-lee.
   PITTMAN, Judge.

Sherry D. Roth Rehfeld (“the mother”) appeals from a judgment of the Madison Circuit Court that, among other things, denied her petition to modify custody of two minor daughters born of the mother’s marriage to Karl D. Roth (“the father”). Because we conclude that the trial court improperly required the mother to satisfy the more stringent of two legal standards applicable under Alabama law to child-custody disputes between fit parents, we reverse and remand.

The record reveals that the mother and the father married in June 1986 and that two daughters (aged 13 years and 10 years, respectively) were born of the parties’ marriage. In October 1999, the trial court entered a judgment divorcing the parties in which that court incorporated an agreement of the parties concerning, among other things, child-custody and child-support issues. In pertinent part, the parties’ agreement provided:

“The parties shall have joint custody and control of the parties’ minor children with lenient and liberal visitation for both parties with the best interest of the children being the primary consideration. The [father] shall have physical custody of the children beginning Sunday at 6:00 p.m. each week and ending at 5:00 p.m. on Wednesday of each week. The [mother] shall have physical custody of the children beginning Wednesday at 5:00 p.m. each week and ending at 6:00 [p.m.] on Friday of each week. The parties will alternate weekends. The holidays shall be alternated between the parties in accordance with the Holiday Visitation schedule attached.... Both parties have the right to maintain reasonable telephone communication with the children and both parties agree to work with each other in order to make the custody schedule most convenient for all parties with the welfare of the children and their school and activities being of primary importance. The children’s residence for determining their school district will not be changed from their present residence.
“... The [father] shall pay child support directly to the [mother] at the rate of $350 per month for the support, maintenance and education of the minor children.
“The award of child support made herein was not determined by application of the Child Support Guidelines established by Rule 32, [Ala. R. Jud. Admin.,] because of the joint custody arrangement.”

In September 2002, the mother filed a petition seeking, among other things, a modification of custody, alleging that “changes in circumstances of the parties and the minor children are such that the children need a more stable and suitable situation for their well being going into pre-teen and teenage years” and that the mother “is a fit and proper person for the primary care, custody and control of the minor children.” The father filed a response to the mother’s petition in which he alleged that “there has not been any material change in circumstances such as to rise to the level of transferring custody of the children to the [mother]” and that “the joint custody arrangement which was originally agreed to in the original Divorce Decree has worked well and has allowed both parties to be actively involved in parenting the children”; however, the father also contended that if a material change in circumstances had occurred, he should be awarded sole custody “as he is the more fit and proper person to exercise the primary care, custody and control of the minor children.”

The trial court held an ore tenus proceeding on the mother’s petition on June 4, 2003. During the proceeding, the trial court asked whether either party contended that the custody-modification standard set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984), would not be the proper standard to apply “[i]f we have a joint custody situation where one party has more time than the other.” The trial court then said that it was its understanding “that if there is a party who has more time with the children, physical custody time with the ... children ... that would then effectuate [sic ] the McLendon [sjtandard rather than [the] best interest” standard; the trial court then directed counsel for the parties to provide case references if they disagreed with its view regarding the proper standard to be applied. At the close of the proceeding, counsel for the mother argued that the “custody arrangement in this particular case is so close that” the McLendon standard should not be applied. In response, the trial court repeated its view that it believed that the McLendon standard applied to the mother’s petition, and it quoted the following text from a treatise concerning Alabama family law:

“[W]here there has been a previous judicial determination placing primary physical custody with one parent, the party moving to modify must meet the McLen-don test. This is true where the decree specifically directs joint legal custody and places primary physical custody with one parent. Further, this may also apply in situations where, despite the absence of specific language establishing primary physical custody, the living arrangements are such as to establish it in substance.”

Rick Fernambucq & Gary Pate, Family Law in Alabama: Practice and Procedure § 10.02 (3d ed.2002) (footnotes omitted).

After the ore tenus proceeding had concluded, the mother filed a memorandum brief in which she argued that the parties’ agreement incorporated into the trial court’s divorce judgment, although providing the father with “slightly more physical custody time than” the mother, had intended to confer “true joint custody of the minor children” and that the “best interests” standard set forth in Ex parte Couch, 521 So.2d 987 (Ala.1988), was applicable to her petition. Among other things, the mother contended that the agreement incorporated into the divorce judgment mandated that the father pay child support to the mother, a fact she contended “evi-denc[ed] the intentions of the parties to equalize all factors regarding the custody and support of their minor children.” Despite the mother’s contentions, however, the trial court entered a judgment on June 6, 2003, denying the mother’s request for a modification of custody. Although the trial court stated in its judgment that both parties were “caring and loving parents” and were both “fit and proper parents,” it concluded that the McLendon standard applied to the mother’s petition because, it said, the parties’ agreement that had been incorporated into the divorce judgment “preferred the father] as the primary residential, parent ... in that he has the children for approximately 50 more days each year than does the [mother].” The trial court determined that the mother’s evidence did not “satisfy the heavy burden established in McLendon.”

The mother appeals from the trial court’s June 6, 2003, judgment. She contends that the trial court erred in concluding that the parties’ divorce judgment preferred the father as a custodian and in applying the McLendon standard to her petition based upon that conclusion; she further contends that the trial court should have modified the custody provisions of the divorce judgment even if the McLendon standard was applicable to her petition. The father contends that the trial court properly applied the McLendon standard and properly denied the mother’s petition.

Although a trial court’s judgment that is based on that court’s findings of fact in a child-custody-modification case will not be reversed absent a showing that the findings are plainly and palpably wrong, the ore tenus rule has no application to the mother’s contention regarding the inapplicability of the McLendon standard because the question raised “is not based on a finding of fact; rather it is one of law — whether the correct burden of proof was imposed by the trial court.” Daniel v. Daniel, 842 So.2d 20, 21 (Ala.Civ.App.2002). In Scholl v. Parsons, 655 So.2d 1060 (Ala.Civ.App.1995), we briefly summarized the two burdens of proof generally applicable in cases involving child-custody disputes between parents:

“Where the parties agree to joint legal custody and shared physical custody of the children without a judicial determination preferring either parent, ‘custody [is] appropriately determined by the trial court according to what [is] in the “best interest” of the children.’ Ex parte Couch, 521 So.2d 987, 989 (Ala.1988). However, where the parents have joint legal custody, but a previous judicial determination grants primary custody to one parent and secondary custody to the other, ‘the trial court [is] correct in applying the McLendon standard and requiring the [parent] to show that a change in custody would materially promote the welfare and best interests of the child, offsetting the disruptive effect of uprooting the child.’ Blackmon v. Scott, 622 So.2d 393, 394 (Ala.Civ.App.1993).”

655 So.2d at 1062. Of the standards set forth in Couch and McLendon, the burden of proving “material promotion” of the children’s welfare set out in McLendon is generally described as being the heavier of the two. See, e.g., Garrison v. Garrison, 557 So.2d 1277, 1279 (Ala.Civ.App.1990).

That distinction between the two burdens is crucial to our review. In appeals from a judgment denying a custody petition where the Couch standard was applied, but where the McLendon standard should have been applied, and in appeals from a judgment granting a custody petition where the McLendon standard was applied, but where the Couch standard should have been applied, we have affirmed the judgments under review, concluding that the trial courts’ errors were harmless. See Lawley v. Byrd, 689 So.2d 191 (Ala.Civ.App.1997), and I.M. v. J.P.F., 668 So.2d 843 (Ala.Civ.App.1995). However, where trial courts have denied custody petitions after applying the more stringent McLendon standard where the less stringent Couch standard should have been applied, we have reversed those judgments and remanded the cases for those trial courts to apply the Couch standard. See Davis v. Davis, 753 So.2d 513, 514 (Ala.Civ.App.1999). Thus, as noted in the main opinion in Ex parte W.T.M., 851 So.2d 55 (Ala.Civ.App.2002), “when the trial court uses an improper, higher standard to deny relief to a party requesting a modification of a prior custody order, the appellate court will not review the evidence under the correct lower standard and direct the award of custody,” but will reverse the judgment and remand the cause “for the trial court to make a custody determination, applying the correct standard.” 851 So.2d at 57-58.

In this case, we conclude that the trial court incorrectly required the mother to fulfill the requirements of McLendon in order to prove her entitlement to a modification of the custody provisions of the divorce judgment. The divorce judgment does not expressly “prefer” either parent by providing that one parent will be the primary physical custodian or the primary residential parent, or will otherwise have custodial priority. Compare Berrey v. Berrey, 622 So.2d 1316 (Ala.Civ.App.1993) (judgment directing that mother would provide “primary residence” triggered application of McLendon standard in modification proceeding). Instead, the divorce judgment incorporated the parties’ agreement that the mother and the father will share “joint custody and control of the parties’ minor children,” with each party allocated a weekly period of physical custody lasting no fewer than two days. Indeed, under the divorce judgment’s provision for alternating periods of physical custody, the mother was afforded six full days of physical custody out of every two-week period, excluding holiday periods. Such a balance of physical-custody rights exceeds the nine-month and three-month residential allocations in the judgments sought to be modified in Hovater v. Hovater, 577 So.2d 461 (Ala.Civ.App.1990), and Reuter v. Neese, 586 So.2d 232 (Ala.Civ.App.1991), respectively; in both of those cases, we concluded that the Couch standard, not the McLendon standard, was applicable to modification proceedings because neither parent had been favored in the original custody determination. See also C.M.L. v. L.S.M., 680 So.2d 375 (Ala.Civ.App.1996) (opinion of Crawley, J., with three judges concurring in the result and one judge dissenting).

The father contends that the divorce judgment “preferred” him, citing Skinner v. Hargett, 494 So.2d 652 (Ala.Civ.App.1986); however, that opinion does not mandate an affirmance in this case. In Skinner, the trial court, applying the McLendon standard to a mother’s modification petition, modified a judgment awarding custody of a child to the father for nine months and to the mother for three months each year so as to vest custody solely in the child’s mother. Although we affirmed the trial court’s judgment modifying custody, we did not state in Skinner that the father had been “preferred” as a custodian or that the McLen-don standard was applicable; rather, we affirmed the judgment modifying custody based on the ore tenus rule, stating that “we cannot say that the trial court erred in placing [the child] in the custody of her mother.” 494 So.2d at 653. Moreover, in light of our later decisions in Hovater and Reuter, it is clear that the trial court in Skinner need not have applied the McLen-don standard to the mother’s modification petition; however, any error in doing so was harmless error because the mother necessarily met the “best interests” standard. See I.M., 668 So.2d at 845 (“We note that the trial court applied the McLendon-standard here rather than the ‘best interest’ standard, but because the McLendon standard is more stringent, the trial court’s error in that regard is harmless.”).

We hold, under the facts of this case, that a mere allocation to one parent of approximately 50 more days with his or her children each year than the other parent does not, in and of itself, amount to a custodial “preference” so as to warrant the application of the McLendon standard in proceedings to modify the parties’ rights to custody. Our conclusion that the trial court improperly applied McLendon’s heavier burden in a custody-modification proceeding where Couch supplied the proper burden of proof necessitates our reversal of the trial court’s judgment and our remand of the cause; moreover, it renders moot the mother’s alternative contention that the trial court’s judgment was erroneous even if the McLendon standard were properly applicable to her petition to modify. On remand, the trial court will be free to consider whether a change in custody, or some other alternative relief, is in the best interests of the children.

REVERSED AND REMANDED.

CRAWLEY and THOMPSON, JJ„ concur.

YATES, P.J., and MURDOCK, J„ concur in the result, without writing.

      . We note that the McLendon standard also applies to a parent's custody petition where that parent has voluntarily forfeited custody to another person. A.L. v. S.J., 827 So.2d 828, 834 (Ala.Civ.App.2002).


source: Caselaw Access Project

author: YATES, Presiding Judge.

license: Public Domain

text:
    Linda K. BLOCKER v. Douglas Carey BLOCKER.
    2020486.
    Court of Civil Appeals of Alabama.
    Jan. 16, 2004.

      Jane V. Floyd of Floyd, Floyd & Floyd, Gadsden, for appellant.
    Shannon L. Millican, Gadsden, for appel-lee.
   YATES, Presiding Judge.

Linda K. Blocker and Douglas Carey Blocker were married in 1988; they divorced in 1992. Douglas then married another woman and divorced her in 1997. Subsequently, Linda and Douglas resumed a relationship in which they cohabited. In November 2000, the parties separated.

On April 25, 2001, Linda filed a complaint for a divorce, alleging that there had been a common-law marriage from 1997 until the parties’ separation in November 2000. Douglas denied the existence of a common-law marriage. Several hearings were held on this matter, although none of the transcripts from those hearings are included in the record. On October 1, 2002, the trial court entered a final judgment, finding that no common-law marriage existed between the parties. The trial court then divided certain items of personal property between the parties and purported to grant Douglas title to the “marital home.” We note that during the time that the parties cohabited, the “marital home” was located on land owned by Linda’s brother, Paul Kelley, and title to that property was in his name. The trial court also entered an injunction, pursuant to § 30-5A-1 et seq., Ala.Code 1975, the Family Violence Protection Order Enforcement Act, prohibiting Linda and Douglas from harassing or threatening the other.

On October 29, 2002, Linda moved to alter, amend, or vacate the judgment, pursuant to Rule 59, Ala. R. Civ. P., arguing that the trial court, as a domestic-relations court, lacked the authority to divide the parties’ property once it determined that no common-law marriage existed. She further argued that the real property awarded to Douglas as the “marital home” belonged to her brother during the parties’ cohabitation and that the she did not receive title to that property until one and one-half years after the parties had last lived together.

On January 2, 2003, Linda filed a Rule 60(b), Ala. R. Civ. P., motion, seeking relief from the judgment on the grounds that she had discovered evidence that the parties had had a common-law marriage; she alleged in the Rule 60(b) motion that she had been unable to obtain the evidence before trial because Douglas’s accountant had refused to provide her with the information. Attached to her Rule 60(b) motion were documents from the Internal Revenue Service wherein Douglas had listed Linda as his wife while they had cohabited. On January 24, 2003, the trial court denied Linda’s Rule 59 and Rule 60 motions.

On February 4, 2003, Linda filed a motion to supplement the record because the court reporter had been unable to locate transcripts from the hearings. On March 3, 2003, the trial court held a hearing on the motion wherein he allowed both parties to present testimony. On March 4, 2003, the trial court entered an order essentially restating its judgment of October 1, 2002. On March 6, 2003, Linda filed a notice of appeal from the October 1, 2002, judgment and from the postjudgment orders entered on January 24, 2003, and March 4, 2003.

On March 7, 2003, Douglas moved to add Paul Kelley as a necessary party. On that same day, he also filed a cross-claim against Kelley. On March 7, 2003, the trial court purported to grant the motion to add Kelley as a party.

Linda argues on appeal that the trial court lacked subject-matter jurisdiction to divide the parties’ property once it determined that no common-law marriage existed. She also argues that the trial court had no authority to divide the real property that was awarded to Douglas as the “marital home” because she and Douglas were neither joint tenants nor tenants in common. She further argues that title to the real property that was awarded to Douglas as the “marital home” was in Kelley’s name when the parties were cohabiting. Finally, Linda argues that trial court granted relief that was different from the relief that was requested.

A court does not have the authority to act if the court lacks subject-matter jurisdiction. B.W.C. v. A.N.M., 590 So.2d 282 (Ala.Civ.App.1991). “Subject-matter jurisdiction cannot be waived, and the lack of subject-matter jurisdiction may be raised at any time by a party or by a court ex mero motu.” Ex parte Punturo, [Ms. 1000115, February 8, 2002] — So.2d -, - (Ala.2002) (emphasis in original).

“[T]he judicial power to grant a divorcee] is founded on domicile under our system of law. This is so because domicile in the state gives the court jurisdiction of the marital status or the res or subject matter which the court must have before it in order to act. Jurisdiction of the res is essential because the object of a divorce action is to sever the bonds of matrimony, and unless the marital status is before the court, the court cannot act on that status.”

Hartigan v. Hartigan, 272 Ala. 67, 72, 128 So.2d 725, 729 (1961).

Once a common-law marriage is established, the trial court can divide the parties’ marital property and award alimony. See Hall v. Duster, 727 So.2d 834 (Ala.Civ.App.1999).

“In Alabama, once a claimant has established the existence of a common-law marriage, the status of the claimant is forever changed — the claimant is married. Once a couple has entered into a common-law marriage, the dissolution of that relationship can be accomplished only through divorce. Common-law marriage partners and ceremonially-married couples are subject to the same divorce laws because Alabama treats both forms of marriage the same. A court can divide a common-law couple’s property and award alimony.”

John B. Crawley, Is the Honeymoon Over for Commonr-Law Marriage: A Consideration of the Continued Viability of the Common-Law Marriage Doctrine, 29 Cumb. L.Rev. 399, 410 (1998)(footnotes omitted).

When the trial court entered a judgment finding that no common-law marriage existed, it lost jurisdiction over the subject matter of the action and could not divide or award the parties’ property. See, e.g., Stringer v. Stringer, 689 So.2d 194 (Ala.Civ.App.1997)(once trial court determined that no common-law marriage existed, it denied the relief requested by the parties); Crosson v. Crosson, 668 So.2d 868 (Ala.Civ.App.1995)(trial court dismissed divorce petition after finding that no common-law marriage existed). Although we recognize that courts, other than a court sitting as a domestic-relations court, have addressed whether a common-law marriage existed, those courts had jurisdiction on other grounds. See Ex parte Creel, 719 So.2d 783 (Ala.1998)(probate court having original jurisdiction over all matters concerning probate and administration of estate had jurisdiction to address whether a common-law marriage existed for the purpose of appointing an administrator); National Sec. Fire & Cas. Co. v. Minchew, 372 So.2d 327 (Ala.1979)(insurable interest existed in civil case where trial court found that sufficient evidence was presented of defendant’s common-law marriage); Gilchrist v. State, 466 So.2d 988 (Ala.Crim.App.1984)(trial court in criminal case correctly found that no common-law marriage existed for the purposes of determining whether the “wife’s” statements were admissible against the defendant/“husband”). However, the parties in the present case were before the trial court on a domestic-relations matter pursuant to § 30-2-1, Ala.Code 1975. Because the existence of a common-law marriage was not proven, no “domestic relations” matter existed, and, therefore, the trial court lacked subject-matter jurisdiction to divide the property accumulated while the parties cohabited where the only relief sought was pursuant to a complaint for a divorce.

“ ‘Lacking subject matter jurisdiction [a court] may take no action other than to exercise its power to dismiss the action .... Any other action taken by a court lacking subject matter jurisdiction is null and void.’ ” State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1029 (Ala.1999)(quoting Beach v. Director of Revenue, 934 S.W.2d 315, 318 (Mo.Ct.App.1996)). Accordingly, we reverse the trial court’s judgment and remand the case for proceedings consistent with this opinion.

REVERSED AND REMANDED.

THOMPSON and MURDOCK, JJ., concur.

CRAWLEY and PITTMAN, JJ., concur in the result, without writing.

      . The transcript from the March 3, 2003, proceeding is part of the record.

      . The trial court lost jurisdiction to add a new party to the action while the case was pending on appeal to this court. See Horton v. Horton, 822 So.2d 431 (Ala.Civ.App.2001)(a trial court loses jurisdiction to act except in matters entirely collateral to the appeal).


text:
    Ex parte K.S.C.C. (In re K.S.C.C. v. W.H.C.)
    2020656.
    Court of Civil Appeals of Alabama.
    Jan. 16, 2004.

      Joan M. Harris, Huntsville; and Darla T. Furman of Gibbons & Furman, Huntsville, for petitioner.
    Kevin D. Teague, Decatur, for respondent.
   YATES, Presiding Judge.

K.S.C.C. petitions this court for a writ of mandamus directing the trial court to vacate its order of April 8, 2003, and to enter an order awarding her custody of the parties’ minor children, which, she claims, is required by this court’s opinion in K.S.C.C. v. W.H.C., 857 So.2d 830 (Ala.Civ.App.2002).

KS.C.C. (“the mother”) and W.H.C. (“the father”) were divorced in October 1996. Two children were born of the marriage. The trial court entered an order awarding the mother full custody of the children subject to visitation rights by the father. In October 1998, the mother petitioned to modify the father’s visitation rights, alleging that the children were being sexually abused. The father moved to hold the mother in contempt. The trial court denied both motions.

On August 3, 1999, the mother moved for an emergency ex parte order, alleging that the parties’ daughter had been sexually abused while visiting the father. The father then petitioned to modify custody of the children, arguing that there had been a material change in circumstances. Following ore tenus proceedings, the trial court, on January 21, 2000, ordered that the parties undergo forensic evaluations. The trial court subsequently set the matter for a hearing; however, the trial court postponed the hearing because the parties agreed to submit to family counseling. On May 22, 2000, the trial court ordered that the mother undergo a psychological evaluation and that the parties and their children undergo counseling. Subsequently, the trial court ordered the father to undergo a forensic examination and to meet with a licensed professional counselor. After meeting with the father, the counselor notified the trial court that she would not feel comfortable recommending unsupervised visitation between the father and the children.

Following an ore tenus proceeding on April 2, 2001, at which the mother failed to appear, the trial court, on April 4, 2001, entered a default judgment against the mother and granted custody to the father, allowing the mother supervised visitation. The trial court also held the mother in contempt for violating its previous orders. That same day, the mother moved to set aside the default judgment. The trial court scheduled the matter for a hearing on May 1, 2001. On April 6, 2001, the father moved to hold the mother in contempt, alleging that she had absconded out of state with the children and that the children were currently in child-protection services in Tennessee. On May 1, 2001, the trial court held a hearing on the mother’s motion to set aside the default judgment and on the father’s new contempt motion. The trial court did not rule on either motion; the mother appealed.

In K.S.C.C. v. W.H.C., supra, this court held that the trial court had erred in failing to set aside the default judgment. There was ample evidence in the record to indicate that the parties’ minor daughter had been sexually abused. We further found that “such evidence would serve as a meritorious defense for the mother against the father’s petition to modify and to hold the mother in contempt.” 857 So.2d at 835. We held that the father would not be unduly prejudiced by setting aside the default judgment because there was evidence in the record that the father had obstructed the reunification plan with the children by refusing to pay for and failing to attend counseling as ordered by the trial court. Also, the record indicated that the mother’s attorney had immediately moved to set aside the default judgment.

In K.S.C.C. v. W.H.C., we also held that the trial court had erred in holding the mother in contempt on April 4, 2001, on the father’s original contempt claim. The father testified that the mother had denied him visitation three times. However, the father contradicted himself and admitted that on two of those occasions it was his fault for not providing the mother with proper notice as required by the trial court’s order entered in October 1998. We further held that the trial court had abused its discretion in awarding the father an attorney fee. We reversed the trial court’s judgment and remanded the case for “the trial court to enter an order consistent with [our] opinion.” 857 So.2d at 836.

On remand, the trial court, on April 8, 2003, entered an order stating:

“(1) Pending hearing on the status of the children’s welfare since May 1, 2001, the temporary custody of the children will remain with the father subject [to] the mother’s rights of visitation.
“(2) As the court heard all evidence on the mother’s petition alleging abuse, no further evidence will be taken on this issue.
“(3) The court will take evidence on the father’s motion for contempt and his counterpetition for custody.”

The issue before this court in K.S.C.C. v. W.H.C. was whether the trial court had erred in refusing to set aside the default judgment. We recognize that the trial court had held hearings in the matter; however, no final judgment had been entered on the custody issue and on the father’s motion to hold the mother in contempt. Instead, the trial judge had entered a default judgment when the mother failed to appear at one of the hearings. Clearly, before entering the default judgment, the trial court expected to conduct further proceedings in this matter; in fact, there was a subsequent hearing scheduled when the default judgment was entered. This court merely reversed the default judgment against the mother. Although the mother seeks a petition for a writ of mandamus directing the trial court to enter an order awarding her custody, she is not entitled to such relief based on this court’s decision in KS.C.C. v. W.H.C. Once the trial court determines the pending issues of custody and contempt, if the mother is not satisfied with the result, she can then appeal from the trial court’s judgment. Mandamus is not a substitute for appeal. Ex parte Showers, 812 So.2d 277 (Ala.2001).

PETITION DENIED.

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


author: CRAWLEY, Judge.

text:
    James D. KING, Jr., and Emma R. King v. CITY OF BIRMINGHAM.
    2020664.
    Court of Civil Appeals of Alabama.
    Jan. 23, 2004.
    Ferris S. Ritchey, Jr., of Ritchey & Rit-chey, P.A., Birmingham, for appellants.
    Malera Traylor-Wright, Law Department, City of Birmingham, for appellee.
   CRAWLEY, Judge.

In August 2002, James D. King, Jr., and Emma R. King applied to the City of Birmingham (“the City”) for a Class I lounge liquor license and a Division I dance permit under the trade name “E & J Lounge.” The city council considered and denied the application at its regular council meeting on November 5, 2002. Thereafter, the Kings filed a complaint in the Jefferson Circuit Court, seeking a judgment declaring that the City had acted in an arbitrary and capricious manner when it denied their application. The circuit court held a de novo hearing in January 2003 and thereafter entered a judgment in favor of the City, stating that the Kings’ claims for declaratory relief were “not well founded.”

The Kings filed a timely postjudgment motion, arguing that the trial court had erred by concluding that the City had not acted in an arbitrary and capricious manner when it denied their application because, they alleged, the City had failed to establish any of the statutory grounds for denying their application. The trial court summarily denied the motion, and the Kings filed a timely notice of appeal to this court. This court transferred the appeal to the Alabama Supreme Court based on lack of subject-matter jurisdiction. The supreme court later transferred the appeal back to this court pursuant to § 12-2-7(6), Ala. Code 1975.

The evidence established that the premises for which the Kings sought a liquor license and a dance permit is in the East Lake area of Birmingham and has been the site of a lounge for over 30 years. The property is zoned as “commercial” and is situated between two adult bookstores. In close proximity to the premises are an appliance repair shop, a bank, several fast-food restaurants, a drugstore, a beauty shop, a service station, and an automobile body shop. For many years, the premises had been operated, without complaint from local residents or law-enforcement officials, as a lounge known as the “In-Between Club.” However, the most recent licensee of an establishment on the premises, who had no connection with the Kings, had operated a lounge known as “Club L” for two years and had angered the local residents.

The evidence established that there are two apartment complexes across the alley in back of the premises for which the Kings sought a liquor license and a dance permit. Three witnesses — the owner of the apartment complexes, the resident manager of the apartment complexes, and a Birmingham police officer — testified that Club L had been a nuisance. Sgt. Willis Cogman, Jr., testified that he had responded to numerous complaints concerning Club L. The club had been the scene of a shooting and several arrests for intoxication and vandalism. Ronald Rodham, the owner of the apartment complexes, testified that he had experienced so many problems with Club L — gunshots, fights, late-night traffic, loud music, and disputes over parking — that he had hired an off-duty police officer for the security of his tenants. He acknowledged that there had been a lounge on the premises for 30 years and that the problems he described were limited to Club L, which he said catered to “a younger crowd from Gate City.”

Patricia Johnson, the resident manager of the apartment complexes, said that she had experienced constant problems with Club L because its patrons parked in the residents’ parking lot, threw beer bottles, had car races in the alleyway, and, she thought, caused her tenant-occupancy rate to drop. She testified that there had been no problems with other establishments that had occupied the premises before Club L, and she attributed Club L’s being a nuisance to two factors: it attracted a younger, rowdier crowd than the other establishments, and it stayed open past 2:00 a.m. every night of the week. At the time of the Kings’ application, Club L had been closed and the premises had been vacant for 18 months.

The Kings bought the premises and made repairs and renovations to the property before applying for a liquor license and a dance permit. Mrs. King testified that if they were granted a liquor license and a dance permit, they planned to operate the lounge on Thursday nights from 6:00 p.m. to midnight and on Friday and Saturday nights from 6:00 p.m. to 2:00 a.m. They intended to open the lounge on Sunday nights only for special occasions or when the following Monday was a holiday. Mrs. King contrasted the proposed operating hours with those of Club L, which she said had had a private-club license, thus enabling it to remain open every night past 2:00 a.m.

Mrs. King testified that she and her husband have full-time day jobs. She is an agent for American General Insurance Company and her husband is a signalman for Norfolk Southern Railroad. She stated that she and her husband would continue their full-time jobs and would operate the lounge “on the side” because they enjoyed blues music. Mrs. King testified-that they expected to cater to an “older crowd,” patrons who were over the age of 25. She said they intended to post “No Loitering” and “No Parking” signs and to have a security guard who would “prevent the sort of worries that [the apartment residents] seemed to have” about the operation of a lounge in the neighborhood.

Section 28-l-6(a)(l), Ala.Code 1975, states that the Alabama Alcoholic Beverage Control Board cannot issue a liquor license in certain municipalities, including the City of Birmingham, unless (a) the municipality approves the license, or (b) the circuit court reverses the municipality’s denial because

“the municipal approval was arbitrarily or capriciously denied without a showing of one of the following:
“1. The creation of a nuisance.
“2. Circumstances clearly detrimental to adjacent residential neighborhoods.
“3. A violation of applicable zoning restrictions or regulations.”

“Clearly, the statute places the burden on the City to show that the denial is supported by one of the three situations stated in [§ 28-l-6(a)(l)(b)].” City of Montgomery v. Glenn, 749 So.2d 478, 480 (Ala.Civ.App.1999). The standard of review in a case governed by § 28-1-6 has been explained by our supreme court:

“The trial court’s findings of fact are presumed to be correct when they are based on ore tenus evidence. Because § 28-1-6 provides for de novo review in the circuit court from the disapproval of an application for a license to sell alcohol, the usual presumption in favor of the findings by the city or administrative agency is not applicable here.... In the case of an appeal to the circuit court, the statute requires a circuit judge to hear the evidence de novo, i.e., without any presumption in favor of the municipality....
“On appeal from the order of the circuit court, we are required to indulge every presumption in favor of the trial court’s findings of fact.... The trial court’s judgment in such a case will be affirmed if, ‘under any reasonable aspect of the testimony, there is credible evi-denee to support the judgment.’ Jones v. Jones, 470 So.2d 1207, 1208 (Ala.1985); Clark v. Albertville Nursing Home, Inc., 545 So.2d 9, 12-13 (Ala.1989).”

City of Mobile v. Simpsiridis, 733 So.2d 378, 381-82 (Ala.1999). In the present case, the circuit court summarily denied the Kings’ request for relief and made no findings of fact. “When a trial court does not make specific findings of fact concerning a particular issue, an appellate court will assume that the trial court made those findings that would have been necessary to support its judgment, unless those findings would be clearly erroneous.” Ex parte Byars, 794 So.2d 345, 349 (Ala.2001)(emphasis added). A finding that is unsupported by any evidence is clearly erroneous. Miree Painting Co. v. Woodward Constr. & Design, Inc., 627 So.2d 389 (Ala.Civ.App.1992), reversed on another ground, 627 So.2d 393 (Ala.1993). We conclude that a finding by the circuit court that granting the Kings’ application would create a nuisance, or produce “Circumstances clearly detrimental to adjacent residential neighborhoods,” or constitute a “violation of applicable zoning restrictions or regulations,” would have been clearly erroneous because there was no evidence to support such findings. See City of Mobile v. Simpsiridis, supra (affirming a circuit court’s decision to set aside the denial of a liquor license as arbitrary and capricious because the city did not present substantial evidence of any of the three statutory grounds for denial).

The evidence in the present case regarding complaints by law-enforcement officials and nearby apartment residents all dealt with improper conduct on the premises or conduct by patrons of the premises while it was operated as “Club L” by a previous licensee. No evidence indicated that the premises themselves were inherently unsuitable as the location of a lounge serving alcoholic beverages if the lounge were properly managed and lawfully operated. Compare Broughton v. Alabama Alcoholic Beverage Control Bd., 348 So.2d 1059 (Ala.Civ.App.1977)(holding that the proposed location was improper by reason of its proximity to a school and a church). In fact, all the witnesses agreed that, prior to the licensing of Club L, the premises had been operated without complaint by other licensees. Moreover, the evidence indicated that two circumstances that had made Club L objectionable to adjacent residents — its licensing as a “private club” with unlimited hours and its catering to a younger and presumably rowdier crowd— would not exist if the Kings’ license application were approved.

Courts in other jurisdictions have held that the denial of a liquor-license application based solely upon the conduct or reputation of a prior licensee in the same location is arbitrary and capricious. See, e.g., Wajda v. City of Minneapolis, 310 Minn. 339, 246 N.W.2d 455 (1976); Anton’s Inc. v. City of Minneapolis, 375 N.W.2d 504 (Minn.Ct.App.1985); Stefan’s Taverns, Inc. v. New York State Liquor Auth., 25 A.D.2d 824, 269 N.Y.S.2d 670 (1966). Instead, each applicant must be evaluated independently of others for whose conduct he is not responsible. In Gerber v. District of Columbia Alcoholic Beverage Control Board, 499 A.2d 1193, 1195 (D.C.1985), the Court of Appeals for the District of Columbia stated:

“There is no question ... that the character of the applicant and of the premises for which the license is sought will necessarily differ from one application to the next, and the Board must necessarily evaluate each applicant individually, on a case-by-case basis. We have previously held that the fact that the Board has acted in opposite ways on two license applications for premises that are adjacent to one another is not arbitrary, when the ‘qualifications of the applicants and the character of the [establishments for which the license is requested] are different.’ ”

Quoting Sophia’s Inc. v. Alcoholic Beverage Control Bd. of the Dist. of Columbia, 268 A.2d 799, 801 (D.C.1970) (emphasis added).

The City concedes that approving the Kings’ application would not have caused any zoning problems. The City argues, however, that it presented sufficient evidence for the trial court to find that approving the Kings’ application would create a nuisance and would produce circumstances clearly detrimental to adjacent residential neighborhoods. The City contends that the circuit court’s conclusion that the denial of the Kings’ application was not arbitrary and capricious is supported by evidence concerning both the history of past criminal conduct at the premises and disturbances caused by patrons of other establishments on the premises. We disagree.

Much of the evidence regarding the operation of Club L was simply not probative of whether the Kings’ proposed lounge would constitute a nuisance or would produce circumstances clearly detrimental to the adjacent apartment residents. The City’s own witnesses conceded that the existence of a lounge serving alcohol at the site had created “no problems” for most of the 30 years that such a lounge had been licensed there. It was only the most recent licensee’s manner of operating its establishment at the site that had created problems for the adjacent residential neighborhood. Speculation that the Kings might operate their lounge in the same manner as the proprietor of Club L had done is insufficient to establish circumstances “clearly detrimental” to adjacent residential neighborhoods. See City of Mobile v. Simpsiridis, 733 So.2d at 381 (indicating that a city councilman’s “concern, without any evidence to support it, that the issuance of a license at these premises might increase crime and loitering in the area” was insufficient to establish circumstances “clearly detrimental” to adjacent residential neighborhoods).

In Circus Disco, Ltd. v. New York State Liquor Authority, 51 N.Y.2d 24, 35-36, 409 N.E.2d 963, 969, 431 N.Y.S.2d 491, 497 (1980), „ the New York Court of Appeals held that “[djenial of a license on the speculation that it will be operated in violation of law is impermissible.” (Emphasis added.) The court explained:

“That a license may not be denied for such a reason does not mean that area residents are without remedy. As already noted, the authority may step in if what is now feared becomes fact. Moreover, the residents themselves may obtain an injunction ... if the premises do in fact become a ... nuisance.”

51 N.Y.2d at 36, 409 N.E.2d at 969, 431 N.Y.S.2d at 497. See also Wajda v. City of Minneapolis, 310 Minn. at 344, 246 N.W.2d at 458, in which the Minnesota Supreme Court stated:

“If the city’s speculations as to Mrs. Wajda’s incapacity to properly operate the premises are borne out by actual experience, the city would always have the power to rescind the license.... Such speculations afford no cognizable basis for the refusal to issue the license in the first place, however.”

Because there was no evidence to support the City’s denial of the Kings’ application for a lounge liquor license, the City’s decision was arbitrary and capricious. The circuit court erred by concluding otherwise and denying the Kings the relief they sought. The judgment of the circuit court is reversed, and the cause is remanded for proceedings consistent with the principles discussed in this opinion.

REVERSED AND REMANDED.

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

MURDOCK, J., dissents, without writing.


text:
    G.W. v. SHERIFF OF JEFFERSON COUNTY and D.C.
    2020917.
    Court of Civil Appeals of Alabama.
    Jan. 28, 2004.
    Kenneth J. Lay, Legal Services of Metro Birmingham, Inc., Birmingham, for appellant.
    Dale W. Snodgrass Birmingham, for ap-pellee D.C.
   YATES, Presiding Judge.

This case involves the denial of a petition for the writ of habeas corpus.

On January 31, 2001, the State, on behalf of D.C., filed a complaint seeking to establish paternity and seeking child support, alleging that G.W. was the father of K.N.C., who was born in 2000. Genetic testing indicated a 99% probability that G.W. is the father of K.N.C. A hearing was held on October 24, 2001. The trial court found G.W. in contempt and ordered him jailed for “out of order and insolent” comments made during the proceeding. G.W. was released from jail on October 25, 2001. On October 27, 2001, the trial court entered a judgment, finding G.W. to be the father of K.N.C. The trial court imputed income to G.W. of $893 per month and ordered him to pay $173 per month in child support. The trial court also ordered that G.W. reimburse D.C. for retroactive child support in the amount of $1,557, at the rate of $25 per month. The trial court ordered G.W. to pay $20 within 30 days of the entry of the judgment to pay for the cost of a new birth certifícate, and it ordered that the parties share noncovered medical expenses of the child.

On February 19, 2002, D.C. petitioned for a rule nisi, alleging that G.W. owed $692 as a child-support arrearage and $10.38 in interest as of February 14, 2002. On March 22, 2002, G.W. was served with notice of the petition and was granted a 30-day continuance to obtain legal counsel. On April 25, 2002, a hearing was held on the petition. G.W. left the court before the case was called. On April 29, 2002, the trial court held G.W. in contempt, finding that he owed $2,549.72 as a child-support arrearage. The court issued a writ of attachment and set a cash bond in the amount of $2,550 in order for G.W. to purge himself of the contempt. G.W. did not appeal from that contempt order.

The trial court held subsequent hearings on July 25, 2002, September 27, 2002, December 10, 2002, January 30, 2003, and April 1, 2003; G.W. failed to appear at any of those hearings. On April 17, 2003, G.W. was arrested. On May 28, 2003, the trial court found that G.W. owed $5,168.09 as a child-support arrearage. The trial court reset a cash bond and reduced it to $2,000.

On June 23, 2003, G.W. filed a petition for the writ of habeas corpus, alleging an inability to pay child support. On June 26, 2003, a hearing was held on G.W.’s petition. That same day, the trial court denied the petition. G.W. appeals, arguing that because he is unable to satisfy his court-ordered child-support obligations, it is error to incarcerate him for civil contempt; therefore, he argues, his petition should have been granted. We note that G.W. did not appeal from the April 29, 2002, judgment of contempt; therefore, we do not reach the correctness of that judgment on this appeal. The sole issue before this court is whether the trial court erred in denying G.W.’s petition for the writ of habeas corpus. “Although one may be guilty of contempt, ... imprisonment, as a means of coercing payment, may not be imposed if there is shown a present inability to pay.” Ex parte Talbert, 419 So.2d 240, 241 (Ala.Civ.App.1982). “ ‘Imprisonment for contempt should never be imposed by a judge where failure to pay [court-ordered support] is not from contumacy, but from inability to comply with the order.’ ” Taylor v. Johnson, 764 So.2d 1281, 1282 (Ala.Civ.App.2000), quoting Ex parte Talbert, 419 So.2d at 241.

A review of the record reveals the following: G.W. testified that he was 21 years old and that, before being arrested, he lived with his sister. He admitted that he had been ordered to pay $173 per month in child support. G.W. stated that at the time of his arrest in April 2003, he was working for a man named Greg, removing carpets and taking up tile. He stated that he was earning $325 per week in cash. G.W. testified that he did not have $2,000 to pay the cash bond and that he did not have a bank account or any other assets.

On cross-examination, G.W. testified that he planned to get a job in order to support the child. However, he testified that he did not mail any letters to or attempt to contact any potential employers while he was incarcerated. G.W. admitted that he had not made a voluntary payment for child support since April 2002. He testified that when he was arrested in this child-support case, he was already incarcerated at the Birmingham jail, where he was being held on a charge of possession of cocaine.

G.W. testified that he had previously worked at a McDonald’s fast-food restaurant, but he could not remember when he started that job or when he quit. He stated that his mother had filed a Chapter 13 bankruptcy petition on his behalf while he was incarcerated. The bankruptcy petition indicated that G.W. had $600 worth of home furnishings and $200 worth of clothes. However, G.W. testified that he did not have any furnishings or clothing. He also testified that his bankruptcy petition was dismissed because he failed to make any payments. G.W. later testified that he did not authorize an attorney to file a bankruptcy petition on his behalf, although an attorney had signed the petition on his behalf, and that the bankruptcy petition was filed “out of the clear blue.”

G.W. testified that he did not own an automobile or a home. He stated that he lived with family members or in homeless shelters. G.W. stated he was expelled from high school in the eleventh grade and that he does not have a high-school equivalency degree.

At the June 26, 2003, hearing on G.W.’s petition, G.W.’s counsel argued that G.W. had presented his own testimony that he could not afford to pay child support and that no evidence had been presented by either the State or D.C. that G.W. had $2,000 in assets, and, therefore, he argued, the trial court should release G.W. The State and counsel for D.C. argued that the trial court was entitled to rule on G.W.’s credibility. In response, the trial court stated:

“All right. You gentlemen have raised an interesting issue about, I think, credibility of the witnesses. Now, if, [G.W.’s counsel], if I accepted that— your argument that the Court should— these aren’t your words I' know, but accept without challenge testimony of a lone witness then I would not be necessary. If that be the case, you could proceed with an affidavit and a clerk could make a decision rubber stamping an order. I believe that as the trier of fact, a trial judge sitting without a jury has the same rights and responsibilities to judge the credibility of the witnesses. I believe that a trial judge can take into consideration the demeanor, the deportment, attitude of the witness. I don’t think the trial judge, is charged with the responsibility whether it’s one witness or a hundred witnesses to accept only words without considering other matters that counsel for [D.C.] brought up. I’ll tell you also, the Court has a very clear recollection' — -this case certainly does ... turn on this, but has a very clear recollection that in October [2001], [G.W.] had to be cited by me for contempt of Court for an outburst here in this courtroom where he proceeded, not only to make insulting remarks in my presence and to be very disrespectful, but he was defiant and cursed sheriffs deputies. So I don’t think this Court is a rubber stamp in this case. And I don’t believe that we are holding his body illegally so I’m going to deny that petition.”

While this appeal was pending, G.W. filed an emergency motion for a stay of further proceedings in the trial court and a motion for an immediate release from jail. This court ordered G.W.' released from custody pending disposition of his appeal.

G.W.’s contention is that he does not have the present financial ability to comply with the trial court’s order to pay $2,000 in order to purge himself of contempt. We agree with the trial court that it was within the trial court’s discretion to determine whether it believed G.W.’s testimony concerning his present inability to purge himself of contempt. In Newman v. Sexton, 657 So.2d 894 (Ala.Civ.App.1994), the father had been found in contempt for failure to pay child support in an earlier proceeding. Subsequently, the trial court ordered the father imprisoned for civil contempt until “ ‘he makes an offer to purge that is acceptable to the Court.’ ” 657 So.2d at 895. The father filed a petition for the writ of habeas corpus, which the trial court denied. On appeal, the father argued that he was presently unable to satisfy his child-support obligations and that his petition should have been granted. This court, in affirming the judgment of the trial court, stated:

“[The father] testified regarding two bank accounts in his control with balances totalling less than $200. He further testified that his mother is paying his legal expenses. On cross-examination, [the father] could not account for large sums of money he had deposited in and transferred among several foreign banks. Our review of the record, including transcripts from federal court proceedings in which [the father] was ultimately convicted of tax evasion, provides information which supports the trial court’s determination that [the father] has access to sufficient assets to satisfy the support obligations. It is the duty of the trial court to resolve conflicting evidence, and its finding is presumed correct. Watkins v. Montgomery Days Inn, 455 So.2d 23 (Ala.Civ.App.1984).”

657 So.2d at 895 (footnote omitted).

In the present case, there was evidence presented from which the trial court could have found that G.W. had $800 worth of assets, as stated in his bankruptcy petition. However, that evidence is insufficient to show that G.W. has the present ability to pay the $2,000 he was ordered to pay in order to purge himself of contempt. Accordingly, the judgment of the trial court denying the petition for the writ of habeas corpus is reversed, and the case is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

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

      . The five hearings were held pursuant to writs of attachment, issued by the trial court. Each writ ordered that G.W. be arrested unless he paid the cash bond amount set out in the writ; the cash bond amounts set out in the writs increased in accordance with the increasing amount of child support G.W. owed.

      . Since 1994, all contempt proceedings in civil actions have been governed by Rule 70A, Ala. R. Civ. P. Rule 70A(g) provides that if a person found in contempt is in custody pursuant to that adjudication of contempt, review of that adjudication is by appeal unless the writ of habeas corpus is available, and that, if the person is not in custody, review of the adjudication of contempt is by appeal. As stated earlier, G.W. did not appeal from the trial court’s contempt finding of April 29, 2002.

      . The State contends that there was evidence from which the trial court could have found that G.W. had the ability to work, because he had worked at various jobs in the past, but that he was voluntarily unemployed. The State correctly argues that a finding of voluntary unemployment may support a finding of contempt. Cf. T.L.D. v. C.G., 849 So.2d 200 (Ala.Civ.App.2002)(contempt finding for nonpayment of child-support obligation may be based on imputed income). However, although a person may be guilty of contempt, that person may not be imprisoned to coerce payment when he or she does not have the present ability to pay. Ex parte Talbert, 419 So.2d 240.


text:
    FINOVA CAPITAL CORPORATION v. COLLEGE CITY DRUGS, INC., and Roy Barnett.
    2020500.
    Court of Civil Appeals of Alabama.
    Jan. 30, 2004.

      Lee H. Zell, F. Inge Johnstone, and Julie Jarrell Gresham of Balch & Bing-ham, LLP, Birmingham; and Philip Henry Pitts and Rickman E. Williams III of Pitts, Pitts & Williams, Selma, for appellant.
    Robert H. Turner, Marion, for appellees.
   YATES, Presiding Judge.

Finova Capital Corporation sued College City Drugs, Inc., and its president, Roy Barnett, on February 25, 2002, alleging a breach of two finance leases, which Finova says had been modified by an order of the United States Bankruptcy Court for the Middle District of Florida confirming a Chapter 11 reorganization plan. On July 3, 2002, Finova moved the court for a summary judgment on its claim alleging a breach of the lease agreements.

On September 3, 2002, College City Drugs and Barnett moved the court to dismiss Finova’s complaint, arguing that the trial court did not have subject-matter jurisdiction because the Bankruptcy Court for the Middle District of Florida had retained jurisdiction over the matter pursuant to Article XII of the reorganization plan. On that same date, College City Drugs and Barnett responded to Finova’s motion for a summary judgment and counterclaimed against Finova, alleging misrepresentation and suppression. On September 6, 2002, the trial court entered an order denying Finova’s motion for a summary judgment and denying College City Drugs and Barnett’s motion to dismiss.

On January 23, 2003, Finova answered the counterclaim and moved the court for a judgment on the pleadings as to the counterclaim. Apparently, College City Drugs and Barnett renewed their motion to dismiss Finova’s complaint, again arguing that the trial court lacked subject-matter jurisdiction. The trial court, on January 30, 2003, entered the following order:

“This matter is before the Court on the Defendants’ motion to dismiss for lack of subject matter jurisdiction. The Court, having considered the arguments of counsel and the order of the United States Bankruptcy Court for the Middle District of Florida, Tampa Division, finds that the Defendants’ motion is well taken and due to be granted. The Court finds that the Bankruptcy Court has retained jurisdiction and that this matter should be submitted to the Bankruptcy Court for further proceedings therein. This case is dismissed in its entirety, with each party to bear their own costs.”

Finova appeals.

Although neither Finova nor College City Drugs and Barnett has questioned this court’s appellate jurisdiction in this matter, we must consider whether we have jurisdiction over this appeal, because “ ‘jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.’ Nobles v. Alabama Christian Academy, 724 So.2d 527, 529 (Ala.Civ.App.1998), quoting Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987). This court has stated:

“A final judgment is one that completely adjudicates all matters in controversy between all the parties.
“... An order that does not dispose of all claims or determine the rights and liabilities of all the parties to an action is not a final judgment. In such an instance, an appeal may be had ‘only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment [pursuant to Rule 54(b), Ala. R. Civ. P.]’ ”

Eubanks v. McCollum, 828 So.2d 935, 937 (Ala.Civ.App.2002) (citations omitted).

In the present case, the trial court entered an order dismissing Finova’s complaint alleging a breach of two lease agreements against College City Drugs and Barnett; however, College City Drugs and Barnett’s counterclaim remained pending because the court did not enter an order disposing of the counterclaim or granting Finova’s motion for a judgment on the pleadings as to that counterclaim. Further, there is no Rule 54(b), Ala. R. Civ. P., certification in the record as to the court’s order dismissing Finova’s complaint. Accordingly, we must dismiss this appeal as being from a nonfinal judgment.

APPEAL DISMISSED.

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

      . Finova asserts in a proposed “Statement of the Evidence and Proceedings,” submitted to the trial court pursuant to Rule 10(d), Ala. R.App. P., that College City Drugs and Barnett renewed their motion at a pretrial conference at which no transcription or recording was made. The proposed statement of the evidence was served on College City Drugs and Barnett, and they did not object or propose any amendments to the proposed statement; however, it does not appear from the record that the trial court entered an order approving the proposed statement of the evidence. See Rule 10(d), Ala. R.App. P. This court granted Finova’s motion to supplement the record on appeal to include Finova’s proposed statement of the evidence and proceedings and an exhibit attached to the statement.