author: MADDOX, Retired Justice.

text:
    Roger BROXTON v. Don SIEGELMAN  and Dr. Lee H. Warner.
    1020192.
    Supreme Court of Alabama.
    April 18, 2003.
    Roger Broxton, pro se.
    William H. Pryor, Jr., atty. gen., and William D. Little, asst. atty. gen., for ap-pellees.

      . Bob Riley succeeded Don Siegelman as Governor. Rule 43(b), Ala. R.App. P., provides that when, an officeholder leaves office, the successor is automatically substituted.

   MADDOX, Retired Justice.

This taxpayer lawsuit challenges the expenditure of funds for a proposed alteration of the grounds and streets in front of the state capítol. This case presents three issues: whether the plaintiff, Roger Brox-ton, presented substantial evidence indicating that state moneys were being used in the proposed alteration, thereby authorizing him, as a state taxpayer, to sue; whether payments made using state funds, but which are then reimbursed by federal money, constitute the use of state funds; and whether Broxton has standing to sue if only federal funds are used. Because we agree with the judgment of the trial court, we affirm.

Facts

On January 14, 2002, Broxton, a resident and taxpayer of the State of Alabama, sued Don Siegelman, then Governor of the State of Alabama; Dr. Lee H. Warner, executive director of the Alabama Historical Commission; and Bill Pryor, attorney general of the State of Alabama, in the Montgomery Circuit Court, alleging that proposed changes in the landscaping in front of the state capítol, which included narrowing Bainbridge Street in front of the capítol, removing the parking areas on both sides of Dexter Avenue in front of the capítol, and modifying the slope of the hill leading to the capítol (hereinafter referred to as “the landscaping project”), violated the provisions of § 41-9-261, Ala.Code 1975, which provides, in part, that “[t]he primary restoration, planning and preservation responsibility for the State Capitol of Alabama and its contiguous historic grounds, designated by the United States government as a national historic landmark, is hereby delegated to the Alabama Historical Commission.”

In his complaint, Broxton alleged:

“According to the minutes of its meetings and its web site, the Alabama Historical Commission has voted to extend the Alabama Capitol Grounds into Bain-bridge Street and to alter the slopes of the Capitol Grounds, citing [§ 41-9-261, Ala.Code 1975,] as [its] authority for this action. Governor Don Siegelman has approved these changes. Therefore, the Commission could begin construction at any moment. The Commission’s official reason for this action is to make the Capitol Grounds ‘user friendly,’ a reason not authorized by law.
“The extension of the Alabama Capitol Grounds into Bainbridge Street and the altering of the slopes of the Capitol Grounds will result in the unlawful expenditure of substantial public funds; $5.8 million, according to the Alabama Historical Commission....”

Broxton asked that the trial court declare that the proposed actions “threaten” to violate § 41-9-261, Ala.Code 1975, and that it enjoin the governor and the Alabama Historical Commission from changing the boundaries of the capítol grounds and from altering the slope of the capítol grounds.

Dr. Warner and then Governor Siegel-man answered the complaint; Attorney General Pryor filed a motion to dismiss him as a party. Attorney General Pryor’s motion to dismiss was granted on March 27, 2002. On April 16, 2002, then Governor Siegelman and Dr. Warner (hereinafter referred to collectively as “the defendants”) filed a joint motion for a summary judgment, on the ground that Broxton lacked standing to bring the action. They alleged that because Broxton’s standing for filing the complaint was based on his status as a state taxpayer he lacked standing because, they argued, the money to be used for the landscaping project was federal, not state, money. The defendants attached an affidavit from Mark Driscoll, director of historical sites for the Alabama Historical Commission. In that affidavit, Driscoll stated:

“All funds to be expended on the modification of the landscaping of the Capitol grounds, including the narrowing of Bainbridge Street and the alteration of the western slope of Capitol Hill, will come from a Transportation Enhancement grant from the Federal Highway Administration which will be received by the Alabama Historical Commission through the Alabama Department of Transportation. The source of these funds is therefore federal taxes.” ■

On April 25, 2002, Broxton filed an amended complaint; in that complaint he alleged that in addition to being a citizen and taxpayer of Alabama, he was a citizen and taxpayer of the United States. The amended complaint stated: “Roger Brox-ton sues in his individual capacity as a United States citizen, United States taxpayer, Alabama citizen and Alabama taxpayer.” On May 8, 2002, the defendants filed a renewed motion for a summary judgment arguing that Broxton’s “claimed status as a federal taxpayer does not protect his case from summary judgment because there is no recognized action under Alabama law for a federal taxpayer to challenge the legality, under state law, of the expenditure of federal funds” and that “[i]n this regard the Amended Complaint fails to state a claim for which relief can be granted.” The defendants concluded by stating that “[t]he plaintiff thus has no status to challenge the expenditure of the [federal] funds here either as a state taxpayer,or as a federal taxpayer.”

The. motion for a summary judgment was set for hearing on June 19, 2002, and the case was set for trial on July 1, 2002. On June 6, 2002, the defendants filed the affidavit of John Powell, the contracts and grants administrator for the Alabama Historical Commission, in support of their renewed motion for a summary judgment. In his affidavit, Powell stated:

“The Capitol Landscaping Project is a state project that is funded by Federal Transportation Enhancement grant funds, which come to the State of Alabama from the Federal Highway Administration. The source of the funding for this project ... is controlled by an initial agreement and a supplemental agreement between the state agencies involved — the [Alabama Historical] Commission, the State Department of Finance, and the State Department of Transportation. Under the initial agreement, entered into in September 2000, all of the amount covered by that agreement, $250,000, was to be federal funds, with no state funds involved.... Under the supplemental agreement, entered into in April 2001, the entire amount of the project, approximately $5.69 million, was to come from federal funds, with no state funds involved.... This funding scheme would cover expenditures for the entire project, including all expenditures that have occurred up to now and all future expenditures.”

Powell concluded by stating: “According to the agreements between the state agencies involved in this project, all expenditures on the project, including those to be made in the future, will come solely from federal funds. No state funds will be used in this project.” Attached to the affidavit were copies of the initial agreement dated September 20, 2000, and the supplemental agreement dated April 26, 2001. Also attached to the affidavit was an invoice directed to the Alabama Department of Transportation showing that $199,730.98 of the funds had already been reimbursed from federal funds and that only $54,554.62 remained to be paid.

On June 14, 2002, Broxton submitted his statement in opposition to the defendants’ motion for a summary judgment, in which he made the following arguments to the trial court: (1) that the defendants did not adequately document their claim that federal funds had been used to reimburse the Alabama Historical Commission for funds expended on the landscaping project; (2) that, contrary to the defendants’ assertion, state funds had been used and would be used on the landscaping project, because state money would first be paid to suppliers and then would be reimbursed from federal funds; and (3) that Broxton had standing to challenge the landscaping project regardless of whether state or federal funds were used. Broxton attached various documents that the defendants had produced during discovery. Those documents included: vouchers paid to an architect, purporting to show that state funds had been used to pay the architect; a letter from then Governor Siegelman to Dr. Warner postponing the landscaping project, “until the State of Alabama is in a better financial position to continue the review and discussion of your recommendations”; an undated handwritten note to Elizabeth Brown, a former acting director of the Alabama Historical Commission, stating that Richard Rybka, an architect, is “to be paid from another source of funding and will not be included in the federally aided transportation enhancement project”; and various other documents, letters, and copies of state and federal laws and regulations.

In response, the defendants filed a motion to strike; they attached to their motion the affidavits of Elizabeth Brown and Lamar McDavid, director of the bureau of finance of the Alabama Department of Transportation. In arguing their motion they specifically pointed out that the handwritten note was in fact a draft of a letter and was inadmissible on the ground of hearsay, because the draft was undated, there was no indication that the draft was ever sent, and the draft was irrelevant because the words “to be paid from another source of funding,” did not indicate that state funds would be used.

In her affidavit, Elizabeth Brown stated that she was the former acting director of the Alabama Historical Commission and the present director of the historic preservation division of the Alabama Historical Commission and that Richard Rybka, an architect with Veterans Landscaping, performed certain services as a part of a project unrelated to the landscaping project, and that there were no future plans to use the services of Rybka in connection with the landscaping project.

In his affidavit, McDavid stated that eight requests for reimbursement for various amounts had already been submitted to the Federal Highway Administration, and that, at the time of the affidavit, seven of those requests had been paid.

On June 19, 2002, the trial court held a hearing on the motion for a summary judgment, and on August 14, 2002, filed its order; that order stated, in pertinent part:

“The Defendants having filed a motion for summary judgment, the matter came before the Court for hearing on June 19, 2002. After hearing argument and considering the affidavits and other exhibits filed by both parties, the Court makes the following findings:
“1. The complaint as originally filed was based upon [Broxton’s] status as a state taxpayer and sought to enjoin the expenditure of state funds on certain aspects of a landscaping project affecting the Capitol grounds. The Defendants, Don Siegelman, [then] Governor of Alabama, and Dr. Lee H. Warner, Executive Director of the Alabama Historical Commission, filed for summary judgment on the ground that the money to be spent on the challenged activities would be federal funds from a federal grant. In response, [Broxton] amended his complaint to assert in addition his status as a federal taxpayer.
“2. If the money to be used here is in fact from federal funds, [Broxton], under his original complaint lacks standing to challenge the expenditure of this money. The amendment of the complaint to include [Broxton’s] status as a federal taxpayer does not grant standing to [Broxton] because taxpayer lawsuits under Alabama law appear to be limited to state taxpayers challenging the expenditure of state funds.
“3. The affidavits and supporting exhibits filed by the Defendants show that the overall project of which the challenged activities are a part is governed by a contract between three state agencies — the Alabama Historical Commission, the Department of Finance, and the Department of Transportation — and that all spending under that contract will ultimately come from federal funds. Under the contractual scheme, the Alabama Historical Commission will pay contractors from its funds, and then seek reimbursement from the Department of Transportation, which will in turn request reimbursement from the Federal Highway Administration. The contract makes clear that all future spending for this project will come ultimately from federal funds and thus all cost will be to the federal government; for this reason there is no state spending to enjoin.
“For the above reasons the Court holds that there is no dispute as to material fact, that the challenged activities will involve federal funds only, that [Broxton] lacks standing, and that the Defendants are entitled to judgment in their favor as a matter of law. Accordingly, it is hereby Ordered that judgment is entered in favor of the Defendants and against [Broxton].”

Broxton filed a motion to vacate the judgment on September 11, 2002; that motion was denied on September 16, 2002. Brox-ton then timely filed this appeal.

Standard of Review

The standard of review for a summary judgment has been stated many times. In Rosen v. Montgomery Surgical Center, 825 So.2d 735, 737 (Ala.2001), this Court stated:

“Our review of a summary judgment is de novo.
“ ‘In reviewing the disposition of a motion for summary judgment, “we utilize the same standard as the trial court in determining whether the evidence before [it] made out a genuine issue of material fact,” Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988), and whether the movant was “entitled to a judgment as a matter of law.” Wright v: Wright, 654 So.2d 542 (Ala,1995); Rule 56(c), Ala. R. Civ. P. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the nonmov-ant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Evidence is “substantial” if it is of “such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” Wright, 654 So.2d at 543 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)). Our review is further subject to the caveat that this Court must review- the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So.2d 359 (Ala.1993); Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990).’
“Hobson v. American Cast Iron Pipe Co., 690 So.2d 341, 344 (Ala.1997).”

I.

Both parties agree that a taxpayer has standing to sue where the taxpayer is challenging the expenditure of state funds, see, e.g., Hunt v. Windom, 604 So.2d 395 (Ala.1992). But the parties disagree on the question whether Broxton offered substantial evidence indicating that state funds were being used, which is critical to our resolution of the question of standing to sue. In considering the issue of standing to sue, we will first address the question whether state funds were used in the landscaping project, which will necessarily address the question whether a plaintiff has standing to challenge the state’s use of federal funds.

Broxton argues:

“The only fact asserted by defendants (movants) in their Narrative Summary of Facts in their Motion for [a] Summary Judgment is: ‘The money which will be used for this project, however, will come entirely from a federal grant from the Federal Highway Administration.’ The defendants have failed to produce the above federal grant and admit that no grant application was submitted, although they signed an agreement that it had been developed, submitted and approved. Thus, the primary fact set forth in the defendants’ narrative summary of facts is in dispute from the outset, because the trier of fact is asked to believe that a federal grant, which is completely absent from the record, having no particular terms and description, has been bestowed upon the Alabama Historical Commission without any written grant application that describes the project to be funded.
“The total evidence offered by the defendants as [a] prima facie [case] were affidavits and accompanying documents of Mark Driscoll, John Powell and Lamar McDavid and were offered only for the purpose of proving the alleged material fact of 100% funding from a federal grant for the Capitol Project, which was the sole basis of the defendants’ motion for [a] summary judgment. Rule 56(e) [Ala. R. Civ. P.] requires that Driscoll’s, Powell’s, and McDavid’s ‘affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.’ Driscoll’s, Powell’s, and McDavid’s affidavits do not meet these requirements and render the defendants’ motion for [a] summary judgment improperly supported.”

(Broxton’s Reply Brief, pp. 3-4.) The defendants argue that “[t]he Powell affidavit,[] together with the initial and supplemental agreements, shows that the state agencies involved have agreed, in a document binding among themselves, that no state funds will be used.” The defendants also argue that Lamar McDavid’s affidavit provides additional verification that all funds used for the landscaping project have been or will be federal funds. They argue:

“This submission establishes the Defendants’ prima facie case and shifts to Broxton the burden of showing that state funds were actually expended. This Broxton did not do.”

We agree with the defendants’ argument. The affidavits presented by the defendants are clear and unequivocal. They are based on the personal knowledge of the affiants, and they specifically state that no state funds have been or will be used on the landscaping project. Broxton offered no evidence to contradict the evidence presented by the defendants in support of their motion for a summary judgment, and as we view the state of the record, he offers only his dissatisfaction with the quality of the evidence, arguing that “there was never so much as an application for a federal grant completed and filed with any agency by the [Alabama Historical] Commission ..., much less a documented federal grant describing the project,” and that the “[defendants expressly admit in documents produced by the defendants in response to discovery that no application or other description was provided to federal authorities.” (Broxton’s Reply Brief, p. 7.) Applying the de novo standard of review, we cannot say that the trial court erred in finding that only federal funds were used in the landscaping project.

II.

Broxton next argues that the Alabama Historical Commission’s use of state funds, which are subsequently reimbursed with federal funds, constitutes an expenditure of state funds. Both parties agree that a taxpayer of the State of Alabama may file an action challenging what the taxpayer believes to be an illegal expenditure of state funds. This Court has recognized the right of a taxpayer to challenge the improper use of state funds. In Turnipseed v. Blan, 226 Ala. 549, 148 So. 116 (1933), this Court stated:

“We have recognized the right of a taxpayer to maintain a suit in equity to restrain an officer of a city or county from disbursing funds without statutory authority or under an unconstitutional statute. Travis v. First National Bank of Evergreen, 210 Ala. 620, 98 So. 890 [(1924)]; Allen v. Intendant & Councilmen of La Fayette, 89 Ala. 641, 8 So. 30, 9 L.R.A. 497 [(1890)]. Some states refuse to concede such right of action when the purpose is to enjoin a state officer from thus illegally disbursing state funds. But a great majority of the states which have considered the subject have applied such right of suit, though it relates to a state officer. This is said to be based upon the necessity for prompt action to prevent irremediable public injury. The taxpayer bears the same relation to state funds as to municipal funds, except in degree, a point which should not control. 58 A.L.R. 588 et seq., note.”

226 Ala. at 552, 148 So. at 118. In Hall v. Blan, 227 Ala. 64, 148 So. 601 (1933), this Court stated that “[a] taxpayer may maintain a suit to enjoin the state treasurer from diverting public funds, or disbursing same for unlawful purposes. He has a direct interest in seeing that taxes paid are devoted to the ends provided by law.” 227 Ala. at 73, 148 So. at 607. In Goode v. Tyler, 237 Ala. 106, 109, 186 So. 129, 131 (1939), this Court stated:

“[T]his Court is committed to the doctrine that a taxpayer may maintain a suit in equity to restrain a state officer in the unlawful disbursement of state funds. Tumipseed v. Blan, 226 Ala. 549, 148 So. 116 [(1933)]; Hall v. Blan, 227 Ala. 64, 148 So. 601 [(1933)], and authorities therein cited.
“Defendants insist this principle is here inapplicable as the agricultural fund does not contain taxes in the general sense and as derived from a general revenue bill.
“But we think the argument too greatly restricts the right of a taxpayer to maintain such a suit. As we have observed complainant pays general taxes as well as some of the very taxes imposed by the Agricultural Code, and this code not only provides for fees and stamp taxes and the like, but license taxes also. In a very broad sense these are forms of taxation (37 Corpus Juris 168, 169; 61 Corpus Juris 65 and 107) sufficient in the instant case to justify the maintenance of this suit by this complainant.”

In Hunt v. Windom, 604 So.2d 395 (Ala.1992), this Court stated: 210 Ala. 620, 98 So. 890 (1924); Reynolds v. Collier, 204 Ala. 38, 85 So. 465 (1920). The right of a taxpayer to challenge the unlawful disbursement of state funds likewise is unquestioned. Goode v. Tyler, 237 Ala. 106, 186 So. 129 (1939) (“.,. this Court is committed to the doctrine that a taxpayer may maintain a suit in equity to restrain a state officer in the unlawful disbursement of state funds.”); Hall v. Blan, 227 Ala. 64, 148 So. 601 (1933); Tumipseed v. Blan, 226 Ala. 549, 148 So. 116 (1933). The latter two cases dealt with the constitutionality of disbursements, while Goode involved expenditures to be made under purported statutory authority. The Supreme Court of Illinois wrote to this principle in Fergus v. Russel, 270 Ill. 304, 110 N.E. 130 (1915):

“[I]n Zeigler v. Baker, 344 So.2d 761 (Ala.1977), ... this Court held that [a taxpayer’s challenge] would lie and stated:

“ ‘In a long line of decisions this Court has recognized the right of a taxpayer to challenge, either as unconstitutional or as not conforming to statute, the expenditure of public funds by county officers. Court of County Revenues v. Richardson, 252 Ala. 403, 41 So.2d 749 (1949); Poyner v. Whiddon, 234 Ala. 168, 174 So. 507 (1937); Thompson v. Chilton County, 236 Ala. 142, 181 So. 701 (1938); Travis v. First Nat. Bank of Evergreen,

“ ‘ “We have repeatedly held that taxpayers may resort to a court of equity to prevent the misapplication of public funds, and that this right is based upon the taxpayer’s equitable ownership of such funds and their liability to replenish the public treasury for the deficiency which would be caused by the misappropriation.”

344 So.2d at 763-64.

“More recently, in Lee v. Bronner, 404 So.2d 627 (Ala.1981), the Court again rejected the argument that only the Governor or the attorney general may bring an action to challenge the illegal expenditure of state funds, and in that case the Court quoted from Zeigler v. Baker, supra:

“ ‘ “If a taxpayer does not launch an assault, it is not likely that there will be an attack from any other source, because the agency involved is usually in accord with the expenditure. There may be instances in which the affected public official might pursue the matter. The Attorney General would be an appropriate officer to bring such a suit, but in some instances this is not done and it is in such cases that it is only the taxpayer’s attack which preserves the public treasure.” ’
404 So.2d at 629 (Zeigler was quoting from Department of Administration v. Home, 269 So.2d 659 (Fla.1972)).”

604 So.2d at 396-97 (emphasis added).

Broxton argues that “[t]he major controlling factor of this Capitol [Landscaping] Project is the initial disbursement of State funds, not federal funds reimbursement,” and that “state funds were used (expended) and remained unreimbursed for a period of 4 to 7 months before being allegedly reimbursed with federal funds.” (Broxton’s Reply Brief, p. 19, emphasis in original.) The defendants counter this argument by stating that “[tjaxpayer lawsuits challenge the expenditure of state tax funds.... While state funds are somehow utilized in reimbursement, they are not ultimately expended because they are replaced by federal funds.” (Defendants’ Brief, p. 11.)

We agree with the position argued by the defendants. As stated above, the right of a taxpayer to sue “ ‘ “is based upon the taxpayer’s equitable ownership of such funds and their liability to replenish the public treasury for the deficiency which would be caused by the misappropriation.” ’ ” Hunt v. Windom, 604 So.2d at 396-97 (quoting Zeigler v. Baker, 344 So.2d 761, 763 (Ala.1977), quoting in turn, Fergus v. Russel, 270 Ill. 304, 314, 110 N.E. 130,135 (1915)).

As we view the holdings of our cases, it is this liability to replenish the public treasury through the payment of taxes that gives a plaintiff in a taxpayer’s action standing. In this case, it is clear that federal funds were used to replenish the state funds that were temporarily used; because the taxpayer will not face the liability of replenishing the state funds, the trial court did not err in holding that Brox-ton does not have standing to sue. Brox-ton also argues that state funds are used, because at the moment of the reimbursement, the federal funds become state funds, and the property of the state. Again, this argument must fail, because as stated above, it is the liability to replenish public funds that gives a taxpayer standing to sue, and there is no question that here there is no liability to replenish state funds.

III.

Broxton further argues that he has standing to sue where a state official uses or expends federal funds in violation of state or federal law. Broxton cites Alabama State Board of Education v. McClain, 810 So.2d 773 (Ala.2001), as authority for the proposition that he has standing to sue when a case “involv[es] the expenditure of only federal funds by a state agency.” He argues as follows:

“In E.B. McClain v. Alabama State Board of Education, CV 96-184-1, 1998, [Ex parte Alabama State Board of Education, 810 So.2d 773 (Ala.2001)] the same Circuit Court for Montgomery County that denied plaintiff Roger Brox-ton standing to challenge the use of federal funds, granted standing to E.B. McClain to challenge the use of federal funds. In his Statement In Opposition to Motion For Summary Judgment, E.B. McClain stated ‘this case is analogous to the taxpayer cases involving an unlawful disbursement of funds rather than a collection of taxes.’ Although the standing issue was not tried in this Court, E.B. McClain was allowed standing in this Supreme Court to be heard concerning his motion for attorney fees.”

(Broxton’s Reply Brief, p. 32.) Broxton also cites Hunt v. Windom, supra; Zeigler v. Baker, supra; and Powers v. United States Fidelity & Guaranty Co., 236 Ala. 389, 182 So. 758 (1938), to support his contention that “it is the unlawful disbursement or expenditure of funds that have become property of the State, and not the source of funds, whether originally from federal, state or other sources that allows a taxpayer standing in Alabama courts.” (Broxton’s Brief, p. 16.)

As we view our caselaw, the requirement for standing in a taxpayer lawsuit is the expenditure of state funds, as spelled out in Runt v. Windom, supra. As we understand Broxton’s argument, he claims that the reimbursement here is contrary to federal statutory and regulatory guidelines, even though the reimbursement has already occurred. It would appear to us, as the defendants argue, that “[t]he question of standing here turns upon an issue of fact: are state funds to be expended on this project?” Based on the record before us, we do not believe that there is any evidence to show that the funds expended for the landscaping project were “state funds,” as that term is used in our cases.

Based on the foregoing, we hold that it is the “liability to replenish the public treasury through the payment of taxes that gives a [taxpayer] plaintiff standing,” not the mere expenditure of funds, regardless of their source. For that reason, we hold that the trial court did not err in holding that Broxton lacks standing, and we affirm its judgment.

This opinion was prepared by retired Justice Hugh Maddox, sitting as a Justice of this Court pursuant to § 12-18-10(e), Ala.Code 1975.

AFFIRMED.

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

      . Broxton also argues that the proposed project violates both state and federal law and that it constitutes an unlawful use of state land. Because we affirm the judgment of the trial court that Broxton lacks standing to sue, we do not address those arguments.
      We note that the defendants, then Governor Siegelman and Dr. Lee Warner, filed a motion to dismiss this appeal for lack of jurisdiction because of an alleged absence of a justiciable controversy. In their motion, the defendants alleged that on January 17, 2002, then Governor Siegelman “had decided not to approve ... the landscaping project at that time and was ordering the [Alabama Historical] Commission to suspend all recommendations regarding the proposed changes until the financial position of the Stale had improved.” The defendants further alleged that the Alabama Historical Commission has halted all work and that “no payments to contractors are anticipated until the Governor authorizes further work.” Further, the defendants stated that "[t]his Court may take judicial notice of the [election of Governor Riley] on November 5, 2002,” and "[b]ecause the responsibility for any future decision as to the landscaping project will soon be in the hands of Governor-elect Riley, it cannot be said whether approval of the landscaping project will be forthcoming in the near future or ever.”
      This Court denied the motion to dismiss the appeal on January 9, 2003.

      . Attorney General Pryor’s motion to dismiss stated:
      “Bill Pryor, the Attorney General of Alabama, has no authority or role in the activities authorized under § 41-9-261 either under that section or under.any other provision of law, and [Broxton] in his complaint makes no claims to the contrary. In the complaint [Broxton] states only that Bill Pryor is served pursuant to Rule 4 of the Rules of Civil Procedure and not that he is a proper party to this action.”

      . John Powell's affidavit reads as follows:
      "1. I am the Contract and Grants Administrator for the Alabama Historical Commission ... and have held this position since August 31, 1984. Among my duties in this position is to administer funds coming to the ' [Alabama Historical] Commission and to ensure compliance with the terms of the particular grant agreement. I have personal knowledge of the facts contained in this affidavit.
      "2. The Capitol Landscaping Project is a state project that is funded by Federal Transportation Enhancement grant funds, which come to the State of Alabama from the Federal Highway Administration. The source of the funding for this project ... is controlled by an initial agreement and a supplemental agreement between the state agencies involved — the [Alabama Historical] Commission, the State Department of Finance, and the State Department of Transportation. Under the initial agreement, entered into in September 2000, all of the amount covered by that agreement, $250,000, was to be federal funds, with no state funds involved.... Under the supplemental agreement, entered into in April 2001, the entire amount of the project, approximately $5.69 million, was to come from federal funds, with no state funds involved. ... This funding scheme would cover expenditures for the entire project, including all expenditures that have occurred up to now and all future expenditures.
      “3. Under the agreements suppliers send bills to the [Alabama Historical] Commission, where they are reviewed and paid if in order. After payment the [Alabama Historical] Commission seeks reimbursement from the Alabama Department of Transportation; under the agreement this reimbursement would come from federal funds. Preparing requests on behalf of the [Alabama Historical] Commission for reimbursement falls within my duties as Contracts and Grants Administrator.
      "4. As of the date of this affidavit a total of $254,285.60 has been paid to suppliers for work on this project. As is shown by the request for reimbursement submitted by the [Alabama Historical] Commission to the Department of Transportation, all of this reimbursement was to come from federal funds....
      . “5. According to the agreements between the state agencies involved in this project, all expenditures on the project, including those to be made in the future, will come solely from federal funds. No state funds will be used in this project.”

      . Lamar McDavid's affidavit states:

        "1. I am the Director of the Bureau of Finance of the Alabama Department of Transportation. The Bureau of Finance has the responsibility for submitting to the Federal Highway Administration requests for reimbursement for expenditures to be funded by grants from that federal agency, including Transportation Enhancement Grants. In my service as the Director of the Bureau of Accounts and Finance I have gained personal knowledge of the matters contained in this affidavit.
      "2. Attached to this affidavit ... is a copy of a computer spreadsheet which displays the record of billing and receipts for reimbursement between the Department of Transportation and the Federal Highway Administration for the Capitol Landscaping Project, Project No. STPTE-0099(66) and STPTE-0099(66)S-1. The computer data that this reflects and this computer printout of this data constitute the official record of these transactions of the Department of Transportation.
      “3. [The computer spreadsheet] shows that eight requests for reimbursement for various amounts have been made by the Department of Transportation to the Federal Highway Administration, and that reimbursements have been received for seven of these requests. These reimbursements represent reimbursement from federal grant funds for expenditures on this project.”


source: Caselaw Access Project

author: PITTMAN, Judge. YATES, Presiding Judge, MURDOCK, Judge,

license: Public Domain

text:
    Lily Heart SOL v. Richard Ernest MILLER, Jr.
    2001066.
    Court of Civil Appeals of Alabama.
    June 7, 2002.

      Gary L. Armstrong of Armstrong, Vaughn & Scroggins, Daphne, for appellant.
    Charles H. Dodson, Jr., of Sims, Grad-dick & Dodson, P.C., Mobile, for appellee.
   PITTMAN, Judge.

Lily Heart Sol sued Richard Ernest Miller, Jr., for a divorce after 11 years of marriage. She requested periodic alimony, custody of and child support for their one child, and a division of marital property and debts. Following the presentation of ore tenus evidence, the trial court divorced .the parties; awarded the wife sole physical custody of the child and $719 monthly in child support; awarded the husband visitation with the child; divided the marital assets, including a family trust; divided the marital debts; and awarded the wife $1,000 per month as periodic alimony. The wife and the husband each filed a postjudgment motion. The trial court granted the husband’s postjudgment motion in part and provided that the husband would pay the periodic-alimony award for only 12 months. The wife appeals.

The wife argues that, in several ways, the trial court’s division of property was inequitable and its periodic-alimony award was insufficient. We conclude that the dispositive issue as to these assignments of error is the wife’s contention that the trial court erred by finding that the Sol/Miller Revocable Living Trust was a marital asset and awarding the husband an interest in the trust.

Before the wife filed for divorce, the husband signed an agreement that stated, in pertinent part:

“I, the [husband], do hereby release, relinquish, forego, renounce, give up and forever abandon any and all interest I may have as a beneficiary of that certain Sol/Miller Revocable Living Trust dated December 30, 1992, ... including, but not limited to, my interest as a current beneficiary under said trust, any right I may have to insist that the trust be perpetuated beyond this date and any right I may have to the distribution of any assets of the trust upon its dissolution.”

The husband does not contend that the release he signed is invalid; rather, he contends that, because the trust is marital property, and in spite of the fact that he signed a release relinquishing his right as a beneficiary and his right to receive any assets from the trust, the trial court has the power to award him assets from the trust as a part of the divorce judgment. We disagree.

As is the case with a contract, whether a release is ambiguous is a question of law. Baker v. Blue Circle, Inc., 585 So.2d 868 (Ala.1991). As stated above, the release the husband signed unambiguously releases any beneficial interest in the trust and any right to receive any assets from the trust. A release, like a contract, is enforced as written. McNeely v. Spry Funeral Home of Athens, Inc., 724 So.2d 534 (Ala.Civ.App.1998), citing § 12-21-109, Ala.Code 1975. We conclude that the husband, by signing the release, relinquished his right to any distribution of the trust assets, including a distribution pursuant to a divorce judgment. Therefore, the trial court erred by awarding the husband any assets from the trust.

The division of property and the award of alimony are interrelated, and the entire judgment must be considered in determining whether the trial court abused its discretion as to either issue. See O’Neal v. O’Neal, 678 So.2d 162, 164 (Ala.Civ.App.1996), citing Montgomery v. Montgomery, 519 So.2d 525, 526 (Ala.Civ.App.1987). Because we hold that the husband is not entitled to any assets from the trust, the remaining property division and the periodic-alimony award must be reexamined. Therefore, the trial court’s judgment is reversed insofar as it divided the marital property and the debts and awarded periodic alimony. The trial court is instructed on remand to make an equitable division of property and to recalculate the periodic-alimony award in light of the wife’s exclusive right to the Sol/Miller Revocable Living Trust.

The wife also argues that the trial court erred by not finding a child-support arrearage because the husband had not complied with the child-support orders. The wife claims that the arrearage arises from the fact that the husband did not start paying the child support ordered by the trial court until the date the trial court entered its judgment; the wife argues that the child support ordered in the divorce judgment should be retroactive to the date of the parties’ separation. The amount of child support the trial court ordered the husband to pay was slightly lower than the child support ordered in the final judgment. Therefore, there is no child-support arrearage, because the husband satisfied the court’s interim order and final judgment.

The wife next argues that the trial court erred by not stating that one of the obligations of the parties was the child’s medical expenses not covered by insurance. The judgment ordered the husband to pay the child’s medical insurance. The judgment did not provide for the payment of uninsured medical expenses. The wife does not argue that the trial court’s judgment in this regard is inequitable. The wife requests that this court reverse that portion of the trial court’s judgment and instruct the court to order the husband to pay the uninsured medical expenses. We conclude that this issue is more properly the subject of a petition to modify the divorce judgment, and we will not reverse the trial court’s judgment as to this issue.

The wife lastly argues that the trial court erred by not addressing the issue of college expenses for the parties’ 11-year-old son. This court has consistently held that an award of postminority educational support based on consideration of the Ex parte Bayliss, 550 So.2d 986 (Ala.1989), factors when a child is still a few years from attending college is reversible error. See Martin v. Martin, 624 So.2d 192 (Ala.Civ.App.1993) (holding that trial court should not consider postminority educational support for children ages 11, 13, and 16 because such consideration is premature in light of the Bayliss factors). Therefore, the trial court properly did not address the issue of college expenses for the 11-year-old son.

The trial court’s judgment is affirmed in part and reversed in part, and the cause is remanded for proceedings consistent with this opinion.

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

THOMPSON, J., concurs.

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

CRAWLEY and MURDOCK, JJ., dissent.

YATES, Presiding Judge,

concurring in the result.

Section 30-4-9, Aa.Code 1975, provides:

“The husband and wife may contract with each other, but all contracts into which they enter are subject to the rules of law as to contracts by and between persons standing in confidential relations.”

Such contracts between a husband and wife, whether made before or after marriage, are recognized as valid. Tibbs v. Anderson, 580 So.2d 1337 (Ala.1991); Campbell v. Campbell, 371 So.2d 55 (Ala.Civ.App.1979). These agreements are subject to close scrutiny. § 30-4-9; Payne v. Payne, 284 Ala. 699, 228 So.2d 15 (1969).

In Tibbs, supra, the wife signed an agreement, just two hours after the couple married, that provided that she waived her right to any interest in real or personal property the husband acquired before the marriage. When the husband died, the wife sought an elective share of his estate. The trial court determined that her claim was barred. The supreme court held that § 43-8-72 permits a spouse to waive all statutory rights in the other spouse’s property before or after marriage. The court noted that although the parties presented their arguments under caselaw interpreting prenuptial agreements, a husband and wife can contract with each other pursuant to § 30-4-9, and the judgment could have been affirmed on that ground.

In Payne, supra, the wife had started divorce proceedings against the husband on several occasions, and she finally secured a divorce shortly after the husband had transferred his interest in a motel to her. The husband had purchased the motel in 1964. The husband was hospitalized for alcoholism in April and again in May 1966. In September 1966, the husband transferred his interest in the motel to the wife. In November 1966, the husband was hospitalized again. He argued that the wife exercised undue influence over him when she was the dominant party in their relationship. The court held that the trial court did not err in refusing to set aside the conveyance.

Taylor v. Martin, 466 So.2d 977 (Ala.Civ.App.1985), involved two contracts between the parties who were then husband and wife. Both contracts, executed at different times, required the wife to sign a joint federal income tax return with the husband for the preceding year, and in consideration of her signing the return, the husband agreed to make periodic payments to the wife during the next school year to be used for college expenses for the wife’s daughter from a previous marriage. Shortly after the execution of the second contract, the wife filed for a divorce; the divorce was later granted. She sued the husband, alleging a breach of both contracts because he failed to make some of the payments under each of the contracts. The trial court found in favor of the wife; this court affirmed.

In the present case, the parties were married in 1988. In 1993, the wife inherited over $500,000, which was placed into a trust. The husband has a degree in accounting; he also has a master’s degree in business from Harvard University. The husband was named as a cotrustee. It appears that since the time of the wife’s inheritance, the wife worked only seasonally and the husband has held relatively low-paying jobs and that the parties have lived off the assets of the trust. On December 10, 1999, the husband resigned as cotrustee. He testified that the wife asked him to resign because of the way he had handled a “margin call” on an account. The husband then moved to Pennsylvania in search of better employment. On February 28, 2000, he signed an agreement releasing all his interest in the trust. The release provided:

“Know all men by these presents that for and in consideration of $10.00 and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, I, the undersigned Richard Ernest Miller, Jr., do hereby release, relinquish, forgo, renounce, give up and forever abandon any and all interest I may have as a beneficiary of that certain Sol/Miller Revocable Living Trust dated December 30,1992, consisting of nineteen typewritten pages, executed by myself and Lily Heart Sol, including, but not limited to, my interest as a current beneficiary under said trust, any right I may have to insist that the trust be perpetuated beyond this date and any right I may have to the distribution of any assets of the trust upon its dissolution.
“Further, I hereby release, relinquish, forgo, renounce, give up and forever abandon any right I may now have, or may have ever had, to claim or contend that the arrangement between myself and Lilly Heart Sol whereby we both executed the above described trust and our separate last wills and testaments constituted joint and mutual wills or a contract to make a will, and I hereby confirm the right of Lily Heart Sol to make a new will without any restriction whatever.
“And finally further, I hereby ratify and confirm my resignation as a trustee of the above described trust by typewritten instrument signed by me dated December 10,1999.”

On March 22, 2000, the husband testified that the parties’ son had called him to wish him “happy birthday,” and that he had spoken with the wife and stated “I’d made a decision, I was coming home and I wanted to try to save the marriage.” On March 24, 2000, the wife filed a complaint for divorce.

The husband admitted in his testimony that he voluntarily signed the release agreement drafted by the wife’s attorney. It is clear from his testimony and from the fact that he served as cotrustee that he knew the full value of the trust when he relinquished his interest.

Section 30-4-9 allows husbands and wives to enter into contractual transactions with each other. That is, one spouse is allowed to convey to the other his or her interest in marital property before divorce or death. Doing so takes the property out of the marital estate, leaving it as the separate property of the spouse to whom it is conveyed. The husband was well-educated, and sophisticated in business matters, and he admitted that he was aware that he was relinquishing his interest in the trust. Although the husband stated that he signed the agreement because of his desire to reconcile with the wife, he admitted that he was not coerced into signing the agreement. While I agree that the trust was used as marital property during the marriage, the trust became the separate property of the wife through a valid, express agreement signed by the husband relinquishing his rights to the distribution of any assets of the trust.

Based on the foregoing, I concur in the result.

MURDOCK, Judge,

dissenting.

In addressing the revocable family trust at issue, the trial court found as follows:

“After the wife received her inheritance, a family trust was created. The court deems that since the wife’s inheritance was used for the support and maintenance of the family that it became a marital asset. The court further finds from the evidence that the trust was created for tax saving purposes and to avoid probate. The court would therefore treat the assets in the trust as part .of the marital estate and disregard the trust entity.”

In essence, without expressing an opinion as to the efficacy of the trust vis:a-vis third parties (i.e., “for tax saving purposes and to avoid probate”), the trial court concluded that, as between the parties, the trust did not prevent the.property at issue from being treated as marital property for purposes of Ala.Code 1975, § 30-2-51(a). Under the equitable principles reflected in § 30-2-51(a) and in our caselaw generally with respect to property division upon divorce, and under the unique facts of this case, and given the absence of any authority having been cited by the wife for the proposition that the trust insulates this property from treatment under § 30-2-51(a), I cannot conclude that the judgment of the trial court should be reversed as to this issue.

In addition, I would note that, although the largest asset placed into the trust herein at issue was the wife’s inheritance of over $500,000 worth of Regions Bank stock, the record shows that the husband put $90,000 of his own funds into the trust and that various other marital properties with substantial value were also placed into the trust. Among the trust assets were the parties’ “home place” and two condominiums in Colorado. One of the condominiums, valued at $100,000, is the only trust asset the husband was awarded in the divorce judgment.

Notwithstanding the fact that both parties had contributed assets to the trust, the wife argues that by signing the release in question, the husband gave up his rights to receive any portion of the property. Even if we accept the proposition that by signing the release at issue the husband lost certain rights, the rights he released thereby were only his rights as beneficiary of the trust.

Further, even if the assets of the trust became the separate estate of the wife upon the husband’s signing of the release, § 30-2-51(a) would still require us to affirm the trial court. That statute provides, in part, that in making a property division in a divorce:

“the judge may not take into consideration any property acquired ... by inheritance or gift unless the judge finds from, the evidence that the property, or income produced by the property, has been used regularly for the common benefit of the parties during the marriage.”

(Emphasis added.) In this case, there is no dispute that substantial amounts of both the income and the assets in question were used for the common benefit of the parties during their marriage.

As noted, the wife cites no authority for the proposition that assets placed in a revocable trust of the nature of the trust at issue in this case are somehow insulated from the equitable principles of property division set out in § 30-2-51 and in our caselaw. I believe the trial court’s judgment was consistent with those equitable principles.

In light of the foregoing, I respectfully dissent.

CRAWLEY, J., concurs.

      . During 1998 to 1999, the husband earned approximately $50,000. However from 1992 to 1997 and during 2000, he did not earn over $10,000 year.

      . Neither party argues that, because the husband also resigned as trustee and the wife thereby became both the sole beneficiary and the sole trustee, the merger doctrine applied in First Alabama Bank of Tuscaloosa v. Webb, 373 So.2d 631 (Ala.1979), also is applicable in this case. Even if the merger doctrine were applied in this case so as to support the conclusion that the property of the trust became the separate estate of the wife, the discussion in this writing assumes that this property is the separate estate of the wife and explains why I nonetheless would affirm the trial court's division of that property.


author: WOODALL, Justice.

text:
    Ex parte Richard Ernest MILLER, Jr. (In re Lily Heart Sol v. Richard Ernest Miller, Jr.).
    1011787.
    Supreme Court of Alabama.
    Jan. 24, 2003.

      Charles H. Dodson, Jr., and Joseph D. Steadman of Sims, Graddick & Dodson, P.C., Mobile, for petitioner.
    Patrick B. Collins, Daphne, for respondent.
   WOODALL, Justice.

Lily Heart Sol and Richard Ernest Miller, Jr., were divorced by the Baldwin Circuit Court. Lily appealed from the divorce judgment. The Court of Civil Appeals concluded that the trial court had erred by awarding Richard an asset from a family trust. The main opinion of the Court of Civil Appeals stated:

“Because we hold that the husband is not entitled to any assets from the trust, the remaining property division and the periodic-alimony award must be reexamined. Therefore, the trial court’s judgment is reversed insofar as it divided the marital property and the debts and awarded periodic alimony. The trial court is instructed on remand to make an equitable division of property and to recalculate the periodic-alimony award in light of the wife’s exclusive right to the [trust].”

Sol v. Miller, 861 So.2d 386, 388 (Ala.Civ.App.2002). The Court of Civil Appeals affirmed the trial court’s judgment in all other respects.

We granted Richard’s petition for certio-rari review to consider the Court of Civil Appeals’ holding that the trial court had erred in awarding Richard an asset from the trust. We reverse the judgment of the Court of Civil Appeals insofar as that judgment reversed portions of the trial court’s judgment, and we remand.

I.

The relevant facts are not in dispute. Lily and Richard were married in 1988. In 1993, Lily inherited more than $500,000, which was placed in the Sol/Miller Revocable Living Trust (“the trust”), which had been created in 1992. Later, Richard placed his own funds into the trust, and Lily and he placed several marital properties, including their residence and two condominiums in Colorado, into the trust. “There is no dispute that the property of the [t]rust was used for the common benefit of the parties during the marriage.” Respondent’s brief, at 23.

On February 28, 2000, Richard signed an agreement entitled “Release and Renunciation of Beneficial Interest in Trust” (“the release”), which stated, in pertinent part:

“KNOW ALL MEN BY THESE PRESENTS that for and in consideration of $10.00 and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, I, the undersigned Richard Ernest Miller, Jr., do hereby release, relinquish, [forgo], renounce, give up and forever abandon any and all interest I may have as a beneficiary of that certain Sol/Miller Revocable Living Trust dated December 30, 1992, consisting of nineteen typewritten pages, executed by myself and Lily Heart Sol, including, but not limited to, my interest as a current beneficiary under said trust, any right I may have to insist that the trust be perpetuated beyond this date and any right I may have to the distribution of any assets of the trust upon its dissolution.”

(Emphasis added.) On March 24, 2000, Lily sued Richard for a divorce.

II.

Following a hearing at which ore tenus evidence was presented, the trial court divorced the parties. With regard to the trust assets, the trial court found:

“After the wife received her inheritance, a family trust was created. The court deems that since the wife’s inheritance was used for the support and maintenance of the family that it became a marital asset. The court further finds from the evidence that the trust was created for tax saving purposes and to avoid probate. The court would therefore treat the assets in the trust as part of the marital estate and disregard the trust entity.”

The trial court, in its divorce judgment, awarded Richard one trust asset, a condominium in Colorado. Lily appealed.

A majority of the Court of Civil Appeals agreed that by signing the release, Richard had relinquished his right to any distribution of the trust assets, including a distribution pursuant to a divorce judgment, and that, “[t]herefore, the trial court erred by awarding [Richard] any assets from the trust.” Sol v. Miller, 861 So.2d at 388. The propriety of those conclusions is before this Court on certiorari review.

III.

This Court recently stated the applicable standard of review:

“The standard, appellate courts apply in reviewing a trial court’s judgment awarding alimony and dividing property is well established:
“ ‘A trial court’s determination as to alimony and the division of property following an ore tenus presentation of the evidence is presumed correct. Parrish v. Parrish, 617 So.2d 1036 (Ala.Civ.App.1993). Moreover, issues of alimony and property division must be considered together, and the trial court’s judgment will not be disturbed absent a finding that it is unsupported by the evidence so as to amount to an abuse of discretion. Id’
“Morgan v. Morgan, 686 So.2d 308, 310 (Ala.Civ.App.1996).”

Ex parte Drummond, 785 So.2d 358, 360-61 (Ala.2000). The dispute in this case involves the effect, if any, of the release signed by Richard upon the trial court’s discretion to award trust assets to Richard, under the equitable principles reflected in § 30 — 2—51(a), Ala.Code 1975.

Section 30 — 2—51(a) provides:

“If either spouse has no separate estate or if it is insufficient for the maintenance of a spouse, the judge, upon granting a divorce, at his or her discretion, may order to a spouse an allowance out of the estate of the other spouse, taking into consideration the value thereof and the condition of the spouse’s family. Notwithstanding the foregoing, the judge may not take into consideration any property acquired prior to the marriage of the parties or by inheritance or gift unless the judge finds from the evidence that the property, or income produced by the property, has been used regularly for the common benefit of the parties during their marriage.”

(Emphasis added.) The parties agree that the trust assets, including the assets acquired by inheritance, were “used regularly for the common benefit of the parties during their marriage.” They disagree, however, over whether the release destroyed the authority of the trial court to award trust assets to Richard in its divorce judgment.

Richard argues that he “may be awarded assets from [the] trust where the circuit court finds that the trust contains marital assets notwithstanding the fact that [he] signed a release of his interest as beneficiary of the trust shortly before the divorce proceeding was filed by [his wife].” Petition for writ of certiorari, at 2. On the other hand, Lily contends that “any claim that [Richard] had to the [t]rust assets [was] terminated when he willingly and knowingly released his interests.” Respondent’s brief, at 23. We agree with Richard. As Judge Murdock stated in his dissent to the main opinion of the Court of Civil Appeals:

“Notwithstanding the fact that both parties had contributed assets to the trust, the wife argues that by signing the release in question, the husband gave up his rights to receive any portion of the property. Even if we accept the proposition that by signing the release at issue the husband lost certain rights, the rights he released thereby were only his rights as beneficiary of the trust.”

Sol v. Miller, 861 So.2d at 392 (Murdock, J., dissenting).

Lily argues that “the release contract signed by [Richard] is valid and enforceable.” Respondent’s brief, at 23. We agree. See § 30 — 4—9, Ala.Code 1975 (“[t]he husband and wife may contract with each other”). However, a fundamental principle of contract construction is that “ ‘[w]here the parties express without ambiguity their intention, no court can alter the agreement, and no room for judicial construction is left.’ ” Arthur Rutenberg Homes, Inc. v. Norris, 804 So.2d 180, 185 (Ala.2001) (quoting Lilley v. Gonzales, 417 So.2d 161, 163 (Ala.1982)). The release, by its unambiguous terms, was limited to Richard’s rights “as a beneficiary of [the trust].” It makes no mention of, and can have no effect upon, Richard’s rights upon divorce. He released “any right ... to the distribution of any assets of the trust upon its dissolution” (emphasis added), not upon the dissolution of the marriage.

IV.

For the reasons stated above, the trial court did not err by awarding Richard an asset from the trust; such an award was well within the trial court’s discretion under § 30-2-51(a), and it was not precluded by the release signed by Richard on February 28, 2000. Therefore, we reverse the judgment of the Court of Civil Appeals insofar as that judgment reversed portions of the trial court’s judgment, and we remand the case with instructions for the Court of Civil Appeals to affirm the judgment of the trial court.

REVERSED AND REMANDED WITH INSTRUCTIONS.

MOORE, C.J., and HOUSTON, SEE, LYONS, BROWN, JOHNSTONE, HARWOOD, and STUART, JJ., concur.

      . According to Lily's complaint for divorce, most of the marital assets had been placed in the trust.


author: PITTMAN, Judge.

text:
    Lily Heart SOL v. Richard Ernest MILLER, Jr.
    2001066.
    Court of Civil Appeals of Alabama.
    April 25, 2003.
    Gary L. Armstrong of Armstrong, Vaughn & Scroggins, Daphne, for appellant.
    Charles H. Dodson, Jr., of Sims, Grad-dick & Dodson, P.C., Mobile, for appellee.
   After Remand from the Alabama Supreme Court

PITTMAN, Judge.

A portion of this court’s prior judgment has been reversed and the cause remanded by the Supreme Court of Alabama with instructions to affirm the judgment of the trial court. Ex parte Miller, 861 So.2d 392 (Ala.2003). In compliance with the Alabama Supreme Court’s opinion, that portion of this court’s prior judgment reversing the property-division and periodic-alimony provisions of the trial court’s judgment is set aside, the trial court’s judgment is reinstated, and the judgment of the trial court is affirmed in its entirety.

JUDGMENT REINSTATED; AFFIRMED.

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


author: CRAWLEY, Judge.

text:
    Juanita HEALY and Edward Healy v. Marcella MEDLOCK and State Farm Mutual Automobile Insurance Company.
    2010251.
    Court of Civil Appeals of Alabama.
    Sept. 6, 2002.
    Rehearing Denied Nov. 1, 2002.

      C. Blake West and Richard L. Collins, Cullman, for appellants.
    S. Wayne Fuller of Fuller & Willingham, Cullman, for Marcella Medlock.
    Hugh C. Harris, Cullman, for State Farm Automobile Insurance Company.
   CRAWLEY, Judge.

In 1998, Juanita Healy and her husband Edward Healy sued Marcella Medlock, alleging that Medlock’s negligence had caused an automobile collision and that they had suffered injuries in the collision. In 1999, State Farm Mutual Automobile Insurance Company, the Healys’ underin-sured-motorist (“UIM”) carrier, moved to intervene. The trial court granted that motion and added State Farm as a defendant.

Medlock died on August 18, 2000. Counsel for Medlock filed a suggestion of death on October 2, 2000. Six months and one week later, on April 9, 2001, counsel for Medlock filed a motion to dismiss for failure to substitute a party, pursuant to Rule 25(a)(1), Ala. R. Civ. P. The Healys filed a motion to substitute on April 13, 2001, alleging that on that date they had filed a petition to open the estate of Med-lock. After a hearing on April 17, the motion to dismiss was denied, and the case was set for trial. Discovery continued; the case was continued twice and was reset for the next trial docket after August 6, 2001.

On September 26, 2001, counsel for Medlock again moved to dismiss the case pursuant to Rule 25(a)(1) for failure to substitute a party. That motion alleged that a suggestion of death had been filed over a year earlier, that no estate had been opened, that no letters of administration had been issued, and that no substitution of parties had been made. The trial court granted the motion to dismiss on September 28.

The Healys filed a postjudgment motion, which the trial court denied. State Farm filed a motion to clarify, seeking a ruling on whether the dismissal was entered as to both defendants or only as to Medlock. The trial court answered that it had entered the dismissal as to all parties. The Healys appealed to the Alabama Supreme Court. The supreme court transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975. We affirm.

Rule 25(a)(1), Ala. R. Civ. P., states:

“(1) If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on the parties as provided in Rule 5 and upon persons not parties in the manner provided in Rule 4 for the service of a summons, and may be served in any county. Unless the motion for substitution is made not later than six months after the death is suggested upon the record by service of a statement of the fact of the death as provided herein for the service of the motion, the action shall in the absence of a showing of excusable neglect be dismissed as to the deceased party.”

(Emphasis added.) The trial court correctly dismissed the Healys’ action because they did not substitute a proper party within six months of the date Medlock’s death was suggested on the record and the suggestion served on the parties. Although the requirement that a motion to substitute a proper party for the deceased be made within six months is not absolute and the time for filing such a motion may be extended if the failure to comply with the rule is the result of excusable neglect, see Hayes v. Brookwood Hosp., 572 So.2d 1251 (Ala.1990); Moore v. Garner, 584 So.2d 488 (Ala.1991), there is no indication in this record that the Healys’ failure to substitute the proper party was due to excusable neglect. The Healys had nearly one year after the suggestion of death was filed to substitute a proper party for Med-lock. They failed to do so. The trial court could have granted the original motion to dismiss filed on April 9, 2001. Instead, the court gave the Healys extra time to make the substitution and did not dismiss the action for another five and one-half months. We find no error.

I.

The Healys argue that Medlock’s counsel, by continuing to defend the action after his first motion to dismiss was denied, waived the right to assert Rule 25(a)(1). In support of that argument, the Healys cite Matthews v. Matthews, 599 So.2d 1218 (Ala.Civ.App.1992), overruled on other grounds by Kissic v. Liberty Nat’l Life Ins. Co., 641 So.2d 250 (Ala.1994), and Hill v. Lyons, 550 So.2d 1004 (Ala.Civ.App.1989). Both cases, however, are inapposite to this case. In Hill, an administrator was appointed to represent the deceased party’s estate; however, no formal substitution of parties was made, and the administrator continued to defend the interests of the estate.- No motion to dismiss pursuant to Rule 25 was filed. Apparently, the first mention of Rule 25 was made on append, when this court observed:

“[U]nder appropriate circumstances, the formal requirements for the substitution of a party under Rule 25(a)[(l), Ala.] R. Civ. P., can be waived, and thus the exercise of jurisdiction is proper. As long as the ‘proper party’ actually defends the suit, such defense can cause a waiver of the right to formal substitution.”

Hill, 550 So.2d at 1006 (citation omitted).

Matthews does not support the Healys’ argument. That case dealt with postdi-vorce proceedings. The former wife died soon after the judgment of divorce was entered. No substitution of parties was made. The court stated:

“[T]he husband has taken no action inconsistent with his assertion of a right to dismissal. The record shows that he filed a suggestion of death on September 19, 1990, and that he has filed three motions pointing out that a proper party was lacking in the action initiated by the wife. In the third of these motions the husband sought dismissal under Rule 25(a)(1). Therefore, we find that the husband has not waived his right to dismissal under the rule.”

Matthews, 599 So.2d at 1221.

Here, counsel for Medlock filed a motion to dismiss six months and one week after he filed the suggestion of Medlock’s death. When the court denied that motion, thereby giving the Healys extra time to comply with the rule, counsel acceded to the court’s ruling but did not abandon his insistence upon compliance with the rule. He filed another motion to dismiss five and one-half months later. That course of conduct does not amount to a waiver.

II.

The Healys contend that, even if Medlock was properly dismissed, the trial court erred by dismissing State Farm, their UIM carrier, as a defendant. Citing Hogan v. State Farm Mutual Automobile Insurance Co., 730 So.2d 1157 (Ala.1998), overruled on other grounds, Williamson v. Indianapolis Life Insurance Co., 741 So.2d 1057 (Ala.1999); State Farm Mutual Automobile Insurance Co. v. Jeffers, 686 So.2d 248 (Ala.1996); and State Farm Automobile Insurance Co. v. Baldwin, 470 So.2d 1230 (Ala.1985), the Healys point out that “[o]ur supreme court has recognized a separate cause of action against the UIM carrier in matters where the plaintiff was precluded as a matter of law from suing or collecting from the actual tortfeasor.”

In Hogan, Jeffers, and Baldwin, the supreme court held that insured tortfeasors who were legally immune from liability couid be deemed “uninsured motorists” for purposes of allowing injured plaintiffs to recover uninsured-motorist benefits from their own automobile insurance carriers. In Hogan, the Guest Statute provided the alleged tortfeasor with a substantive defense to the plaintiffs negligence claim. In Jeffers and Baldwin, governmental immunity was the substantive defense that precluded the plaintiffs recovery against the tortfeasor. Hogan, Jeffers, and Baldwin were based on the rationale that the legislative policy of the uninsured-motorist statute did not allow an uninsured-motorist carrier to assert a defense against its own insured that would -“deny the otherwise valid claimof the [insured].” See Baldwin, 470 So.2d at 1234. Hogan, Jeffers, and Baldwin do not apply here because the Healys’ own procedural default — not a substantive defense available to the alleged tortfeasor — prevented the Healys’ recovery.

The judgment of the trial court is affirmed.

AFFIRMED.

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


author: MOORE, Chief Justice. JOHNSTONE, Justice

text:
    Ex parte Edward HEALY and Juanita Healy. (In re Juanita Healy and Edward Healy v. Marcella Medlock and State Farm Mutual Automobile Insurance Company).
    1020282.
    Supreme Court of Alabama.
    April 25, 2003.
    C. Blake West and Richard L. Collins, Cullman, for petitioners.
    Hugh C. Harris of Bland, Harris & McClellan, P.C., Cullman, for respondent State Farm Mutual Automobile Insurance Company.
   MOORE, Chief Justice.

The petition for the writ of certiorari is denied. In denying the Healys’ petition, this Court does not wish to be understood as approving or disapproving the holding by the Court of Civil Appeals to the effect that the Healys’ “procedural default” in pursuing their claim against the estate of the underinsured motorist “prevented the Healys’ recovery” against the underin-sured-motorist insurance carrier itself. See State Farm Fire & Cas. Co. v. Griffin, 51 Ala.App. 426, 286 So.2d 302 (1973); and State Farm Fire & Cas. Co. v. Lambert, 291 Ala. 645, 285 So.2d 917 (1973). In petitioning this Court, the Healys did not seek review of the holding in favor of the underinsured-motorist insurance carrier.

WRIT DENIED.

HOUSTON, SEE, LYONS, HARWOOD, WOODALL, and STUART, JJ., concur.

JOHNSTONE, J., concurs specially.

JOHNSTONE, Justice

(concurring specially).

While I concur, I would prefer that our denial indicate more skepticism about the specified holding by the Court of Civil Appeals.