author: JOHNSTONE, Justice. SEE, Justice

text:
    Ex parte Annie Jean HELMS, Mary Jon Brown, Sharon Wallace, Susan Mitchum, and Robert Grimes. (In re Pamela Morrow and Ruth H. Morrow v. Annie Jean Helms et al.)
    1001475.
    Supreme Court of Alabama.
    June 13, 2003.

      Robert A. Huffaker and Thomas A. Treadwell of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery (reply brief filed by Robert A. Huffaker and Ben C. Wilson of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery); and L. Merrill Shirley, Elba, for petitioners.
    C. Clay Torbert III and Richard H. Allen of Capell & Howard, P.C., Montgomery, for respondents.
   JOHNSTONE, Justice.

Introduction

The petitioners now before us, Annie Jean Helms, Mary Jon Brown, Sharon Wallace, Susan Grimes Mitchum, and Robert Grimes (hereinafter, sometimes collectively “the contestants”) contested a will in the trial court, where the jury returned a verdict and the trial court entered a judgment in favor of the contestants and thereby invalidated the contested will. The respondents now before us, Ruth H. Morrow and Pamela Morrow (hereinafter, sometimes collectively “the proponents”) had offered the will for probate and, after they lost the will contest to the contestants in the trial court, appealed the adverse judgment to this Court, which, pursuant to § 12-2-7(6), Ala.Code 1975, deflected the appeal to the Court of Civil Appeals, which reversed the judgment of the trial court, remanded the case, and instructed the trial court to enter a judgment in favor of the proponents, so that they could proceed to effectuate the will and to receive its benefits. Morrow v. Helms, 873 So.2d 1132 (Ala.Civ.App.2001).

The contestants have petitioned us for a writ of certiorari, which we have granted, to review the judgment of the Court of Civil Appeals. While we agree that the trial court committed one error, we do not agree that it committed two more as held by the Court of Civil Appeals. The one error committed by the trial court entitles the proponents to a reversal of the trial court judgment and to a new trial, but not to the judgment as a matter of law contemplated by the Court of Civil Appeals. Therefore, we affirm in part, reverse in part, and remand to the Court of Civil Appeals for further proceedings.

In the appeal decided by the Court of Civil Appeals, the proponents of the contested will, the appellants before the Court of Civil Appeals, contended that the trial court had committed three reversible errors in, first, denying the proponents’ motion for judgment as a matter of law on their claim that the execution of the will met the formal requirements for validity; second, denying the proponents’ motion for judgment as a matter of law on the contestants’ claim that the decedent, Bernice H. Grimes, lacked testamentary capacity; and, third, denying the proponents’ motion for judgment as a matter of law on the contestants’ claim that the proponents had procured the will by exerting undue influence on Bernice. The Court of Civil Appeals held that the trial court committed all three errors. We are reviewing all three of these holdings by the Court of Civil Appeals and therefore necessarily are reviewing all three of the challenged rulings by the trial court.

Standard of Review

“On certiorari review, this Court accords no presumption of correctness to the legal conclusions of the intermediate appellate court. Therefore, we must apply de novo the standard of review that was applicable in the Court of Civil Appeals.” Ex parte Toyota Motor Corp., 684 So.2d 132, 135 (Ala.1996). The appellate standard for reviewing a ruling on a motion for judgment as a matter of law, a “JML,” is the same as the standard for the original decision by the trial court. Palm Harbor Homes, Inc. v. Crawford, 689 So.2d 3 (Ala.1997).

The first prerequisite for JML in favor of a movant who asserts a claim or an affirmative defense is that the claim or affirmative defense be valid in legal theory, if its validity be challenged. See Driver v. National Sec. Fire & Cas. Co., 658 So.2d 390 (Ala.1995). The second prerequisite for JML in favor of such a movant, who necessarily bears the burden of proof, American Furniture Galleries v. McWane, Inc., 477 So.2d 369 (Ala.1985), McKerley v. Etowah-DeKalb-Cherokee Mental Health Board, Inc., 686 So.2d 1194 (Ala.Civ.App.1996), and Oliver v. Hayes International Corp., 456 So.2d 802 (Ala.Civ.App.1984), is that each contested element of the claim or affirmative defense be supported by substantial evidence. See Driver, supra, and McKerley, supra. The third prerequisite for JML in favor of such a movant is that the record be devoid of substantial evidence rebutting the movant’s evidence on any essential element of the claim or affirmative defense. See Driver, supra, and First Fin. Ins. Co. v. Tillery, 626 So.2d 1252 (Ala.1993). Substantial rebutting evidence would create an issue of fact to be tried by the finder of fact and therefore would preclude JML. See Driver, supra, and First Financial, supra. JML in favor of the party who asserts the claim or affirmative defense is not appropriate unless all three of these prerequisites coexist. See Driver, supra, and First Financial, supra, McKerley, supra, and Oliver, supra.

JML in favor of a movant who does not assert the claim or affirmative defense but who only opposes it, and who therefore does not bear the burden of proof, is appropriate in either of two alternative cases. One is that the claim or affirmative defense is invalid in legal theory. See Harkins & Co. v. Lewis, 535 So.2d 104 (Ala.1988). The other is that one or more contested essential elements of the claim or affirmative defenses is unsupported by substantial evidence. See Banks v. Harbin, 500 So.2d 1027 (Ala.1986), and McKerley, supra. If either alternative be true, JML is appropriate. See Harkins, supra, Banks, supra, and McKerley, supra. If, however, the nonmovant’s claim or affirmative defense is valid in legal theory and is supported by substantial evidence on every contested element, JML is inappropriate irrespective of the presence or weight of countervailing evidence. See Driver, supra, and First Financial, supra.

The statutory definition of substantial evidence is: “evidence of such quality and weight that reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions as to the existence of the fact sought to be proven.” § 12—21—12(d), Ala. Code 1975. West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989), explains, “substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” A trial court deciding a motion for JML and an appellate court reviewing such a ruling must accept the tendencies of the evidence most favorable to the nonmovant, Wal-Mart Stores, Inc. v. Manning, 788 So.2d 116 (Ala.2000), Southern Energy Homes, Inc. v. Washington, 774 So.2d 505 (Ala.2000), and Palm Harbor Homes, supra, and must resolve all reasonable factual doubts in favor of the nonmovant, Willis v. Parker, 814 So.2d 857 (Ala.2001).

The Formal Validity of the Execution of the Will

The proponents advanced two arguments before the Court of Civil Appeals in support of the proponents’ claim that the trial court erred in denying the proponents’ motion for JML on the issue of the formal validity of the execution of the will. The first argument was that the will was “self-proved” pursuant to § 43-8-132, Ala. Code 1975, even though the official seal of the “officer authorized to administer oaths” was not affixed as required by this statute. The Court of Civil Appeals agreed that the seal was unnecessary and that the will was self-proved. We must reject these holdings, because the statute means what it says. Judge Murdock, in his special writing in this case below, correctly explains the indispensable nature of the seal, Morrow, 873 So.2d at 1137 (Mur-dock, J., concurring in the result), and we adopt Judge Murdock’s analysis.

The proponents’ second argument is that they introduced uncontradicted evidence that the will was actually executed as required by § 43-8-131, Ala.Code 1975—that is, that the will was signed by the testator before two witnesses, who also signed. We agree. Judge Murdock’s special writing correctly analyzes this issue too. Morrow, 873 So.2d at 1138 (Murdock, J., concurring in the result).

The contestants did not preserve any challenge to the legal sufficiency of the proponents’ prima facie proof of the formalities of the execution of the will, and no evidence in the record rebuts the proponents’ prima facie proof. Therefore, the trial court erred in denying the proponents’ motion for JML on this issue and in submitting this issue to the jury.

The jury returned a general verdict, which reads:

“We, the Jury, find the issues in favor of the Contestants, Annie Jean Helms, Mary Jon Brown, Sharon Wallace, Susan Mitch[u]m. and Robert Grimes and that the purported will offered in evidence is not the valid last will and testament of Bernice H. Grimes, deceased.”

The text of this verdict against the proponents of the will does not exclude the possibility that the jury based the verdict on a finding that Bernice did not sign the will or that she did not sign it before two witnesses who also signed, as required by § 43-8-131. Such a finding would be contrary to the proponents’ uneontroverted prima facie proof. Thus, the error of the trial court in denying JML in favor of the proponents on this issue requires reversal. See Aspinwall v. Gowens, 405 So.2d 134 (Ala.1981). The judgment of the Court of Civil Appeals is correct to this extent, although for a wrong reason.

Substantive Facts Pertinent to the Issues of Testamentary Capacity and Undue Influence

An analysis of the second and third issues is necessarily fact intensive. Because, in reviewing the decision of the Court of Civil Appeals on a trial court ruling on a motion for JML, we must accept the tendencies of the evidence most favorable to the nonmovants, the contestants, Manning, supra, Washington, supra, and Palm Harbor Homes, supra, and must resolve all reasonable factual doubts in favor of the nonmovant, Willis, supra, we will so discuss the evidence and the facts.

The putative testatrix of the second will was Bernice H. Grimes. The proponents are Bernice’s sister Ruth Morrow and Ruth’s daughter Pam Morrow. The four contestants are blood nieces and a blood nephew of Bernice’s late husband John Grimes. The four contestants are related to Bernice only by her marriage to John, the contestants’ uncle.

In 1994 Bernice executed a will which would have left substantial property to the contestants, although more to the proponents, if Bernice’s husband John, then living, were to predecease her. In May 1996 John died of cancer, which had caused him lingering agony, which, in turn, had caused Bernice acute grief. At John’s death, Bernice inherited 17 certificates of deposit (“CDs”) jointly titled in the names of John and Bernice, with right of survivorship. Beginning within a month after John’s death and continuing until Bernice’s death in 1998, as each CD was renewed at maturity, the proponents’ names, along with Bernice’s name, appeared on each CD as joint owners with right of survivorship. These CDs totaled $215,743.95 in value, which the proponents owned jointly after Bernice’s death. After John’s death, proponent Pamela opened a joint checking account in the names of Bernice, Pamela, and Ruth, with right of survivorship, and deposited only Bernice’s money in the account. Statements for this joint checking account were mailed only to proponent Ruth’s home address. Before John’s death, the proponents had already acquired joint ownership, with survivorship, of, and check-writing authority on, one of Bernice’s then-existing checking accounts, which, at Bernice’s death, was worth $13,941, then owned jointly by the proponents. Likewise, before John’s death, both proponents had already acquired a key and access to Bernice’s safe deposit box, even though, in the will-contest litigation, Ruth denied that she had such access.

In December 1996 Bernice began experiencing pain in her side. On December 30, 1996, she visited Dr. William Reynolds, whom the proponents had recommended. Dr. Reynolds prescribed Lortab, consisting of hydrocodone, a synthetic morphine-like narcotic, for Bernice’s pain and referred Bernice to a specialist for diagnosis. That evening, after his regular working hours, Dr. Reynolds called Bernice at home because he was so worried about her pain and her mental state.

Four days later, on January 3, 1997, Bernice returned to Dr. Reynolds, who told her she was dying of the same sort of cancer that had killed her husband. On this visit, Dr. Reynolds prescribed more Lortab in a greater dosage and advised Bernice “that [her] family situation needs to be put in order.” On January 20, 1997, Dr. Reynolds prescribed still more Lortab requested by Bernice.

On January 15, 1997, Bernice purported to execute a second will, the one at issue in this case, at the office of Jackson W. Stokes, the lawyer who had drafted this putative second will, not the same lawyer who had drafted Bernice’s first will in 1994. The January 15, 1997 will, Bernice’s putative second will, in the words of the Court of Civil Appeals, “practically disinherited all of the contestants and left almost all her estate to the proponents.” Morrow, 873 So.2d at 1135.

The proponent Pamela had recommended Mr. Stokes to Bernice for this putative second will. During the weeks preceding January 15, 1997, Bernice had been dependent on the proponents to drive her wherever she needed to go. Even though, during the will-contest litigation, the proponents denied even knowing about the second will until months after Bernice’s death, proponent Ruth told one of the contestants, on the day after Bernice’s funeral, that the proponents could take whatever they wanted from Bernice’s house because the proponents were inheriting all of it.

Beginning when Bernice started to take Lortab and continuing after she purported to execute the second will, she was always asleep or sleepy. Dr. Reynolds testified that Lortab “alters your mind ...[,] affects your thinking,” “can make you nauseous,” “can make you generally poor in health,” “can cause problems to interfere with your ability to think clearly,” and makes a person “sedated and confused.” Dr. Reynolds testified further that, because of the sedating effect of Lortab, a physician who prescribes Lortab tells a patient “don’t you drive, don’t you get on a forklift, don’t you go up on heights.” (Emphasis added.) Dr. Reynolds testified that Bernice’s pain and her medication affected “her mental state, her mental ability to be cognitive and clear.”

Kathy M. Bozeman, a registered nurse, testified that she was familiar with the drug Lortab and its effects. She testified that Lortab affects a person’s central nervous system, “the system that makes you drowsy and changes your moods.” “[W]hen someone has cancer, [the doctors] start [him or her] with a low level of pain medicine ... [a]nd then [he or she] graduate[s] up to higher, more strong medicine ... because [his or her] body ... adjust[s] to that first [dosage]” “in a month or so.” Bozeman testified that Lortab normally affects a person’s mind — that Lortab can cause a patient to lose the ability to concentrate or to lose the ability to know what he or she is doing.

Bozeman stated that, if, during the first month Bernice was taking Lortab, she “was sleeping, staying asleep, was always drowsy, and not aware as she used to be,” Bernice’s condition was consistent with the side effects of Lortab. She stated that, assuming Dr. Reynolds “saw Bernice on January 3, 1997 and he told her that she had the same kind of cancer that [killed] her husband,” Bernice’s cancer “would [have been] difficult and emotional news” for Bernice. Bozeman stated that, if Bernice “on January 15,1997, signed a will and was taking Lortab, she would be doing so with the propensity of that medication affecting her.”

The evidence tended to prove that proponent Ruth visited Bernice at her home daily from the time she started to take Lortab through the date she purported to execute the putative second will. The record contains evidence that, on several occasions during this period, proponent Ruth denied others access to Bernice.

Testamentary Capacity

At trial the contestants sought to prove their claim that Bernice was mentally incompetent to execute the contested will when the proponents claimed she executed it, January 15, 1997. At the close of the contestants’ evidence and at the close of all the evidence, the proponents moved for JML on this claim by the contestants. On appeal, the Court of Civil Appeals agreed with the proponents’ argument that the trial court erred to reversal in denying JML in favor of the proponents on this claim by the contestants. We disagree, because the record contains substantial evidence supporting this claim of the contestants, the nonmovants.

“The law presumes that every person has the capacity to execute a will, and the burden is on the contestant to prove the lack of testamentary capacity. To possess testamentary capacity, one must be able to recall the property to be devised, the desired disposition of the property, and the persons to whom he or she wishes to devise the property. In Fletcher v. DeLoach, 360 So.2d 316 (Ala.1978), the Court described in detail the broad evidentiary inquiry that must be made when testamentary capacity is at issue:
“ ‘ “Evidence is competent to prove conduct and language at various times and places indicating an unhealthy mental condition, and the more extensive the view the safer is the determination reached.”
‘[Tucker v. Tucker, 248 Ala. 602, 610, 28 So.2d 637, 644 (1946).] Thus, evidence offered as to the mental and physical condition of the testatrix, either before or immediately after execution of the will, is admissible since it tends to indicate her condition when the will was signed. Likewise, testimony regarding the testatrix’s “conversations, deportment, acts, and appearance” has been found to be competent on the issue of testamentary capacity.’
360 So.2d at 318 (citations omitted).”

Allen v. Sconyers, 669 So.2d 113, 117-18 (Ala.1995) (citations omitted and emphasis added).

“Simply stated, if the testator knows his estate and to whom he wishes to give his property and understands that he is executing a will, he has testamentary capacity. A person may execute a valid will, even if he or she is not competent to transact ordinary, everyday affairs.
“ ‘The fact that the testator is under the immediate influence of intoxicating liquor or drugs at the time he performs the testamentary act does not invalidate his will on the ground of lack of testamentary capacity, provided that he then comprehends the nature, extent, and disposition of his estate and his relation to those who have or might have a claim on his bounty....’”

Smith v. Vice, 641 So.2d 785, 786-88 (Ala.1994) (citations omitted). Neither the proponents nor the contestants have presented direct testimony to the particulars of Bernice’s testamentary capacity — whether she recalled or comprehended the property to be given, the identities and relations of the beneficiaries, or the fact or significance of executing a will. The contestants are not confronted with uncontradicted adverse testimony on these critical particulars. Rather, both sides rely on circumstantial evidence.

While the record does not contain direct evidence that Bernice actually ingested Lortab on January 15, 1997, the date of the putative second will, the evidence of Bernice’s consumption of Lortab both before and after that date, the evidence of the effects and side effects of Lortab, and the evidence of Bernice’s physical pain and mental distress is sufficient to rebut the legal presumption in favor of Bernice’s testamentary capacity and to create a genuine issue of fact to be decided by the finder of fact. Allen, supra. While the conclusory testimony of the proponents’ witnesses to the effect that Bernice appeared to be “of sound mind” does tend to rebut the contestants’ evidence, such countervailing evidence does not eliminate the issue of fact and does not warrant or allow JML. See Jim Walter Homes, Inc. v. Kendrick, 810 So.2d 645 (Ala.2001), Washington, supra, and A.T. Stephens Enters., Inc. v. Johns, 757 So.2d 416 (Ala.2000). Therefore, the Court of Civil Appeals erred in holding that the trial court erred in denying the proponents’ motion for JML on this issue.

Undue Influence

At trial the contestants sought to prove also that the proponents procured the putative January 15, 1997 will by exerting undue influence in Bernice. At the close of the contestants’ evidence and at the close of all the evidence, the proponents moved for JML on this claim by the contestants too. On appeal, the Court of Civil Appeals agreed with the proponents’ argument that the trial court erred to reversal in denying JML in favor of the proponents on this claim by the contestants. We disagree, because the record contains substantial evidence supporting the two elements of a claim of undue influence that the Court of Civil Appeals held unsupported by substantial evidence.

“To establish a prima facie case of undue influence, the contestant must show that a confidential relationship existed between a favored beneficiary and the testator; that the beneficiary’s influence was dominant and controlling in the relationship; and that there was undue activity on the part of the dominant party in procuring the execution of the will. A confidential relationship arises when one comes to rely upon and trust another in one’s important affairs. The term ‘favored beneficiary’ has been defined as:
“ ‘One who, in the circumstances of the particular case, has been favored over others having equal claim to the testator’s bounty. An unnatural discrimination, leading to a natural inference that advantage has been taken by one in position so to do; and shown to have been busy in getting such will executed.’
“Cook v. Morton, 241 Ala. 188, 192, 1 So.2d 890, 892 (1941). Whether the beneficiary was the dominant party in the relationship is usually a question of fact for the jury, and the jury may review the often circumstantial evidence as to whether there were controlling influences over the testator’s behavior. Undue activity in the procurement or execution of a will may also be proved by circumstantial evidence.”

Allen, 669 So.2d at 117 (citations omitted and emphasis added). The Court of Civil Appeals addressed only two of the essential elements of a claim of undue influence: the proponents’ alleged dominance and control over Bernice and the proponents’ alleged undue activity in procuring the execution of the will. The Court of Civil Appeals held that the record contains “no evidence” supporting either of these elements. We disagree.

The evidence of the proponents’ access to and control over Bernice’s money and property, their profiting from this access and control during Bernice’s last two years of life and soon after Bernice’s death, their control over Bernice’s transportation, and their control, to some extent, of access to Bernice herself during the 16 critical days culminating with the execution of the putative second will constitutes substantial evidence of dominance and control. The same evidence that the proponents obtained money and property from Bernice, the evidence that proponent Pamela suggested the lawyer who drafted the second will, the evidence that one of the proponents must have driven Bernice to the office where the will was executed, and the evidence that both proponents falsely denied any knowledge of the second will is substantial evidence of undue activity in procuring the execution of the will.

Therefore, the Court of Civil Appeals erred in holding that the trial court erred in denying the proponents’ motion for JML in what the Court of Civil Appeals erroneously held to be an absence of substantial evidence to support these two essential elements of the contestants’ claim of undue influence. While the proponents also argue to us that a third essential element of this claim, the element that the proponents were “favored beneficiaries” under the putative 1997 second will, is unsupported by substantial evidence, the Court of Civil Appeals did not address this essential element; and, because no holding by the Court of Civil Appeals on this element is before us, we will not address it either. Our remand will not foreclose consideration of this issue.

Conclusion

While the trial court erred in denying the proponents a JML on their claim that the formalities of the execution of the will satisfied statutory requirements, the trial court did not err in denying the proponents a JML on the contestants’ claim of lack of testamentary capacity in Bernice and did not err in denying the proponents a JML on the contestants’ claim of the proponents’ undue influence over Bernice. Thus, the Court of Civil Appeals erred in its holdings that the trial court erred in denying the proponents’ motion for JML on each of these two claims by the contestants. Therefore, even though the judgment of the trial court must be reversed, these errors by the Court of Civil Appeals invalidate its proposed instruction for the trial court “to enter a judgment for the proponents.”

The contestants are entitled to proceed again to the jury on their lack-of-testamentary-capacity claim; and, absent further consideration and an adverse holding by the Court of Civil Appeals on the issue of the proponents’ status as “favored beneficiaries” under the putative 1997 second will, the contestants will be entitled to proceed again to the jury on their undue-influence claim. Therefore, this cause must be affirmed in part, reversed in part, and remanded to the Court of Civil Appeals for proceedings not inconsistent with this opinion.

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

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

SEE, J., concurs in part and dissents in part.

SEE, Justice

(concurring in part and dissenting in part).

I concur with the main opinion that the proponents, Ruth Morrow and Pamela Morrow, were entitled to a judgment as a matter of law (“JML”) on the issues of the formal validity and execution of Bernice Grimes’s will. I dissent from that portion of the main opinion that holds that Ruth Morrow and Pamela Morrow were not entitled to a JML on the issues of testamentary capacity and undue influence.

The contestants, Annie Jean Helms, Mary Jon Brown, Sharon Wallace, ■ Susan Grimes Mitchum, and Robert Grimes, alleged that Bernice Grimes lacked testamentary capacity to execute her will and that Ruth Morrow and Pamela Morrow unduly influenced Bernice Grimes in the execution of her will. Ruth Morrow and Pamela Morrow contest both claims.

Testamentary capacity requires only that the testator possess

“ ‘mind and memory sufficient to recall and remember the property she was about to bequeath, and the objects of her bounty, and the disposition which she wished to make — to know and understand the nature and consequences of the business to be performed, and to discern the simple and obvious relation of its elements to each other.’ ”

Ex parte Baker, 709 So.2d 7, 10 (Ala.1997)(quoting Bolan v. Bolan, 611 So.2d 1051, 1057 (Ala.1993)). “Every testator is presumed to have the capacity to make a will ... and the burden is on the contestant to prove the lack of testamentary capacity.” Bolan v. Bolan, 611 So.2d 1051, 1057 (Ala.1993). Moreover, “[t]he standard for finding testamentary capacity is not a high one.... ” Smith v. Vice, 641 So.2d 785, 786 (Ala.1994).

Presiding Judge Yates noted in her special concurrence to the Court of Civil Appeals’ opinion that “[t]he contestants presented no evidence indicating that the decedent lacked testamentary capacity on January 15, 1997, when she signed her will.” Morrow v. Helms, 873 So.2d 1132, 1136 (Ala.Civ.App.2001)(Yates, P.J., concurring specially). At trial, none of the witnesses testified that Bernice Grimes lacked the mind or memory to recall or remember her property or the capacity to understand what she was doing when she executed her will. The main opinion' in this case nevertheless holds that the contestants presented evidence sufficient to overcome the presumption that Bernice Grimes had the capacity to make a will because the contestants demonstrated that she had been diagnosed with cancer, that she had experienced some pain associated with the cancer and had taken Lor-tab for the pain, and that she was upset about her cancer diagnosis and her husband’s recent death from cancer. 873 So.2d at 1145. The main opinion concedes “the record does not contain direct evidence that Bernice actually ingested Lortab on January 15, 1997.” 873 So.2d at 1147. The main opinion also concedes that the will’s proponents presented witnesses who testified that Bernice “appeared to be ‘of sound mind.’ ” 873 So.2d at 1148.

The main opinion in this case substantially alters the standard for finding that a testator lacked testamentary capacity. The main opinion holds that the mere possibility that Bernice Grimes may have been under the influence of a prescription painkiller when she executed her will creates a question of fact for a jury to resolve as to her testamentary capacity. The main opinion therefore holds that the contestants to a will who allege that the testator lacked testamentary capacity can satisfy their burden of proof if they can demonstrate by circumstantial evidence the mere possibility that the testator may have lacked the capacity to execute a will, namely, evidence indicating that the testator used prescription pain medication. The main opinion does not require the contestants to present evidence indicating that the testator did not, in fact, understand the nature and consequences of her actions.

In Smith v. Vice this Court stated: “ ‘The fact that the testator is under the immediate influence of intoxicating liquor or drugs at the time he performs the testamentary act does not invalidate his will on the ground of a lack of testamentary capacity.’ ” 641 So.2d at 788 (emphasis add-edXquoting 79 Am.Jur.2d Wills § 88 (1975)). The main opinion in this case effectively overrules Smith v. Vice and creates a presumption that the fact that the testator is taking prescription pain medication when the testator executes a will creates a jury question as to testamentary capacity in the event of a will contest, and evidence indicating that a testator took prescription pain medication, or even evidence indicating that a testator had a prescription for pain medication, is sufficient to sustain a jury’s verdict that a testator lacked testamentary capacity.

Finally, as to the question of undue influence, I agree with the conclusion reached by Presiding Judge Yates of the Court of Civil Appeals that the contestant’s testimony “at best indicates that [Bernice Grimes’s] sister and niece spent a lot of time with her from the time she was diagnosed with cancer in January 1997 until she died in May 1998.” 873 So.2d at 1137 (Yates, P.J., concurring specially). In addition, in light of the fact that Bernice Grimes’s physician, Dr. William Reynolds, suggested to Bernice on January 3, 1997, that her “family situation need[ed] to be put in order,” and that because she was taking Lortab, she should not drive a car, I find it entirely unremarkable that 12 days later Bernice asked a close relative to drive her to an attorney’s office to prepare a will.

For the foregoing reasons, I dissent from this Court’s reversal of the judgment of the Court of Civil Appeals on the issues of testamentary capacity and undue influence.

      . The main opinion focuses on Bernice Grimes’s prescription for Lortab because the contestants presented a witness, Kathy Boze-man, a registered nurse, who testified that Lortab may affect a patient’s ability to concentrate or to know what he or she is doing.


source: Caselaw Access Project

author: CRAWLEY, Judge.

license: Public Domain

text:
    Pamela MORROW and Ruth H. Morrow v. Annie Jean HELMS et al.
    2990942.
    Court of Civil Appeals of Alabama.
    Sept. 12, 2003.

      C. Clay Torbert III and Richard H. Allen of Capell & Howard, P.C., Montgomery, for appellants.
    L. Merrill Shirley, Elba, for appellees.
   On Remand from the Alabama Supreme Court.

CRAWLEY, Judge.

On March 16, 2001, this court reversed a judgment entered by the Coffee Circuit Court on a jury verdict in favor of the contestants in a will contest. Morrow v. Helms, 873 So.2d 1132 (Ala.Civ.App.2001). On June 13, 2003, the Alabama Supreme Court affirmed this court’s judgment in part, reversed this court’s judgment in part, and remanded the cause with instructions. Ex parte Helms, 873 So.2d 1139 (Ala.2003).

The supreme court affirmed this court’s judgment insofar as it held that the proponents of the will were entitled to a judgment as a matter of law (“JML”) on the issue regarding proper execution of the will. The supreme court reversed our judgment insofar as it held that the proponents were entitled to a JML on the issue of testamentary capacity; the supreme court determined that the contestants of the will were entitled to a new trial on that issue. In addition, the supreme court reversed this court’s judgment insofar as it held that the proponents were entitled to a JML on the issue of undue influence.

The supreme court explained that, in order to raise a presumption of undue influence in a will contest and thereby shift the burden of proof to the proponent of the will, the contestant of the will must prove three elements, namely: (1) that a confidential relationship existed between a favored beneficiary and the testator; (2) that the favored beneficiary’s influence was dominant and controlling in the relationship; and (3) that there was undue activity on the part of the favored beneficiary in procuring the execution of the will. The supreme court pointed out that this court had addressed only two of the three essential elements of an undue influence claim— the dominance-and-control element and the undue-activity element — and that we had held that the record contained no evidence supporting those two elements. The supreme court held that this court had erred in concluding that there was not substantial evidence to support those two elements. Then, as to the remaining element of the undue-influence claim, the supreme court stated:

“While the proponents also argue to us that a third essential element of this claim, the element that the proponents were ‘favored beneficiaries’ under the putative 1997 second will, is unsupported by substantial evidence, the Court of Civil Appeals did not address this essential element; and, because no holding by the Court of Civil Appeals on this element is before us, we will not address it either. Our remand will not foreclose consideration of this issue.
“... [Ajbsent further consideration and an adverse holding by the Court of Civil Appeals on the issue of the proponents’ status as ‘favored beneficiaries’ under the putative 1997 second will, the contestants will be entitled to proceed again to the jury on their undue-influence claim.”

Ex parte Helms, 873 So.2d at 1149.

In Cook v. Morton, 241 Ala. 188, 192, 1 So.2d 890, 892 (1941), the Alabama Supreme Court defined the term “favored beneficiary” as follows:

“[A favored beneficiary is one] who, in the circumstances of the particular case, has been favored over others having equal claim to the testator’s bounty. An unnatural discrimination, leading to a natural inference that advantage has been taken by one in position so to do; and shown to have been busy in getting such will executed.”

On remand, the proponents ask this court to address the “favored beneficiary” issue. They argue that they are not, as a matter of law, favored beneficiaries because they were more closely related to the testatrix than the contestants were. The proponents maintain that because they were related to the testatrix by consanguinity, rather than by affinity as the contestants were, the contestants did not have an “equal claim” to the testatrix’s bounty, the testatrix naturally favored the proponents, and the testatrix did not, therefore, make an “unnatural discrimination” in naming the objects of her bounty.

The proponents’ argument is not grounded in Alabama law. “The ‘equal claim’ of others refers not to the laws of descent and distribution but to the facts of the particular case. Windham v. Pope, 474 So.2d 1075, 1077 (Ala.1985).” Clifton v. Clifton, 529 So.2d 980, 983 (Ala.1988). See also Mindler v. Crocker, 245 Ala. 578, 18 So.2d 278 (1944); Cook v. Morton, supra.

In Bolan v. Bolan 611 So.2d 1051 (Ala.1993), the proponents of a will appealed from a judgment entered on a jury verdict in favor of the contestants of the will. The proponents were three of the testator’s six surviving children; the contestants were the other three children and the offspring of a deceased child. The supreme court affirmed the judgment, holding that the trial court had not erred by submitting to the jury the question whether one of the proponents, a daughter who had cooked and cared for the testator for six years before his death, was a favored beneficiary. The proponent daughter had argued that she was not a favored beneficiary because “the favoritism [the testator] showed toward [her] was not unnatural at all, but was entirely normal in light of the closeness of their relationship and all that [the proponent daughter] had done for [the testator].” 611 So.2d at 1056. The court held:

“There was evidence that [another daughter, one of the contestants,] and [the testator] were both strong-willed people and simply did not get along, notwithstanding [the contestant daughter’s] good intentions in trying to persuade [the testator] to take medicine, see a doctor, and so forth. There was also substantial testimony, however, that the contestants enjoyed a good relationship with [the testator] up until the very end of his life. In light of this testimony, and because whether a beneficiary is ‘favored’ depends on the particular facts of the case, Cook v. Morton, [241 Ala. 188, 1 So.2d 890 (1941) ], the trial court did not err in submitting to the jury the question of whether [the proponent daughter] was a ‘favored beneficiary’ under the controlling Cook definition.”

611 So.2d at 1056-57. See also Armstrong v. McGee, 579 So.2d 1310 (Ala.1991). In the present case, there was substantial evidence that the proponents and the contestants had visited the testator during her last illness and had enjoyed a good relationship with her. Under the circumstances, we hold that whether the proponents were “favored beneficiaries” was a question of fact for the jury. In accordance with the opinion of the Alabama Supreme Court, the judgment of the Coffee Circuit Court is reversed and the cause is remanded with instructions. On remand, the trial court is instructed to grant the proponents’ motion for JML on the issue of the proper execution of the will. The trial court is further instructed to conduct a new trial on contestants’ undue-influence and testamentary-capacity claims.

REVERSED AND REMANDED WITH INSTRUCTIONS.

THOMPSON and PITTMAN, JJ., concur.

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


author: PER CURIAM. CRAWLEY, Judge, THOMPSON, Judge,

text:
    Theresa V. MOORE v. John P. MOORE, Jr.
    2010349.
    Court of Civil Appeals of Alabama.
    Oct. 25, 2002.

      W. Terry Bullard, Dothan, for appellant.
    Don P. Bennett, Dothan, for appellee.
   PER CURIAM.

Theresa V. Moore (“the wife”) appeals from a judgment divorcing her and John P. Moore, Jr. (“the husband”). The wife makes three arguments on appeal: (1) that the property division was inequitable; (2) that the alimony award was insufficient; and (3) that the trial court abused its discretion by failing to award her an attorney fee.

The parties were married for almost 20 years. The wife sought a divorce on the ground of adultery, alleging that the husband had been unfaithful to her over a period of 12 years with 6 or 8 different women. The husband admitted his infidelity, and he testified that for a number of years he had neither loved nor trusted his wife. The husband counterclaimed for a divorce on the ground that the parties were incompatible.

The trial court awarded the wife temporary custody of the parties’ children. On September 5, 2000, the trial court ordered that the husband pay the wife $2,500 per month in temporary child and spousal support. On October 5, 2001, the trial court granted the divorce on grounds of incompatibility, awarded custody of the children to the husband, and fashioned a property division and an alimony award.

Two sons were born of the marriage; they were, at the time of trial, 16 and 18 years old. The trial court awarded custody of the children to the husband, pursuant to the sons’ stated preference and the parties’ agreement. The wife was not ordered to pay child support.

When the parties married, the husband was a student in medical school at the University of South Alabama, and the wife was in training to become a nurse anesthetist. They lived in Mobile for two years, until the husband finished his residency, and they then moved to Dothan, where the husband established a surgical practice with another physician. At the time of trial, the husband was 47 years old. For the past 10 years, his annual income has exceeded $600,000.

At the time of trial, the wife was 46 years old. Although she had worked full-time as a nurse anesthetist while the parties lived in Mobile, once they moved to Dothan she worked part-time and then only sporadically. When she worked full-time, the wife had earned $20,000 to $30,000 per year; when she worked part-time, her earnings were $12,000 to $15,000 per year. For the five years before she filed for divorce she had not been employed outside the home at all. The evidence established that, in order to be re-certified as a nurse anesthetist, the wife would have to file an application and earn approximately 40 continuing-education credits. The wife testified that she did not intend to work at all after the divorce. In later testimony, she indicated that she might go into business for herself, buying and selling antiques.

The wife testified that her health was “fair.” She claimed to be suffering from glaucoma and a bulging lumbar disc. However, she presented no medical evidence to substantiate those claims. The wife testified that her eye doctor had advised her that she was subject to “possible blindness, later in life.” She testified that she had not asked the doctor whether her ailment was serious enough to prevent her from working. The wife said that a radiologist had diagnosed her disc problem. She said that she had trouble bending and lifting, but she admitted that she had not sought any treatment for her back pain. On cross-examination, the wife acknowledged that she had taken several recent ski trips and that she had won a competitive ski-racing award. She testified that skiing helped her back problems.

The parties had accumulated substantial assets during the marriage. They owned five parcels of real property: the marital home in Dothan, appraised at $960,000; two other residences in Dothan — one at 403 Dunleith Boulevard, valued at $200,000 and the other at 201 Dunleith Boulevard, valued at between $135,000 and $175,000; a condominium at Bay Point, Panama City Beach, Florida, valued at $300,000; and farmland in Coffee County valued at $375,000. The wife’s mother lives in the residence at 201 Dunleith Boulevard. In lieu of a house payment, the wife’s mother has contributed $600 per month to a fund established for the parties’ sons’ educations.

The parties owned four automobiles: a 2000 GMC Tahoe sport-utility vehicle valued at $34,000, on which the parties owe $30,000; a 1996 Chevrolet Impala valued at $15,000; a 1999 Chevrolet Silverado pickup truck valued at $15,000; and a 1996 Ford Bronco sport-utility vehicle valued at $7,500. They owned a 1995 Robalo boat worth $10,000 to $15,000 and a SeaDoo brand personal watercraft worth $8,000 to $9,000. In addition, they owned a farm tractor, a travel trailer, and a four-wheel recreational vehicle; the total value of those vehicles is approximately $25,000. The husband’s pension plan and profit-sharing account was valued between $900,000 and $1 million. The husband has a one-third interest in his medical practice, which he claims is worth $50,000. He presented no evidence to substantiate that claim, but the wife presented no evidence in opposition. The husband has an educational account for the sons with Fidelity Growth and Income Fund; that account was valued at the time of trial at $90,000 to $100,000.

The parties disagreed as to the value of some of their property, specifically the contents and furnishings of the marital home and the wife’s jewelry. The husband valued the furniture and furnishings of the marital home at $300,000 to $500,000. The wife valued that property at $45,000. The trial court’s judgment states that it was “unable from the evidence to make any finding of a realistic value of this property.” The wife testified, without contradiction, that the contents of the Bay Point condominium were worth $25,000 to $50,000. The husband valued the wife’s jewelry at more than $45,000; the wife valued it at $20,000.

The parties incurred substantial debt, primarily as a result of their or the husband’s investment in a Coffee County real-estate development company managed by the husband’s brother. The husband owns a two-thirds interest in the company, Moore Development, LLC, and he is personally liable on the company’s debt, which amounts to $3,200,000. Part of the debt is secured by a mortgage on the marital home in the amount of $879,500. The husband is also liable for the mortgage debts on two other residences in Dothan: a $195,200 mortgage on the property at 403 Dunleith Boulevard and a $99,800 mortgage on the property at 201 Dunleith Boulevard. The debt service on all three mortgages is over $23,000 per month.

The trial court awarded the wife periodic alimony of $4,000 per month for 12 months, beginning on October 1, 2001, or until the wife was employed in her profession as a nurse anesthetist. The wife was awarded the beach condominium and its contents, the Robalo boat, the personal watercraft, and the 2000 GMC Tahoe. She was awarded her jewelry and the furnishings of four rooms in the marital home— the kitchen, the living room, the master bedroom, and the front foyer. The wife was also given the use of the residence at 403 Dunleith Boulevard until she remarried or cohabited with a member of the opposite sex, in which event the property would be sold and the net proceeds divided equally between the parties. The husband was ordered to pay the indebtedness on the property at 403 Dunleith Boulevard. The wife was also awarded the house in which her mother was residing at 201 Dun-leith Boulevard. The wife was ordered to pay the mortgage indebtedness on that property. The trial court’s judgment provides that if the wife is ever in default on the mortgage payment for more than 60 days, the title to that property shall immediately vest in the husband.

In the original judgment, the wife was given 25% of the husband’s pension and profit-sharing account. After a hearing on the husband’s postjudgment motion, however, the trial court reduced the wife’s share to 23%.

The husband was awarded the marital home and those contents not specifically awarded to the wife. He was ordered to pay the indebtedness on that home. He was also awarded the Coffee County farmland, the farm implements, the travel trailer, and the recreational vehicle, as well as all automobiles not awarded to the wife. He was awarded the children’s educational fund, his interest in Moore Development, LLC, as well as its indebtedness, and his interest in his medical practice. He was awarded 75% of his pension and profit-sharing plan. The husband was ordered to be solely responsible for all debts that arose during the marriage, before the wife filed for divorce. Each party was ordered to be responsible for debts he or she incurred after the wife filed for divorce. Each party was ordered to pay his or her own attorney fee.

The husband filed a postjudgment motion contending, among other things, that, before the date set for the husband to take possession of the marital home from the wife (who had occupied the house pending trial), the wife had vandalized the house and had stolen from it all the contents awarded to him. At a hearing on the husband’s motion, the husband presented testimony and documentary evidence in the form of a videotape, indicating that the marital home had been stripped bare of its furniture, furnishings, and some fixtures— including carpeting and wall murals and chandeliers, sconces, and other light fixtures. In addition, the husband testified that the house had been vandalized. The husband testified that the damage consisted of broken doors, ripped moldings, gouged plasterboard, and locks that had been “superglued.” The husband alleged that the wife had removed $192,450 worth of furniture and furnishings from the marital home and had caused $76,000 of damage to the house. After the hearing, the trial court entered an amended judgment reducing the wife’s share of the husband’s pension and profit-sharing account to 23%. Using a figure of $950,000 for the value of that account, the wife’s share equals $218,500.

I. Property Division and Alimony Award

The wife argues that the trial court erred in its property division and in awarding her periodic alimony for only one year. The issues of property division and the award of alimony are interrelated, and those issues must be considered together. Myrick v. Myrick, 714 So.2d 311 (Ala.Civ.App.1998); Albertson v. Albertson, 678 So.2d 118, 120 (Ala.Civ.App.1995). Therefore, we address the wife’s arguments pertaining to those issues together.

“It is well settled that trial judges enjoy broad discretion in fashioning divorce judgments.” Ex parte Bland, 796 So.2d 340, 343 (Ala.2000). Where the trial court has received ore tenus evidence, its judgment based on that evidence is presumed to be correct and will not be reversed absent plain and palpable error. Nichols v. Nichols, 824 So.2d 797 (Ala.Civ.App.2001). That presumption of correctness is based in part on the trial court’s unique ability to observe the demeanor of the witnesses and assess their credibility. Hall v. Mazzone, 486 So.2d 408 (Ala.1986). The issues of property division and alimony are within the trial court’s discretion. Turner v. Turner, 804 So.2d 1118 (Ala.Civ.App.2001).

At the beginning of the hearing on the husband’s postjudgment motion, the trial court explained the reasoning behind its property-division and alimony awards as follows:

“THE COURT: Because of the acrimony between the parties, the Court felt that periodic alimony would not be appropriate because the parties have been unable to communicate with one another.... The Court, in its decision, found that Dr. Moore’s net worth was between $1.6 and $2 million. Therefore, the Court awarded Mrs. Moore what [it] felt was an appropriate separate estate in ivhich she could move on. The Court awarded a [condominium], which ... was valued at $315,000, free and clear. The Court awarded 25 percent of the retirement account, which the Court calculated to be approximately $250,000. The Court awarded the use of a $200,000 home. With past support being paid up to the time of the divorce, which was a year ... And [periodic] alimony ..., the Court awarded $96,000 in total sums.
“The Court awarded $30,000 for the [sport-utility vehicle]. And the Court awarded Mrs. Moore furnishings and jewelry in the approximate amount of $100,000. For a total of $976,000, approximately.
“The Court also took into consideration the fact that Dr. Moore would be supporting the children in the future, and that Dr. Moore assumed all debts of the parties.
“That was the basis for the Court’s decision.”

(Emphasis added.)

Thus, the trial court concluded that its property division and alimony award provided the wife “an appropriate separate estate in which she could move on.” However, the appropriate standard for determining a property division and alimony award provides:

“An equitable, rather than an equal, division of marital assets is required. [Parrish v. Parrish, 617 So.2d 1036 (Ala.Civ.App.1993)]. The factors the trial court should consider in fashioning its property division [and alimony award] include ‘the ages and health of the parties, the length of their marriage, their station in life and their future prospects, their standard of living and each party’s potential for maintaining that standard after the divorce, the value and type of property they own, and the source of their common property.’ Covington v. Covington, 675 So.2d 436, 438 (Ala.Civ.App.1996).”

Myrick v. Myrick, 714 So.2d at 313.

The wife claims that the trial court’s property division and alimony award are not equitable and that the trial court erred in including some values in its determination of the total of its award to the wife. In explaining the manner in which it fashioned the property division and award of alimony, the trial court stated it had included the entire $200,000 value of a house it did not award to the wife; rather, it awarded the wife the use of that house for so long as she remains single or does not cohabitate with a member of the opposite sex.

The trial court also included as an asset awarded to the wife $96,000 in periodic alimony payments; that amount represented the alimony the wife was to receive for one year plus the amount she had already received during the parties’ separation. Periodic alimony is in the nature of support for a dependent spouse. See Hager v. Hager, 293 Ala. 47, 299 So.2d 743 (1974); O’Neal v. O’Neal, 678 So.2d 161 (Ala.Civ.App.1996). Alimony in gross is in the nature of a property settlement. Hager v. Hager, supra. Although the issues of alimony and property division are to be considered together, under the facts of this case, the trial court erred in including in its calculation of the assets awarded to the wife the value of the periodic alimony designed for her support. The value of the assets the trial court awarded the wife are greatly diminished when the value of the periodic alimony and the value of the house that which the wife was awarded the use of are subtracted from the award.

It does not appear that either party was free of fault; however, the husband admitted to having numerous affairs during the course of the parties’ marriage. Given the factors relevant to an equitable property division and alimony award, especially the disparity in the parties’ earning capacities and prospects and the length of the parties’ marriage, we must conclude that the trial court’s alimony award and its division of the marital estate, accumulated over the course of the parties’ 20-year marriage, was inequitable. See Myrick v. Myrick, supra.

II. Attorney Fee

The wife argues that the trial court abused its discretion by failing to award her an attorney fee. It is well settled that the award of an attorney fee in a divorce action is a matter within the sound discretion of the trial court. See Slater v. Slater, 587 So.2d 376 (Ala.Civ.App.1991); Holmes v. Holmes, 487 So.2d 950 (Ala.Civ.App.1986). In determining whether to award an attorney fee, the trial court should consider the conduct of the parties, the financial circumstances of the parties, and the outcome of the litigation. Murphree v. Murphree, 579 So.2d 634, 637 (Ala.Civ.App.1991).

On the issue of conduct, the trial court apparently found that the wife was responsible for the damage to the marital home. The trial court reduced the wife’s share of the husband’s pension plan as a result of that conduct. In addition, the husband presented evidence indicating that during the year the case was awaiting trial, the wife forged two checks totaling $5,000 on the husband’s personal checking account and improperly accessed a credit-card account belonging to the husband, resulting in charges of $13,000 for, among other things, the wife’s airline tickets and expenses while she vacationed in Dallas, Denver, Palm Springs, Las Vegas, Toronto, and New York City.

The trial .court could have concluded that the husband had already, in effect, “paid” the wife’s attorney fee, based on the following facts: The wife made a claim on the parties’ homeowners’ insurance for damage to an antique bathtub; the insurance company sent the wife a check in payment of the claim; the wife elected not to repair or replace the bathtub but instead used the check to pay her attorney; and the bathtub is a fixture in the marital home, which was awarded to the husband. We conclude that the trial court did not abuse its discretion in declining to award the wife an attorney fee.

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

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

CRAWLEY, J., concurs as to Part II and dissents as to Part I.

THOMPSON, J., concurs as to Part I and dissents as to Part II.

CRAWLEY, Judge,

concurring as to Part II and dissenting as to Part I.

I concur in the holding that the trial court did not abuse its discretion in declining to award the wife an attorney fee. However, I dissent from the holding that the trial’s court property-division and periodic-alimony awards were inequitable.

The wife received a substantial marital-property award. Although the monthly periodic-alimony payments of $4,000 from the husband were to end in 12 months, the trial court compensated for the lack of a monthly payment by awarding the wife the use of a $200,000 house on which the husband was ordered to pay the indebtedness and by ordering the husband to make the payments on the wife’s $30,000 vehicle. The majority’s reversal of the property-division and periodic-alimony awards constitutes, in my opinion, a substitution of this court’s judgment for that of the trial court. See Ex parte Durbin, 818 So.2d 404 (Ala.2001); Ex parte Bland, 796 So.2d 340, 343 (Ala.2000); Ex parte Wallace, 795 So.2d 719 (Ala.2000).

THOMPSON, Judge,

concurring as to Part I and dissenting as to Part II.

I agree with the main opinion that the trial court’s property division and alimony award were inequitable. However, given the disparity in the parties’ incomes, I believe the trial court erred in refusing to award the wife an attorney fee. Therefore, I concur as to Part I of the main opinion, but I dissent as to Part II.

      . The record does not reflect when a third doctor entered the practice or identify the third partner.


author: WOODALL, Justice.

text:
    Ex parte John P. MOORE, Jr. (In re Theresa v. Moore v. John P. Moore, Jr.)
    1020256.
    Supreme Court of Alabama.
    July 3, 2003.
    Don P. Bennett, Dothan, for petitioner.
    W. Terry Bullard of Bullard & Bullard, L.L.C., Dothan, for respondent.
   WOODALL, Justice.

In 2001, after 19 years of marriage, John P. Moore, Jr. (“the husband”), and Theresa V. Moore (“the wife”) were divorced by the Houston Circuit Court, following the presentation of ore tenus evidence. The trial court divided the marital property and the debts of the marriage and awarded the wife $4,000 in monthly periodic alimony, “until such time as the [wife] has become employed in her profession as a nurse anesthetist, but for no longer than twelve months from the date of [the] judgment.”

The wife appealed, arguing that the property division was inequitable, that the alimony award was insufficient, and that the trial court had exceeded its discretion by failing to award her an attorney fee. The Court of Civil Appeals reversed the trial court’s judgment as to the award of periodic alimony and the division of the marital estate, stating its “conclu[sion] that the trial court’s alimony award and its division of the marital estate, accumulated over the course of the ... marriage, was inequitable.” Moore v. Moore, 873 So.2d 1154, 1160 (Ala.Civ.App.2002). The Court of Civil Appeals affirmed the trial court’s judgment insofar as the judgment failed to award the wife an attorney fee, “eon-clud[ing] that the trial court did not abuse its discretion in declining to award the wife an attorney fee.” Id. at 1160.

The husband petitioned this Court for certiorari review of the decision of the Court of Civil Appeals insofar as that decision reversed portions of the trial court’s judgment. We find that the trial court’s award of periodic alimony and its property division were not plainly or palpably wrong. Therefore, we reverse the judgment of the Court of Civil Appeals insofar as it reversed portions of the trial court’s judgment.

I. Facts

Following the presentation of ore tenus evidence, the trial court, in its final judgment of divorce, stated the following findings of fact:

“1. The parties were married on March 5, 1982, and lived together in a marital state until on or about June 24, 2000, at which time they separated. In her complaint the [wife] charged the [husband] with committing adultery during the marriage with several women and seeks the divorce on the grounds of adultery. The [husband] admitted his infidelity and testified that his relationship with the [wife] had been less than satisfactory for years. The [wife] admitted that she had considered filing for divorce before she became aware of the [husband’s] misconduct. The [husband] seeks a divorce in his counterclaim due to the incompatibility of the parties....
“2. There have been two children born of the marriage, [J.M.,] nineteen years of age, and [W.M.,] fifteen years of age. Shortly after the parties separated, both children chose to live with [the husband] ....
“3. The [husband] is employed as a general surgeon in Dothan, Alabama, and has earned $500,000 to $600,000 a year for the last several years. His earnings for 2000 were approximately $100,000 less than in previous years.
“4. The [wife] is a trained registered nurse anesthetist and she would require some additional training to obtain her certification. She worked very little during the marriage and not at all for the past three or four years. She has chosen not to work and there was evidence submitted that she does not intend to work; but intends to go into the antique business. During the time the parties have been separated, the [wife] has traveled extensively throughout the United States and Canada, apparently for her sole pleasure and recreation. It was unclear how she financed these trips.
“5. The parties have accumulated substantial assets during the marriage, consisting of both real and personal property. They have also incurred considerable debt, which primarily is the result of a large real estate development in Coffee County, Alabama, Moore Development Company, a limited liability company. The [husband] owns a two-thirds interest in this company. His brother, a building contractor, owns the other third and is responsible for the day-to-day construction and maintenance of this development. However, the [husband] is 100% liable for all the debts of the company and has personally guaranteed payment of these debts to the lending institutions. The present indebtedness of the company includes approximately $3,200,000 owed to banks. Part of this debt is secured by a mortgage on the former marital home at 100 Asphodel Drive in Dothan, Alabama. The present balance on this debt is $879,500. The [husband] is also liable for mortgage debts on two other homes, one at 403 Dunleith Boulevard in Dothan and one at 201 Dunleith Boulevard in Dothan. There is $195,200 owed on the home at 403 Dunleith and $99,800 owed on the one at 201 Dun-leith. To service these debts, the [husband] pays an average in excess of $23,000 [a] month. Although the [husband] enjoys a substantial income, this obligation, together with the reasonable monthly living expenses for the [husband] and the children, has exceeded his income for the past year, and there is no evidence that indicates his financial condition will improve. To the contrary it could very likely become worse. In addition to the mortgage indebtedness owed by the development company, it pays certain operating expenses and ongoing development costs. There are two accounts totaling $150,000 that are due on or before September 30, 2001. Prior to the organization of the development company, the parties were virtually debt free. However, they mutually agreed to enter into this venture and to go into substantial debt to do so. In fact the [wife] urged and encouraged the [husband] to make the investment and signed the mortgages to secure the loans.
“6. The parties own several motor vehicles, a boat, wave runner, travel trailer and a four wheel recreational vehicle known as a ‘mule.’ Included among the vehicles is a 2000 Chevrolet Tahoe on which is owed about $30,000. The parties estimate its worth between $32,000 and $34,000. It is unsure who has possession of the boat or where it is located. Both parties disclaim any knowledge regarding its whereabouts.
“7. The parties own a condominium at Bay Point, Panama City Beach, Florida, which they value at $300,000 and its furnishings between $25,000 and $50,000. Nothing is owed on this property. They also own farmland in Coffee County, Alabama, with an agreed value of $375,000. This property likewise has no debt. There is a tractor and other farming equipment and implements on this land valued between $15,000 and $30,000.
“8. The parties hold a mortgage on the home of the [husband’s] mother in New Brockton, Alabama to secure an indebtedness of $50,000.
“9. The [wife’s] mother occupies the home at 201 Dunleith Boulevard and has contributed $600 a month to an education fund for the parties’ sons for the last seven or eight years. She ceased making this contribution when the parties separated. The [wife] contends that this home was a gift to her mother and the [husband] denies this. The parties value the home between $135,000 and $175,000.
“10. The [husband] has a one-third interest in his medical practice, which the [wife] claims is worth $50,000. There is no evidence to support this claim.
“11. The educational fund of the two sons is invested in Fidelity Growth & Income Fund and is worth between $90,000 and $100,000. This fund is under the control of the [husband].
“12. The [husband] has a Pension Plan and Profit Sharing Plan through his employment with TD Waterhouse Securities. The actual value of these two plans is disputed. The [wife] contends that the Profit Sharing Plan is worth $399,829 and the [husband] claims it is worth $506,223. The Pension Plan is valued by [the wife] at $572,425 and the [husband] values it at $351,823. It may well be that the value assigned to each by the [wife] is reversed, i.e., the value for the Profit Sharing is actually that of the Pension Plan and vice versa. In either case the total of both would be the same.[]
“14. [The wife] values her jewelry at less than $20,000 while the [husband] values it in excess of $45,000.
“15.
“16. The major differences in the respective values assigned by the parties to their assets are found in those given to the value of the development company and the furniture and furnishings in the former marital home at 100 Asphodel Drive. It appears from the [wife’s] evidence that she determined the [husband’s] two-thirds interest in the development company has a present value of $5,372,730. The Court finds that there is no evidence to support this claim. The Court does find that the [husband’s] interest in this company will most likely be worth less than the current debt and will become even less valuable as time passes and interest and other costs and expenses are paid. The sale of lots in this development have apparently generated only enough funds to cover the monthly maintenance costs of the project.
“17. The [husband] values the furniture and furnishings at 100 Asphodel between $300,000 and $500,000. The [wife] values this property at only $45,000. The Court is unable from the evidence to make any finding of a realistic value of this property.
“18. The [husband] has been the sole means of support for the two sons, both before and after the separation, and he is able to continue to provide adequate support for them.... ”

After making its findings of fact, the trial court made its award of periodic alimony and property division, which the Court of Civil Appeals accurately summarized:

“The trial court awarded the wife periodic alimony of $4,000 per month for 12 months, beginning on October 1, 2001, or until the wife was employed in her profession as a nurse anesthetist. The wife was awarded the beach condominium and its contents, the Robalo boat, the personal watercraft, and the 2000 [Chevrolet] Tahoe. She was awarded her jewelry and the furnishings of four rooms in the marital home — the kitchen, the living room, the master bedroom, and the front foyer. The wife was also given the use of the residence at 403 Dunleith Boulevard until she remarried or cohabited with a member of the opposite sex, in which event the property would be sold and the net proceeds divided equally between the parties. The husband was ordered to pay the indebtedness on the property at 403 Dunleith Boulevard. The wife was also awarded the house in which her mother was residing at 201 Dunleith Boulevard. The wife was ordered to pay the mortgage indebtedness on that property. The trial court’s judgment provides that if the wife is ever in default on the mortgage payment for more than 60 days, the title to that property shall immediately vest in the husband.
“In the original judgment, the wife was given 25% of the husband’s pension and profit-sharing account. After a hearing on the husband’s postjudgment motion, however, the trial court reduced the wife’s share to 23%.
“The husband was awarded the marital home and those contents not specifically awarded to the wife. He was ordered to pay the indebtedness on that home. He was also awarded the Coffee County farmland, the farm implements, the travel trailer, and the recreational vehicle, as well as all automobiles not awarded to the wife. He was awarded the children’s educational fund, his interest in Moore Development, LLC, as well as its indebtedness, and his interest in his medical practice. He was [ultimately] awarded 7[7]% of his pension and profit-sharing plan. The husband was ordered to be solely responsible for all debts that arose during the marriage, before the wife filed for divorce. Each party was ordered to be responsible for debts he or she incurred after the wife filed for divorce. Each party was ordered to pay his or her own attorney fee.”

Moore v. Moore, 873 So.2d at 1157-58.

The monthly mortgage payment on the residence at 403 Dunleith Boulevard is $1,250.

II. Standard of Review

This Court recently stated the standard of review an appellate court must apply in reviewing a judgment awarding alimony and dividing property:

“ ‘ “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)....
“ ‘ “The trial court has wide discretion over alimony and the division of property, and it may use whatever means are reasonable and necessary to equitably divide the parties’ property. Grimsley v. Grimsley, 545 So.2d 75, 77 (Ala.Civ.App.1989). Its judgment is presumed correct and will not be reversed unless it is so unsupported by the evidence ... as to be unjust and palpably wrong. Grimsley, 545 So.2d at 76. However, that judgment is subject to review and revision. Moody v. Moody, 641 So.2d 818, 820 (Ala.Civ.App.1994). This Court must consider the issues of property division and alimony together when reviewing the decision of the trial court, Albertson v. Albertson, 678 So.2d 118, 120 (Ala.Civ.App.1996), and, because the facts and circumstances of each divorce case are different, this court must also consider the particular facts and circumstances of the case being reviewed. Murphy v. Murphy, 624 So.2d 620, 623 (Ala.Civ.App.1993).”
‘Bushnell v. Bushnell, 713 So.2d 962, 964-65 (Ala.Civ.App.1997).’ ”

Ex parte Foley, 864 So.2d 1094, 1097 (Ala.2003)(quoting Ex parte Drummond, 785 So.2d 358, 360-61 (Ala.2000)).

III. Analysis

“ ‘ “ ‘[P]roperty divisions are not required to be equal, but must be equitable in light of the evidence, and the determination as to what is equitable rests within the sound discretion of the trial court.’ ” ’ Ex parte Durbin, 818 So.2d 404, 408 (Ala.2001) (quoting Morgan v. Morgan, 686 So.2d 308, 310 (Ala.Civ.App.1996), quoting in turn Duckett v. Duckett, 669 So.2d 195, 197 (Ala.Civ.App.1995)).
“ ‘When dividing marital property, a trial court should consider several factors, including the length of the marriage; the age and health of the parties; the future prospects of the parties; the source, type, and value of the property; the standard of living to which the parties have become accustomed during the marriage; and the fault of the parties contributing to the breakup of the marriage .’
“Golden v. Golden, 681 So.2d 605, 608 (Ala.Civ.App.1996).
“The Court of Civil Appeals has previously stated the purpose of a periodic-alimony award:
“ ‘The purpose of periodic alimony is to support the former dependent spouse and to enable that spouse, to the extent possible, to maintain the status that the parties enjoyed during the marriage, until the spouse is self-supporting or maintaining a status similar to the one enjoyed during the marriage.’
“O’Neal v. O’Neal, 678 So.2d 161, 165 (Ala.Civ.App.1996). However, as stated above, such an award is within the trial court’s discretion.”

Ex parte Foley, 864 So.2d at 1097-98.

The Court of Civil Appeals did not find that the trial court had exceeded its discretion. Instead, the Court of Civil Appeals “conclude[d] that the trial court’s alimony award and its division of the marital estate ... was inequitable.” Moore v. Moore, 873 So.2d at 1160. However, as stated above, the determination of what is equitable rests within the broad discretion of the trial court. “It is not for an appellate court to substitute its judgment for that of the trial court.” Ex parte Durbin, 818 So.2d 404, 409 (Ala.2001). The trial court’s findings of fact clearly reflect its consideration of all relevant factors, and it appears that the Court of Civil Appeals substituted its judgment for that of the trial court. “We must remember that ‘[w]e are authorized to disturb the trial court’s' decision only if it is unsupported by the evidence and, therefore, is unjust and palpably wrong.’ ” Id. (quoting Grimsley v. Grimsley, 545 So.2d 75, 76 (Ala.Civ.App.1989)).

Judge Crawley dissented from the Court of Civil Appeals’ holding that the trial court’s property-division and periodic-alimony awards were inequitable, and wrote:

“The wife received a substantial marital-property award. Although the monthly periodic-alimony payments of $4,000 from the husband were to end in 12 months, the trial court compensated for the lack of a monthly payment by awarding the wife the use of a $200,000 house on which the husband was ordered to pay the indebtedness and by ordering the husband to make the payments on the wife’s $30,000 vehicle. The majority’s reversal of the property-division and periodic-alimony awards constitutes, in my opinion, a substitution of this court’s judgment for that of the trial court.”

Moore v. Moore, 873 So.2d at 1161 (Crawley, J., concurring in part and dissenting in part). We agree with Judge Crawley. Also, we note that the wife was relieved of responsibility for substantial marital debts. Indeed, her continuing responsibility was limited to the mortgage indebtedness on a residence occupied by her mother, who had proven her ability to pay at least $600 per month for the privilege of living there.

We conclude that the trial court did not exceed the limits of its discretion in its award of alimony or its division of the marital property. Based upon our review of the record, we cannot say that this judgment was plainly or palpably wrong. In reversing the trial court’s judgment, the Court of Civil Appeals impermissibly reweighed the evidence. See Ex parte H.H., 830 So.2d 21, 25-26 (Ala.2002).

TV. Conclusion

After reviewing the record, we conclude that the trial court’s alimony award and its division of property were not plainly or palpably wrong. Therefore, we reverse the judgment of the Court of Civil Appeals insofar as it reversed portions of the judgment of the trial court, and we remand the ease for the Court of Civil Appeals to affirm the judgment of the trial court.

REVERSED AND REMANDED WITH DIRECTIONS.

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

      . The trial court's findings do not include a paragraph numbered 13.


author: PER CURIAM.

text:
    Theresa V. MOORE v. John P. MOORE, Jr.
    2010349.
    Court of Civil Appeals of Alabama.
    Aug. 8, 2003.
    W. Terry Bullard, Dothan, for appellant.
    Don P. Bennett, Dothan, for appellee.
   After Remand from the Alabama Supreme Court

PER CURIAM.

. The prior judgment of this court has been reversed to the extent it reversed the trial court’s alimony award and its division of property, and the cause remanded by the Supreme Court of Alabama. Ex parte Moore, 873 So.2d 1161 (Ala.2003). In compliance with the Supreme Court’s opinion, the judgment of the trial court is hereby affirmed.

AFFIRMED.

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


author: McMILLAN, Presiding Judge.

text:
    Joseph Q. STAFFORD v. STATE.
    CR-01-1875.
    Court of Criminal Appeals of Alabama.
    Aug. 29, 2003.
    Dennis J. Knizley, Mobile, for appellant.
    William H. Pryor, Jr., atty. gen., and Daniel W. Madison, asst. atty. gen., for appellee.
   McMILLAN, Presiding Judge.

On May 23, 2001, a Baldwin County grand jury returned a 12-count indictment against Joseph Q. Stafford, charging him with one count of sexual abuse in the first degree for violating § 13A-6-66(a)(3), Ala. Code 1975 (count 1 of the indictment); four counts of sexual abuse in the first degree for violating § 13A-6-66(a)(l), Ala. Code 1975 (counts 2 through 5 of the indictment); five counts of enticing a child to propose sexual acts, a violation of § 13A-6-69, Ala.Code 1975 (counts 6 through 10 of the indictment); and two counts of harassment, a violation of § 13A-11-8(a)(l)a., Ala.Code 1975 (counts 11 and 12 of the indictment). The case came to trial on March 7, 2002. After the evidence was presented, the trial court instructed the jury on all the offenses charged in the indictment. In addition, the trial court instructed the jury that harassment was a lesser-included offense of sexual abuse in the first degree, the offense charged in counts 1 through 5 of the indictment. The jury then found Stafford guilty of harassment as a lesser-included offense of the offense charged in count 1 and count 5 of the indictment. The jury returned verdicts acquitting Stafford as to the remaining charges against him (counts 2, 3, and 4 and counts 6 through 12 of the indictment). The trial court sentenced Stafford to 90 days in jail for each conviction, the sentences to be served consecutively. The trial court suspended the sentences, placing Stafford on probation for two years.

On appeal, Stafford contends that his convictions for harassment are due to be set aside because, he argues, harassment is not a lesser-included offense within the offense of sexual abuse in the first degree.

Section 13A-1-9, Ala.Code 1975, provides:

“(a) A defendant may be convicted of an offense included in an offense charged. An offense is an included one if:
“(1) It is established by proof of the same or fewer than all the facts required to establish the commission of the offense charged; or
“(2) It consists of an attempt or solicitation to commit the offense charged or to commit a lesser included offense; or
“(3) It is specifically designated by statute as a lesser degree of the offense charged; or
“(4) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interests, or a lesser kind of culpability suffices to establish its commission.”

In Ex parte N.W., 748 So.2d 190 (Ala.1999), the Alabama Supreme Court stated:

“ ‘Where all the elements of an offense separate from the offense charged are present in or are included among elements of [the] charged offense, such separate offense is a lesser included offense for which [the] defendant may be convicted, though acquitted of the offense charged. To be necessarily included in the greater offense, the lesser must be such that it is impossible to commit the greater without first having committed the lesser.’ ”

748 So.2d at 192, quoting Chambers v. City of Opelika, 698 So.2d 792, 794 (Ala.Crim.App.1996), quoting in turn Sharpe v. State, 340 So.2d 885, 887 (Ala.Crim.App.1976) (emphasis added in Chambers). See also, e.g., Vinson v. State, 601 So.2d 196, 198 (Ala.Crim.App.1992).

As indicated earlier, the jury found Stafford guilty of two counts of harassment, as a lesser-included offense of the offense of sexual abuse in the first degree charged in count 1 and count 5 of the indictment. For purposes of our analysis in this case, then, sexual abuse in the first degree is the “greater” offense. In count 1 of the indictment, Stafford was charged with sexual abuse in the first degree under § 13A-6-66(a)(3), Ala.Code 1975, which provides: “A person commits the crime of sexual abuse in the first degree if ... [h]e, being 16 years old or older, subjects another person to sexual contact who is less than 12 years old.” In count 5 of the indictment, Stafford was charged with sexual abuse in the first degree under § 13A-6-66(a)(1), Ala.Code 1975, which provides: “A person commits the crime of sexual abuse in the first degree if ... [h]e subjects another person to sexual contact by forcible compulsion.” “Sexual contact” is defined in § 13A-6-60(3), Ala.Code 1975, as “[a]ny touching of the sexual or other intimate parts of a person not married to the actor, done for the purpose of gratifying the sexual desire of either party.” Thus, when prosecuting sexual abuse in the first degree, the State must prove an element of intent, i.e., the intent to gratify sexual desire.

Harassment, the “lesser” offense for purposes of our analysis, is defined, in pertinent part, in § 13A-ll-8(a)(l)a., Ala. Code 1975, which provides: “A person commits the crime of harassment if, with intent to harass, annoy, or alarm another person, he or she ... [s]trikes, shoves, kicks, or otherwise touches a person or subjects him or her to physical contact.” Thus, when prosecuting harassment, the State must prove that a defendant acted with the intent to harass, annoy, or alarm.

Harassment is not a lesser-ineluded offense of sexual abuse in the first degree, because one does not necessarily have to fulfill the elements of harassment to be guilty of the offense of sexual abuse in the first degree. The crime of harassment requires proof of an element — the intent to harass, annoy, or alarm — that is not required to establish the crime of sexual abuse in the first degree. The intent to gratify sexual desires — which is an element of sexual abuse in the first degree— does not include an intent to harass, annoy, or alarm. Because an additional element or fact must be shown in a case of harassment, that offense may not be said to be included in the crime of sexual abuse in the first degree. Simply put, a defendant can commit the offense of sexual abuse in the first degree without also committing the offense of harassment.

A trial court lacks jurisdiction to enter a judgment of conviction as to an offense not included in the indictment. E.g., Williams v. State, 591 So.2d 582, 583 (Ala.Crim.App.1991). See also Rules 13.5(a) and 13.2(c), Ala. R.Crim. P. Because harassment may not be considered a lesser-ineluded offense of sexual abuse in the first degree, the trial court was, with respect to count 1 and count 5 of the indictment, without jurisdiction to enter a conviction for the offense of harassment; the convictions and sentences are therefore void. Accordingly, the judgment of the trial court is due to be, and it is hereby, reversed, and the cause is remanded.

REVERSED AND REMANDED.

COBB, SHAW, and WISE, JJ„ concur.

BASCHAB, J., recuses herself.

      . The record on appeal does not contain a complete transcript of Stafford's trial. Instead, Stafford has provided this court with the clerk’s record and with portions of the trial proceedings that contain only the trial court's jury instructions, the jury's verdicts, and the sentencing hearing. A transcript of the testimony presented at Stafford's trial is not contained in the record. The incomplete nature of the record, however, does not prevent us from assessing Stafford's argument, because the record contains the indictment and clearly reflects the jury’s verdict as to each count of the indictment.

      . Count 11 and count 12 of the indictment expressly charged Stafford with harassment; the jury acquitted Stafford as to those counts. The persons named in count 11 and count 12 as the victims were different from the victims named in count 1 and count 5 of the indictment.

      . “Forcible compulsion’’ is defined in § 13A-6-60(8), Ala.Code 1975, as "[plhysical force that overcomes earnest resistance or a threat, express or implied, that places a person in fear of immediate death or serious physical injury to himself or another person.”

      . Under § 13A-ll-8(a)(l)b„ Ala.Code 1975, a person also commits the crime of harassment “if, with intent to harass, annoy, or alarm another person, he or she ... [djirects abusive or obscene language or makes an obscene gesture towards another person.” The jury in Stafford's case was instructed as to harassment only as the term is defined under § 13A-ll-8(a)(l)a.

      . This analysis applies to the crime of harassment as defined in both § 13A-ll-8(a)(l)a. and § 13A-ll-8(a)(l)b., because both sections require the intent to harass, annoy, or alarm. Furthermore, the crime of harassment as defined in § 13A — 11—8(a)(l)b. requires proof of another element that is not required to establish the crime of sexual abuse in the first degree, i.e., the directing of abusive or obscene language or the making of an obscene gesture toward another person. Clearly, one can fulfill the requirements of sexual abuse in the first degree without using abusive or obscene language or obscene gestures required for the crime of harassment under § 13A — 11—8(a)(l)b.

      .We note that if the facts underlying the allegations in count 1 and count 5 of the indictment would support a conviction for harassment, the State may reindict Stafford for the proper offense. See Ex parte Cole, 842 So.2d 605, 609 (Ala.2002).