author: SEE, Justice. HARWOOD, Justice

text:
    LIBERTY NATIONAL LIFE INSURANCE COMPANY v. Charles E. INGRAM. Charles E. Ingram v. Liberty National Life Insurance Company.
    1020911 and 1021032.
    Supreme Court of Alabama.
    Feb. 20, 2004.

      Scott Burnett Smith of Bradley Arant Rose & White, LLP, Huntsville; Kenneth M. Perry and Matthew H. Lembke of Bradley Arant Rose & White, LLP, Birmingham; and Philip H. Butler of Bradley Arant Rose & White, LLP, Montgomery, for appellant/cross-appellee Liberty National Life Insurance Company.
    Ernestine S. Sapp of Gray, Langford, Sapp, McGowan, Gray & Nathanson, Tuskegee; and S. Sanford Holliday, Roanoke, for appellee/cross-appellant Charles E. Ingram.

      . The trial court gave the following instruction, which was requested by Ingrain:
      “In order to recover from [sic] misrepresentation or fraud, the plaintiffs reliance must have been reasonable under the circumstances. In determining whether the plaintiff’s reliance has been reasonable, you may take into consideration all of the circumstances surrounding a transaction, in-eluding the mental capacity, educational background, relative sophistication, and bargaining power of the parties. A plaintiff has not reasonably relied upon a misrepresentation if the circumstances are such that a reasonably prudent person who exercised ordinary care would have discovered the true facts before acting on the alleged misrepresentation.”

   SEE, Justice.

Liberty National Life Insurance Company (“Liberty National”) appeals from the denial of its posttrial motions for a judgment as a matter of law and for a new trial in an action brought by Charles Ingram alleging, among other things, fraud and suppression. Liberty National also appeals the trial court’s remittitur of the compensatory damages and the punitive damages, arguing that the trial court erred when it failed to remit the jury’s $200,000 compensatory-damages award to an amount less than $60,000, and when it failed to reduce the jury’s $3,000,000 punitive-damages award to an amount less than $180,000. We hold that Ingram’s claims are barred by the applicable statute of limitations, and that even if they were not Ingram failed to demonstrate that he reasonably relied on Liberty National’s alleged representations to him regarding the insurance policy or that Liberty National suppressed a material fact; therefore, we reverse the trial court’s judgment and render a judgment as a matter of law in favor of Liberty National.

I.

On March 19, 1996, Ingram sued Liberty National alleging fraud, suppression, deceit, wantonness, civil conspiracy, bad faith, and conversion in regard to an insurance policy he purchased from Liberty National. The claims arose out of Ingram’s purchase of a “LifePlus” policy, which Ingram says he understood would be paid up in 10 years, at which time he would no longer be required to pay premiums on the policy. Liberty National moved to dismiss the action or for a more definite statement. The trial court dismissed Ingram’s bad-faith and civil-conspiracy claims, and ordered Ingram to amend his complaint to plead fraud more particularly. Ingram amended his complaint to allege that Liberty National’s agent, Jerry Cook, convinced him to buy a $15,000 policy covering the life of his daughter. Ingram further alleged that Cook described the policy as an investment and told him that the policy would be paid up if he paid the premiums for 10 years; he also alleged that Cook suppressed the fact that the interest rate of 9.75% used to arrive at the 10-year period was not a guaranteed rate of interest. Liberty National moved for a summary judgment, arguing that Ingram’s claims were barred by the statute of limitations. The trial court denied Liberty National’s motion as to the fraud and suppression claims and granted the motion as to the remaining claims.

The case went to trial on September 9, 2002. Liberty National moved for a judgment as a matter of law both at the close of Ingram’s case and at the close of all the evidence. The trial court denied both motions. The jury returned a verdict for Ingram, awarding him $200,000 in compensatory damages and $3,000,000 in punitive damages. Liberty National renewed its motion for a judgment as a matter of law, and alternatively moved for a new trial or for a remittitur. The trial court denied Liberty National’s motion for a judgment as a matter of law or a new trial, but remitted the compensatory-damages award to $60,000 and the punitive-damages award to $180,000. Liberty National appeals. Ingram cross-appeals, requesting that this Court reinstate the jury’s $3,200,000 verdict.

II.

When reviewing a ruling on a motion for a judgment as a matter of law, this Court applies the same standard the trial court used in deciding the motion. Alfa Life Ins. Corp. v. Green, 881 So.2d 987, 988 (Ala.2003). In Green, this Court stated:

“ We must decide whether there was substantial evidence, when viewed in the light most favorable to the plaintiff, to warrant a jury determination. City of Birmingham v. Sutherland, 834 So.2d 755 (Ala.2002). In Fleetwood Enters., Inc. v. Hutcheson, 791 So.2d 920, 923 (Ala.2000), this Court stated that “ ‘[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.’ ” 791 So.2d at 923 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)).’ ”

III.

In July 1985, Ingram returned home from work and found Jerry Cook, a Liberty National agent, waiting for him. Ingram alleges that Cook represented to him that the policy he was considering was similar to an investment, that it had a fixed interest rate of 9.75%, and that if Ingram paid the premiums for 10 years he would not have to pay any more premiums on the policy. Cook could not recall the specifics of this conversation. Ingram agreed to buy the policy and Cook delivered the policy in August 1985. At that time, Cook again explained the policy to Ingram, using tables that illustrated the projected and guaranteed values of the policy. Although the table reflected both projected and guaranteed values, Ingram alleges that Cook discussed with him only the projected values and that Ingram did know that the values they were discussing were the projected — not the guaranteed — values. Ingram testified as follows:

“Q. Okay. Mr. Cook, when he sold you this Life Plus policy, didn’t guarantee you that the 9.75 percent interest would stay at 9.75, did he?
“A. No, sir. He didn’t guarantee that it would stay there.
“Q. Right. And, in fact, he told you that the interest rate, that current interest rate could change, didn’t he?
“A. I don’t — He could have. More, right. You’re right. He said 9.75 or more.
“Q. Yes, sir. He also could have told you — Are you denying that he told you that it could also be less that 9.75?
“A. I don’t remember him ever saying less.
“Q. But he could have told you less, couldn’t he?
“A. Well, he could have. But I said I don’t remember him telling me that.
“Q. I understand that. All right, sir. But we know he didn’t guarantee it would stay that much?
“A. I didn’t say he did.”

Ingram also testified that he knew that the illustrations of the value of the policy were dependent upon the 9.75% interest rate. Ingram also admits that he did not read the policy and that he would not have purchased the policy if he had read it. Ingram, since July 1985, has paid, and continues to pay, a monthly premium of $14.55.

Liberty National mailed Ingram yearly reports regarding his policy. The first report indicated that the interest rate had dropped from 9.75% to 7%. The reports Ingram received in 1987, 1988, 1989, and 1990 reflected an interest rate for those years of 8%. Ingram received a report every year thereafter, and the interest rates reflected in those reports varied from 5% to 8%. In August 1995, Ingram received the yearly report on his policy from Liberty National. Liberty National had changed the form of the report; it now included a statement that the premiums were payable for the life of the policy. After reading this statement, Ingram telephoned Liberty National. In response to Ingram’s telephone call, Liberty National sent two agents to Ingram’s house to discuss the policy with him. Ingram alleges that the agents represented to him that they would “take care of it” and that Ingram did not have to continue paying premiums on the policy. Ingram did not hear from the Liberty National agents again.

In March 1996, Ingram sued Liberty National. He claims that the situation with the policy has made him nervous and caused him to lose sleep. He has not sought professional help for those problems, although he has taken aspirin to alleviate them.

Ingram has the equivalent of a seventh-grade education. He has worked in a mill for 47 years. When Ingram purchased the policy, he was 52 years old. At the time of trial, Ingram had been a Liberty National policyholder for approximately 37 years; he has owned numerous policies. Although Ingram alleges in his brief to this Court that he is illiterate, he admitted during the course of this litigation that he can read and write.

The life insurance policy at issue is an excess-interest whole-life policy. This policy was not designed to be a vanishing-premium policy; instead, it was designed to provide the same benefits as an ordinary whole-life policy. The policy is interest sensitive; however, it guarantees a rate of at least 4%. It reflected guaranteed and projected cash values. The guaranteed cash value was based on the 4% guaranteed accumulation interest rate; the projected value was based on a 9.75% accumulation interest rate. The insured has the option of purchasing paid-up insurance with the cash value of the policy; If the insured does not choose this option, the policy matures when the insured reaches age 100. The first page of the policy clearly states, in bold capital letters: “READ YOUR POLICY CAREFULLY.” The first page also provides that an insured may cancel the policy and receive a full refund of any premiums paid within 10 days of receipt of the policy. Page .3 contains a benefit and premium schedule. The word “life” is written under the “years payable” column. Also, page 3-A contains a table of interest rates, which provides that the guaranteed accumulation interest rate on the LifePlus policy is 4%. The policy also contains a table of guaranteed and projected values. This table indicates that when the insured reaches age 62, the monthly income from the policy based on the 4% guaranteed accumulation interest rate is $19.92, and the projected monthly income from the policy based on the 9.75% accumulation interest rate is $250.69.

IV.'

In Foremost Insurance Co. v. Parham, 693 So.2d 409 (Ala.1997), this Court held that to recover for fraud, the plaintiff must prove that he or she reasonably relied on the defendant’s misrepresentation. Before the Foremost decision was released, it was sufficient if the plaintiff proved that he or she had “justifiably” relied on the defendant’s misrepresentation. See Hickox v. Stover, 551 So.2d 259 (Ala.1989), overruled by Foremost

This action was filed before this Court decided Foremost; however, Ingram requested that the trial court charge the jury on the reasonable-reliance standard. Because Ingram did not object to — indeed, he requested — the reasonable-reliance jury instruction, the reasonable-reliance standard became the law of the case before us. See Rule 51, Ala. R. Civ. P., providing, in pertinent part:

“No party may assign as error the giving or failing to give a written instruction, or the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge unless the party objects thereto before the jury retires to consider its verdict, stating the matter objected to and the grounds of the objection.”

See also Alfa Mutual Insurance Co. v. Northington, 561 So.2d 1041, 1047 (Ala.1990), which states':

“This Court cannot undertake to review the propriety of a trial court’s oral charge unless that charge has been timely objected to and the objection has been overruled by the trial court.... There is no ruling by the trial court for us to review on the issue of the constitutionality vel non of punitive damages, and thé trial court’s oral charge became the law of the case.”

Therefore, the post-Foremost standard applies.

Liberty National also requested and received a jury instruction on the post-.Foremost standard for determining when the statute of limitations began to run. Ingram did not object to this charge. Therefore, the post-Foremost standard for determining when the statute of limitation began to run became the law of the case.

This Court in Foremost stated:

“If we were to apply the objective standard for determining the statute of limitations issue in fraud cases that existed before Hicks [v. Globe Life & Accident Insurance Co., 584 So.2d 458 (Ala.1991),] and that has been readopted today, we would hold that the plaintiffs should have discovered [the sales agent’s] misrepresentation concerning the first year’s premiums when they signed and received their sales documents. Because they each received their sales documents more than two years before filing this action, their misrepresentation claims would be barred by the two-year statute of limitations.”

693 So.2d at 422.

Liberty National argues that Ingram’s fraud and suppression claims were barred by the statute of limitations. “Claims of fraudulent misrepresentation and suppression are subject to a two-year statute of limitations.” Foremost, 693 So.2d at 417, citing § 6-2-38(l), Ala.Code 1975. Ingram signed the application for the insurance policy on July 10,1985. The agent delivered the policy on August 1, 1985. Therefore, the statute of limitations began to run, at the latest, on August 1, 1985, when Ingram “received [his] ... doc-umenta,” Foremost, 693 So.2d at 422; therefore, when Ingram filed the underlying action on March 19,1996, his claim was more than 10 years old and was barred by the two-year statute of limitations.

Moreover, in order to recover for fraud, Ingram must establish (1) that Liberty National made a false representation, (2) that the misrepresentation involved a material fact, (3) that Ingram relied on the misrepresentation, and (4) that the misrepresentation damaged Ingram. See § 6-5-101, Ala.Code 1975, and Foremost, 693 So.2d at 422.

This Court in Foremost stated:

“[W]e conclude that the ‘justifiable reliance’ standard adopted in Hickox [v. Stover, 551 So.2d 259 (Ala.1989)], which eliminated the general duty on the part of a person to read the documents received in connection with a particular transaction (consumer or commercial), should be replaced with the ‘reasonable reliance’ standard most closely associated with Torres v. State Farm Fire & Casualty Co., 438 So.2d 757 (Ala.1983). The ‘reasonable reliance’ standard is, in our view, a more practicable standard that will allow the factfinder greater flexibility in determining the issue of reliance based on all of the circumstances surrounding a transaction, including the mental capacity, educational background, relative sophistication, and bargaining power of the parties. In addition, a return to the ‘reasonable reliance’ standard will once again provide a mechanism ... whereby the trial court can enter a judgment as a matter of law in a fraud case where the undisputed evidence indicates that the party or parties claiming fraud in a particular transaction were fully capable of reading and understanding their documents, but nonetheless made a deliberate decision to ignore written contract terms.”

693 So.2d at 421.

In the present case, it appears that Ingram was capable of reading the policy and the yearly reports he received regarding the policy. Ingram alleges in his brief to this Court that he would not have understood the policy if he had read it, and he cites a page of the record as support for that allegation. (Ingram’s brief in case no. 1021032, p. 8.) However, the record does not support this allegation. The policy indicates both that premiums were payable for the life of the policy and that the guaranteed accumulation interest rate was 4%, not 9.75%. Ingram also received at least nine yearly reports, each of which indicated that the interest rate used to calculate the value of the policy was below 9.75%.

Both of the plaintiffs in Foremost had the equivalent of a high-school education or better, and both plaintiffs testified that they would have discovered the alleged fraud if they had read their sales documents and insurance policies. This Court stated in that case that “[i]f we were to apply the objective standard for determining the statute of limitations issue in fraud cases ... that has been adopted today, we would hold that the plaintiffs should have discovered [the agent’s] misrepresentation when they signed and received their sales documents.” 693 So.2d at 422. Ingram similarly testified that he would not have purchased the policy if he had read it.

In Green, supra, the plaintiffs, Bonnie and Andy Green, had an eleventh-grade education and a high-school education, respectively. Both Greens were 47 years old at the time they purchased the policy. Andy had owned a tire business for 20 years and a hay business for 10 years, and he had employed lawyers and other professionals to assist him with those businesses. Bonnie worked as a bookkeeper. The Greens alleged that the Alfa agent misrepresented or suppressed information regarding an insurance policy the Greens purchased insuring Bonnie’s life. Specifically, the Greens alleged that the agent indicated that the Greens would not have to pay premiums “after either the seventh or ninth year, but in no case beyond the ninth year.” Green, 881 So.2d at 988-89. At the time the agent allegedly made the misrepresentations, the Greens were shown a document that indicated that “the policy they were presented with was an ‘Interest Sensitive Plan’; that the column of the policy headed ‘Guaranteed’ showed that the Greens would have to pay $8,115 annual premiums until Ms. Green was 75 years of age or for 28 years; and that the policy would be paid up in nine years only if the interest rates remained at 8.5%, as indicated in the column headed ‘Projected Vanish — 8.500%.’ ” 881 So.2d at 992. This Court held “that the Greens have not shown any reasonable reliance by them on anything [the agent] said before the Greens paid the partial premium.” 881 So.2d at 992. See also Oakwood Mobile Homes, Inc. v. Barger, 773 So.2d 454 (Ala.2000).

In the present case, Cook allegedly represented to Ingram that the policy he was purchasing would accumulate value based on a fixed interest rate of 9.75% or more, and that if Ingram paid the premiums for 10 years he would no longer have to pay premiums; however, the policy indicates both that premiums were payable for the life of the policy and that the guaranteed accumulation interest rate was 4%, not 9.75%. Ingram also received nine yearly reports that indicated that the actual interest rate earned during the term of the report was below 9.75%. Ingram was capable of reading the policy and the yearly reports. Ingram did not reasonably rely on Cook’s representation.

Liberty National appeals the trial court’s denial of its motion for a judgment as a matter of law not only as to Ingram’s fraud claim, but also as to Ingram’s fraudulent-suppression claim. In order to establish fraudulent suppression, Ingram had to present substantial evidence indicating (1) that Liberty National suppressed a material fact (2) that Liberty National had a duty to disclose (3) because of a confidential relationship between Liberty National and Ingram or because of the circumstances of the case, and (4) that Ingram was damaged as a proximate result of the suppression. § 6-5-102, Ala. Code 1975, and Richardson v. Liberty Nat'l Life Ins. Co., 750 So.2d 575, 578 (Ala.Civ.App.1999). However, in Richardson, the Court of Civil Appeals stated: “If one receives from a defendant documents that put him on notice of the very facts alleged to have been suppressed, then that defendant cannot have suppressed those facts.” Id., citing Robinson v. JMIC Life Ins. Co., 697 So.2d 461 (Ala.1997); Henson v. Celtic Life Ins. Co., 621 So.2d 1268 (Ala.1993); Hardy v. Blue Cross & Blue Shield, 585 So.2d 29 (Ala.1991); and Tillery v. Security Pac. Fin. Servs., Inc., 703 So.2d 402 (Ala.Civ.App.1997). Ingram received several documents from Liberty National that contained the allegedly suppressed information. Therefore, we conclude that Ingram has not established that Liberty National suppressed a material fact.

V.

Viewing the evidence in the light most favorable to Ingram, we hold that Ingram’s claims are barred by the applicable statute of limitations, and that, even if they were not, Ingram has not established that he reasonably relied on Liberty National’s alleged misrepresentations or that Liberty National suppressed a material fact. It was, therefore, reversible error for the trial court to deny Liberty National’s motion for a judgment as a matter of law. We reverse the trial court’s order denying Liberty National’s motion for a judgment as a matter of law and render a judgment as a matter of law in favor of Liberty National. Because of our resolution of Liberty National’s appeal, we dismiss Ingram’s cross-appeal as moot.

1020911 — REVERSED AND JUDGMENT RENDERED.

1021032 — DISMISSED AS MOOT.

LYONS, BROWN, and STUART, JJ., concur.

HARWOOD, J., concurs in the rationale in part and concurs in the judgment.

HARWOOD, Justice

(concurring in the rationale in part and concurring in the judgment).

I concur fully in that portion of the opinion holding that Charles Ingram’s claims alleging fraud by misrepresentation and fraudulent suppression of material fact were time-barred under the applicable statute of limitations. The main opinion notes the contents of the policy delivered to Ingram and the explicit statement of the applicable interest rate in each of the yearly reports for the five years 1986 through 1990, which were all less than the 9.75 percent interest rate Ingram alleges was guaranteed. Therefore, whether the statute of limitations began to run as of the date of the delivery of the policy on August 1, 1985, or at some later point in time when the yearly reports would have clearly demonstrated to Ingram that the interest rate on which cash value accumulated was not 9.75 percent, is not controlling; Ingram had been clearly, and repeatedly, advised of the applicable interest rates much more than two years before he filed his action. Therefore, I agree that the judgment in this case should be reversed and a judgment rendered for Liberty National on that basis, as stated in the concluding paragraph of the opinion. Consequently, I need not reach, or comment upon, the alternative rationale that Ingram did not reasonably rely on the misrepresentation or the suppression of a material fact.

      . Ingram testified as follows:
      "Q. Well, thank you sir, but I would ask you to please tiy to answer my question. You understood from talking with Mr. Cook at the time he explained this LifePlus policy to you that in order for your policy values to build like he was showing you on the illustration, that the interest rate was dependent upon the 9.75 interest rate, didn't you?
      "A. Right. Right.”

      . The 1986 report stated "CURRENTLY CREDITED RATE OF INTERESTS) 7%.” The reports sent by Liberty National after 1986 were in a different form. They stated, in pertinent part, "Interest was credited on your money during the previous three quarters at rates of 8.0%, 8.0%, and 8.0%. During the current quarter, interest was credited at the rate of 8.0%.”

      . The trial court instructed the jury as follows:
      "The defendants contend that the plaintiff is not entitled to recover because the plaintiff’s claims are barred by the applicable statute of limitations of two years. In cases where fraud is claimed as a basis of relief, this claim must not be considered as having accrued ... until the plaintiff has discovered the fraud or reasonably should have discovered the fraud. Facts constituting fraud are not to be considered as discovered when he should have — when he should have been discovered by a reasonable prudent person.
      "Facts constituting fraud are to be considered as discovered when he should have been discovered by a reasonably prudent person. That's how it reads.
      "The burden of proof is upon the plaintiff to reasonable satisfy you by the evidence that this action was commenced within two years from the accrual of the plaintiff’s right of action. This action was commenced March 19, 1996. Mr. Ingram could not bring this case until he learned of the fraud.
      "Fraud is deemed to have been discovered when the person either actually discovered or ought to or should have discovered facts which would have provoked inquiry by a person of ordinary prudence and by simple investigation of the facts the fraud would have been discovered.”

      . In Oakwood, the plaintiffs claimed that Oak-wood Mobile Homes misrepresented to them that a document was "for insurance purposes” for Oakwood, when in fact that document, signed by one of the plaintiffs, was an arbitration agreement. This Court noted that the document was clearly titled "Arbitration Agreement” and that the plaintiff who signed the document did not allege that he could not read or that he was somehow prevented from reading the document. This Court stated that the plaintiff's reliance on the representation that the document was for insurance purposes "was not reasonable inasmuch as [the plaintiff] would have had to have closed his eyes to the truth to believe that the document was not an arbitration agreement.” 773 So.2d at 461.


source: Caselaw Access Project

author: LYONS, Justice.

license: Public Domain

text:
    Frank T. SALTER v. Harold W. HAMITER and Gillis E. Ralls, as personal representatives of the estate of Mary Ellen Knowles.
    1021358.
    Supreme Court of Alabama.
    Feb. 20, 2004.

      Edward T. Hines and Broox G. Garrett, Jr., of Thompson, Garrett & Hines, L.L.P., Brewton, for appellant.
    J. Mark Murphy of Murphy, Murphy & McCalman, P.C., Andalusia; and John M. Peek of Peek & Weaver, P.C., Andalusia, for appellees.
   LYONS, Justice.

Frank T. Salter appeals from the trial court’s April 25, 2003, judgment declaring void three warranty deeds from Mary Ellen Knowles to Salter. We reverse the trial court’s judgment and render a judgment for Salter.

I. Facts and Procedural History

The evidence in the record reveals the following facts. Frank T. Salter first met Mary Ellen Knowles in the early 1960s; the two became business associates and good friends. They engaged in many business ventures together in which Knowles acted as the bookkeeper. In October 1966, Knowles gave Salter power of attorney over all of her assets. On March 13, 1967, Knowles executed a will leaving everything she owned to Salter. At some point after she had executed the will, Knowles deeded all of the real property she owned in Choctaw County, Escambia County, Dale County, Conecuh County, and Covington County to Salter. The only deeds that are of issue in this case cover the real property located in Conecuh County and Covington County, totaling approximately 1,000 acres.

In an attempt to effectuate the transfer of the three parcels of property located in Conecuh County and Covington County, Knowles executed three deeds in November 1967. After executing the deeds, Knowles presented them to her attorney and told him that it was her desire to transfer title of the described properties to Salter, and she wanted to know if the deeds “looked alright.” According to her attorney, Knowles, not wanting any trouble with her family, also asked her attorney what would happen if the deeds were not recorded until after her death. Knowles’s attorney told her that the deeds “looked fine.” Her attorney testified that he explained to Knowles the consequences of not recording the deeds and further explained that “delivery” of the deeds to the grantee was an essential element for the conveyance of real property.

A couple of months after Knowles met with her attorney to discuss the deeds, she was admitted to the hospital to undergo some tests. While at the hospital, she telephoned her attorney and asked him to come to the hospital to witness her delivery of the deeds to Salter and to make sure that the delivery of the deeds was a “good delivery.” When Salter and Knowles’s attorney arrived at the hospital, Knowles retrieved the deeds from her purse and handed them to Salter. Once Salter had the deeds in his hand, Knowles’s attorney advised her that what had just transpired was “a sufficient delivery of the deeds.” Knowles requested at this time that Salter not record the deeds until after her death. Salter retained physical possession of the deeds. After the delivery of the deeds, Salter managed the timber property on the lands conveyed to him by the deeds, possessed keys to all of the gates located on the properties, and hunted on the properties. The properties remained in Knowles’s name for purposes of ad valorem tax assessments; however, the invoices for those taxes were mailed to one of two businesses operated jointly by Salter and Knowles — Salter Truck and Tractor and Salter and Knowles’s Brooklyn farming operation — and many of the invoices were paid from one of the joint business bank accounts maintained by Salter and Knowles. There is also evidence indicating that, following the delivery of the deeds to Salter, Knowles sold timber off and leased mineral rights to the properties described in the deeds; she also sold parcels of land included in the properties described in the deeds. Nevertheless, several of the purchasers testified that Salter knew of and consented to those transactions and even stated that Knowles would not make a decision concerning a sale without Salter’s consent.

In September 1985, Knowles executed another will; the will contained no reference to the real property located in Cone-cuh County and Covington County. During the consultation with her attorney in preparation for drafting this will, Knowles told her attorney that she had already deeded most of her property to Salter and that she was aware that she did not have title to any of the real property she had previously conveyed to Salter.

All three deeds remained in the exclusive possession and control of Salter until Salter recorded them several days after Knowles’s death on May 28, 2000.

In October 2000, the representatives of Knowles’s estate, Harold Hamiter and Gil-lis Ralls (“the Hamiter appellees”), filed the present action seeking to have the three deeds declared void because, they argued, (1) the deeds were not properly delivered, (2) the deeds violated the statute of wills, and (3) Salter was barred by the doctrine of laches because he had failed to assert his claim to ownership within 20 years of the date of the execution of the three deeds. The complaint was subsequently amended to assert additional claims based upon the rule of repose and the Statute of Frauds. After conducting a bench trial, the trial court on April 25, 2003, declared all three deeds void. The trial court specifically found (1) that the three deeds “were intended to be the equivalent of a will” and that, “as a will, none of the three deeds [met] the requirements of the statute of wills”; (2) that “there was no intent by Knowles to vest title, ownership and control of her lands in Salter at the time of the purported delivery of the deeds at issue”; and (3) that “Salter’s lack of action until after the death of Knowles [indicated] lack of present acceptance of the delivery.” Salter appeals.

II. Standard of Review

A. Ore Tenus Rule

“When a judge in a nonjury case hears oral testimony, a judgment based on findings of fact based on that testimony will be presumed correct and will not be disturbed on appeal except for a plain and palpable error.” Allstate Ins. Co. v. Skelton, 675 So.2d 377, 379 (Ala.1996). Nevertheless, this principle is not applicable where the evidence is undisputed, or where the material facts are established by the undisputed evidence. See Scott v. McGriff, 222 Ala. 344, 346, 132 So. 177, 179 (1930) (“The rule that the finding and conclusion of the trial court on testimony given ore tenus will be accorded the weight of the verdict of a jury, and will not be disturbed unless contrary to the great weight of the evidence, is without application, where the evidence is without dispute and but one conclusion can be drawn from it.”); see also Franklin v. State ex rel. Trammell, 275 Ala. 92, 93, 152 So.2d 158, 159 (1963); Henderson v. Henderson, 228 Ala. 438, 153 So. 646 (1934); Duggan v. Duggan, 227 Ala. 92, 148 So. 844 (1933); Marsh v. Elba Bank & Trust Co., 205 Ala. 425, 88 So. 423 (1920); Bowling v. State, 204 Ala. 405, 85 So. 500 (1920). When the trial court “improperly applies the law to the facts, the presumption of correctness otherwise applicable to the trial court’s judgment has no effect.” Ex parte Board of Zoning Adjustment of Mobile, 636 So.2d 415, 418 (Ala.1994).

B. Doctrine of Laches

In Horton v. Kimbrell, 819 So.2d 601, 606 (Ala.2001), this Court summarized as follows the standard of review for determining whether the doctrine of laches is applicable:

“The applicability of the doctrine of lach-es is ‘dependent upon the particular facts and circumstances’ of each case. Dear v. Peek, 261 Ala. 137, 141, 73 So.2d 358, 361 (1954). ‘Where the question of laches is presented, the facts and circumstances of each case govern the court in the exercise of the discretion thereby invoked for the determination of the inquiry.’ Jones v. Ball, 294 Ala. 654, 656, 320 So.2d 665, 667 (1975) (internal quotations omitted). The applicability of the doctrine is ‘committed to the sound discretion of the trial court.’ Wallace v. Hardee’s of Oxford, Inc., 874 F.Supp. 374, 377 (M.D.Ala.1995). Thus, whether a trial court erred in applying the doctrine of laches is reviewed under an abuse-of-discretion standard. Bishop v. Pierce, 726 So.2d 663, 666 (Ala.Civ.App.1998).”

III. Analysis

A. Deeds or Will

Salter first argues that the trial court erred by finding that Knowles intended the three deeds to be a will. Salter points out that Knowles knew the difference between a deed and a will as evidenced by the many deeds she had executed before she executed the deeds at issue here and by the three wills she had executed. Because Knowles knew the difference between the two types of documents, Salter argues, Knowles intended the documents here to be deeds as evidenced by the fact that she consulted with her attorney on how to transfer a valid present interest in the properties to Salter and by the fact that, after the deeds were delivered, she executed another will, in which she made no provision for the real property located in either Conecuh County or Covington County. Salter further argues that because deeds are irrevocable documents and wills cannot be irrevocable, it was Knowles’s intent that the three documents be deeds.

The Hamiter appellees respond by arguing that Knowles did not intend the documents to be deeds, which would convey a present interest in the properties to Salter, as evidenced by the fact that Knowles remained in possession and control of the properties located in Conecuh County and Covington County for 33 years following the alleged delivery of the documents. The Hamiter appellees point out that, between the time of the alleged delivery of the documents and her death, Knowles built a new house on one of the properties and resided there, mortgaged a portion of the properties, sold timber from the properties, leased mineral rights to the properties, executed a hunting lease on the properties, and sold portions of the properties to third parties. The Hamiter appellees contend that Knowles’s conduct indicated that she did not intend to convey a present, irrevocable interest in the properties to Salter, but instead intended the documents to be a will. The Hamiter appellees point out that the trial court, when addressing this issue in its judgment, used language identical to the language in Randolph v. Randolph, 245 Ala. 689, 18 So.2d 555 (1944), a case in which the court found a deed to be the equivalent of a will. The Hamiter appellees further argue that, because the purported will did not meet the requirements of the statute of wills, title to the properties located in Conecuh County and Covington County vested in Knowles’s devisees immediately upon her death.

As this Court stated in Henderson v. Henderson, 210 Ala. 73, 97 So. 353 (1923):

“In determining whether an instrument be a deed or a will, the controlling question is:
“ ‘Did the [grantor] intend any estate or interest whatever to vest before his death, and by the execution of the paper? Or ... did he intend that all the interest and estate should take effect only after his death? If the former, it is a deed; if the latter, a will; and it is immaterial whether he calls it a will or a deed; the instrument will have operation according to its legal effect.’ ”

210 Ala. at 92, 97 So. at 372. The grant- or’s intent must, if possible, be gathered from the language in the instrument. Graves v. Wheeler, 180 Ala. 412, 61 So. 341 (1913).

The three documents themselves evidence that Knowles intended the documents to be deeds. Each of the three documents states that Knowles “do[es] grant, bargain, sell, and convey” the properties described therein to Salter in exchange for $10. The use of the present tense in this statement evidences Knowles’s intention to convey title to the properties immediately rather than upon her death. The documents do not contain any words of revocation or condition. See Williams v. Higgins, 69 Ala. 517 (1881). The Hamiter appellees even concede in their brief to this Court that the documents are unconditional on their face. Ap-pellee’s brief at p. 20. Thus, there is no indication from the face of the documents that Knowles did not intend for Salter to enjoy the incidents of ownership of the properties as he did before her death. Because we can discern the grantor’s intent from the documents, there is no need to consider parol evidence. See Sipple v. Ogden, 628 So.2d 569, 571 (Ala.1993) (“In examining the four corners of the ... conveyance, it is clear to the Court that the instrument is unambiguous and, therefore, the Court is not required to resort to arbitrary rules of construction nor to receive extrinsic evidence in order to ascertain the intention of the parties, especially that of the grantor.”). Evidence as to Knowles’s continued transactions with third parties with respect to the properties is not relevant to determinating that these documents are deeds and thus not subject to the statute of wills.

Furthermore, the Hamiter appellees’ reliance on Randolph v. Randolph, supra, is misplaced. In Randolph, this Court held that a request for the cancellation of a deed was due to be granted because the grantor had been induced by fraud to convey the property. 245 Ala. at 694, 18 So.2d at 560. Such fraud negated the grantor’s intent to convey a present interest in the property. Unlike Randolph, no fraud claim is presented in the case before us.

The trial court erred to the extent it based its finding that the documents were invalid on noneompliance with the statute of wills.

B. Delivery and Acceptance of the Deeds

Salter next argues that the trial court erred in its conclusion that the deeds were neither validly delivered to him nor accepted by him. Salter quotes the undisputed testimony of Knowles’s attorney in which he detailed all of the events that transpired before the delivery of the deeds, during the delivery of the deeds at the hospital, and after the delivery of the deeds. Most notably, Knowles’s attorney explained that Knowles physically delivered the deeds to Salter, that she desired to effectuate an absolute transfer of title to Salter, and that she placed no conditions upon the conveyance. Salter points out that the trial court acknowledged the delivery of the deeds when it stated in its order that “the deeds were given to Salter [by Knowles] at the Evergreen hospital where Mrs. Knowles was having tests” performed. Salter argues that the trial court, having made this finding, erred by applying caselaw dealing with the delivery of a deed by a grantor to a third party, instead of caselaw addressing the delivery of a deed from a grantor to a grantee.

Alabama statutory law requires that, to effectuate a transfer of title to real property, a deed must be in writing and signed by the grantor, and the execution of the deed by the grantor must be attested to by at least one witness. See § 35-4-20, Ala.Code 1975. The deed must then be delivered to the grantee. See Williams v. Mobile Oil Exploration & Producing Southeast, Inc., 457 So.2d 962 (Ala.1984); see also Richard R. Powell & Patrick J. Rohan, 6A Powell on Real Property ¶ 898[2][a] at 81A-74 (1991). Delivery “may be actual, by a transfer of the conveyance, signed and attested, or acknowledged, from the manual possession of the grantor, to the manual possession of the grantee, though not a word is spoken; or it may be- by saying something and doing nothing.” Gulf Red Cedar Co. v. Crenshaw, 169 Ala. 606, 612, 53 So. 812, 813 (1910). Nevertheless, to meet the delivery requirement, it must be clear from the evidence that the grantor intended to divest himself or herself of title to the property and that the grantor relinquished control and dominion over the property. See McDuffie v. First Nat’l Bank of Tuskaloosa, 450 So.2d 451 (Ala.1984); Chaney v. Waddell, 624 So.2d 545 (Ala.1993). The intention of the grantor is “of paramount importance” in determining whether a deed has been delivered and is to be ascertained from all the circumstances surrounding the delivery. Boohaker v. Brashier, 428 So.2d 627, 629 (Ala.1983); Chandler v. Chandler, 409 So.2d 780, 782 (Ala.1981); Randolph v. Randolph, supra. Furthermore, when “a deed is found in the possession of a grantee, the presumption arises that it was duly delivered to him.” Williams v. Higgins, 69 Ala. 517, 522 (1881). The burden is on the complainant to rebut this presumption. Houston v. Stanton, 11 Ala. 412 (1847).

The evidence without dispute indicates Knowles’s intention to deliver the deeds to Salter during her hospitalization. Most convincing of her intention, as the trial court noted in its order, is the undisputed evidence that Knowles physically delivered the deeds to Salter and that minutes before doing so, Knowles told her attorney, “I want to deliver these deeds to Mr. Salter.” Knowles was adamant that this delivery be valid as evidenced by her insistence that her attorney orchestrate and witness the delivery and her consultations with her attorney concerning the steps that needed to be taken in order to vest title to the properties in Salter. Knowles, an astute businesswoman, knew the operative legal effect of delivering a deed as evidenced by her past conveyances of title in other properties to Salter and to third parties. It is apparent through the undisputed evidence of her actions and words on the occasion of her hospitalization that Knowles made a deliberate decision to transfer to Salter her title to the properties located in Conecuh County and Cov-ington County.

In order for a deed purporting to convey title to real property to be effective for that purpose, it not only must be delivered or tendered to the grantee or the grantee’s representative, but also must be accepted by or on behalf of the grantee. Vestavia Hills Bd. of Educ. v. Utz, 530 So.2d 1378, 1383 (Ala.1988). “When a deed is for the benefit of the grantee, imposing on him no burdens or duties, the presumption is of his acceptance.” Fitzpatrick v. Brigman, 130 Ala. 450, 456, 30 So. 500, 502 (1900). In the present case, the deeds did not impose any burdens or duties upon Salter, and there is, therefore, a presumption of Salter’s acceptance.

While the Hamiter appellees rely upon Salter’s failure to record the deeds until after Knowles’s death to overcome the presumption of his acceptance, Salter argues that he was not obligated to record the deeds, as the trial court suggested in its order when it stated that Salter’s “lack of action” indicated his lack of acceptance. The fact that Salter did not record the deeds until after Knowles’s death does not defeat the undisputed evidence of his acceptance of the deeds. It is a familiar rule of law in Alabama that “the validity of a deed, as between the grantor and grantee therein, is not dependent upon its timely recordation.” Murphree v. Smith, 291 Ala. 20, 24, 277 So.2d 327, 329 (1973). The recording statute, § 35-4-90, Ala. Code 1975, does not render void an unrecorded deed except for the benefit of those particular classes of persons named in the statute. Williams v. Fundaburk, 237 Ala. 30, 185 So. 383 (1938); Alexander v. Fountain, 195 Ala. 3, 70 So. 669 (1916). The recording statute does not include one’s heirs within the class of persons the statute is designed to protect. As Salter testified, he was merely following Knowles’s wishes by not recording the deeds until after her death; there is nothing to the contrary in the record to indicate that Knowles’s request amounted to a condition of the conveyance.

The presumption that Salter accepted the deeds is corroborated by the fact that he took physical possession of the deeds upon delivery and by the fact that he executed a codicil to his will after the deeds were delivered to him, in which he declared that in the event he predeceased Knowles he devised to her “all real property which ha[d] heretofore been conveyed to [him] by the said Mary Ellen Knowles.”

The Hamiter appellees contend that Knowles’s continued possession and control of the properties for 33 years after the alleged delivery of the deeds was hostile to Salter’s claim. The facts that Knowles remained in possession of the properties, that she possibly paid taxes on the property occasionally, and that she sold several parcels that were included within the properties described in the deeds after she had delivered the deeds to Salter does not affect the validity of the original delivery of the deeds and the contemporaneous transfer of title to Salter. Knowles’s subsequent conduct is relevant only as to the issue whether the rule of repose barred Salter’s claim to the properties.

The trial court erred in its finding that the deeds were neither validly delivered by Knowles nor accepted by Salter. The factual determinations on which the trial court based that finding were inconsistent with the undisputed testimony concerning the delivery and acceptance of the deeds and are therefore not binding on this Court. Scott v. McGriff, supra; Franklin v. State ex rel. Trammell, supra.

C. The Rule of Repose and the Doctrine of Laches

1. Availability of the Defenses

Salter contends that the trial court erred in its finding that the doctrine of laches and the rule of repose render the deeds void. While these are ordinarily defensive grounds for a determination of invalidity, the Hamiter appellees, the plaintiffs below, seek a declaratory judgment and are thus entitled to assert such defenses as part of their complaint seeking a declaration of rights. See, e.g., Cochrane Roofing & Metal Co. v. Callahan, 472 So.2d 1005, 1007 (Ala.1985) (“The subcontractor then filed this action for declaratory judgment, contending that it had no obligation to indemnify the contractor because the contractor had not given it notice of the suit in a timely manner, and contending that laches prevented the contractor from prevailing under the indemnity agreement.”).

2. Rule of Repose

This Court summarized the rule of repose, as distinct from adverse possession, in Ex parte Grubbs, 542 So.2d 927, 930 (Ala.1989), as follows:

“In Alabama, there is, in addition to the doctrine of laches, a rule of repose or prescription by which an action not instituted for more than 20 years is absolutely barred. Wilkerson v. Wilkerson, 230 Ala. 567, 161 So. 820 (1935); Roach v. Cox, 160 Ala. 425, 49 So. 578 (1909); McArthur v. Carrie’s Adm’r, 32 Ala. 75 (1858). This rule is similar to, but broader than, a statute of limitations, Wilkerson, supra; Patterson v. Weaver, 216 Ala. 686, 114 So. 301 (1927), and is not affected by it, Wilkerson, supra, nor dependent upon it, Boshell v. Keith, 418 So.2d 89 (Ala.1982). Its application is not affected by the circumstances of the situation, by whether prejudice has resulted, by whether evidence has become obscured, or by the status of the parties. Wilkerson, supra. The only element of the rule is time. Boshell, supra. Only a recognition by the defendant of the plaintiffs subsisting and continuing right will stay the running of the prescriptive period. Eatman v. Goodson, 262 Ala. 242, 78 So.2d 625 (1954).”

Because we have found that the undisputed evidence reflects delivery by Knowles and acceptance by Salter and because the evidence also reflects Knowles’s continued possession of the properties after her delivery of the deeds to Salter and his acceptance of the deeds, we must evaluate the Hamiter appellees’ rule-of-repose defense in light of the applicable law when a grantor remains in possession after delivery and acceptance.

The law governing retained possession by a grantor is well stated in Yancey v. Savannah & West. R.R., 101 Ala. 234, 13 So. 311 (1893), as follows:

‘“By the execution and delivery of a deed of land the entire legal interest in the premises becomes vested in the grantee, and if the grantor continues in possession afterwards, his possession is not that of owner, but of a tenant of the grantee. He will be regarded as holding the premises in subserviency to his grantee, and nothing short of an explicit disclaimer of such a relation, and a notorious assertion of right in himself, will be sufficient to change the character of his possession, and render it adverse to the grantee.’ — Burhans v. Van Zandt, 7 Barb. (N.Y.) 91 [(1849)]; Butler v. Phelps, 17 Wend. (N.Y.) 642 [ (1836) ].”

101 Ala. at 238, 13 So. at 312 (emphasis added). Thus, even though Knowles continued to live on a portion of the land she had deeded to Salter, if she did so at his will, she could not defeat his title by adverse possession.

In this proceeding, the Hamiter appel-lees have disavowed any basis for recovery under the doctrine of adverse possession, relying instead on the rule of repose. Our cases have not consistently differentiated between the rule of repose and adverse possession in cases involving retained possession by the grantor, as this Court noted in Walker v. Coley, 264 Ala. 492, 498, 88 So.2d 868, 873 (1956).

The grantor remained in possession for more than 20 years in Chandler v. Pope, 205 Ala. 49, 87 So. 539 (1920). The grant- or’s widow testified that “she ‘reckon’ her husband claimed the land; that he called it his and took care of it, but she never heard him tell any of the others that he was claiming it, nor did she ever tell them anything to that effect.” 205 Ala. at 50, 87 So. at 540 (emphasis added). The Court held that the grantor’s widow failed to establish possession hostile to the grantee where there was no evidence of a hostile statement directed to the grantee. Had the Court looked to the grantor’s actions alone, rather than insisting on words constituting “a clear, unequivocal, and notorious disclaimer of the title of his landlord,” the grantor would have prevailed. 205 Ala. at 50, 87 So. at 540. In Walker v. Coley, the grantor and successors remaining in exclusive possession for more than 20 years prevailed, even though the evidence did not reflect hostile assertion of ownership directed to the grantee or the grantee’s successors. The actions of the grantor and those holding under him were merely consistent with ownership. The Court explained its result, ostensibly different from the result reached in. Chandler, as follows:

“We observe in that connection that section 828 (Adverse Possession)' Title 7, Code, does not apply to the prescriptive period of 20 years. Alford v. Rodgers, 242 Ala. 370, 6 So.2d 409 [(1942)]; Jones v. Rutledge, [202 Ala. 213, 80 So. 35 (1918) ]. We think the Court overlooked those principles in applying the presumption of subserviency to the prescriptive period in Chandler v. Pope, 205 Ala. 49, 87 So. 539 [ (1920) ].”

264 Ala. at 498, 88 So.2d at 873. Continuing, the Court in Walker stated:

“The 20-year period would have little purpose if the same requirements of adverse possession applied to it as to the 10-year preiod [sic]. We think the Chandler case, supra, failed to observe the full force of our cases in that respect and should not be considered as expressive of the correct principle.”

Id. The Court in Walker reasoned that because the grantees never asserted a claim to the land and the grantor remained in open, notorious, and exclusive possession of the land while not recognizing the grantees’ title, the grantor’s possession of the land was not presumed to be subordinate to the grantees’ possession.

The Hamiter appellees rely on Walker and point to Knowles’s remaining on the property as well as to her executing various timber deeds, mineral leases, and a mortgage as evidence of her open and notorious exclusive possession of the land for more than 20 years. The trial court rejected Salter’s testimony as to his understanding with Knowles that she held title subservient to his as “not persuasive,” in large part because Knowles was not available to testify, and held that his claim was barred by the doctrine of laches. In so doing, the trial court described Salter’s testimony as “[t]he only testimony before this Court of the recognition of the claim of Salter.” The Hamiter appellees and the trial court place importance on Knowles’s conveyances of portions of the land to third parties after she had delivered the deeds to Salter; in doing so, however, they ignore unimpeached testimony of disinterested third parties that corroborates Salter’s testimony as to the subserviency of Knowles’s title.

The record reflects without dispute, through the testimony of disinterested third parties as well as Salter, that Salter took actual possession of the property upon delivery, that he used the property for many business ventures, and that he fully and openly enjoyed the incidents of ownership by farming the land; raising cattle, quail, and horses on the properties; managing the timber; leasing oil, gas, and mineral rights; periodically paying taxes on the properties; and enjoying unfettered access to the properties.

As for Knowles’s conveyances after she delivered the deeds to Salter, several of the participants in those transactions testified that Salter knew about and consented to the transactions and even stated that Knowles would not make a decision concerning such a transaction without Salter’s consent. Specifically, an individual who leased the mineral rights to a portion of the properties testified that “Knowles had wanted to review the lease with Salter before she signed it.” An individual who purchased timber from the properties stated that both Salter and Knowles were present when he negotiated the purchase of the timber and that Knowles “wouldn’t make a decision without she had [sic] Frank in person.” Knowles’s attorney testified that he mostly discussed the timber sales with Salter and that he discussed some of the timber deeds with him. Every time Knowles discussed with her attorney the conveyances to third parties, Knowles recognized the fact that she previously conveyed those lands to Salter and that she did not own the land. The trial court’s findings in disregard of this undisputed evidence are clearly erroneous. See Roberts v. Mitchell, 437 So.2d 512 (Ala. 1983).

The present case is distinguishable from Walker in two significant respects. This Court noted in Walker that the grantor and his successors had “the open, notorious, exclusive possession for a period of 20 years or more after he made a deed to [the grantee] in 1919, and without recognition of the title of his grantee or successors.” 264 Ala. at 498, 88 So.2d at 873 (emphasis added). Here, there is undisputed evidence that Knowles recognized Salter’s title during the running of the prescriptive period. The trial court recognized the applicability of this principle in its order, citing Boshell v. Keith, 418 So.2d 89, 92 (Ala.l982)(“The only circumstance that will stay the running of the 20-year period of repose is a recognition of the existence of the claimant’s right by the party defending against the claim”). Further, in Walker, this Court referred to the inactivity of .the grantees, stating that “neither [the grantee nor his successors] have asserted claim or right to either tract of land, nor paid substantial value for it, nor paid taxes on it, nor sought possession of it or benefits from it, nor have done any act showing an assertion of claim so far as known to ... the grantor, or the public, for a period of 20 years or more.” 264 Ala. at 498, 88 So.2d at 873. Here, Salter’s conduct as presented by undisputed evidence cannot be classified as wholly passive as was the case with the grantees in Walker.

The trial court erred in its finding that the rule of repose vested title in the Hami-ter appellees. The factual determinations on which the trial court based its finding were inconsistent with the undisputed testimony concerning Knowles’s and Salter’s actions and are therefore not binding on this Court. Scott v. McGriff, supra; Franklin v. State ex rel. Trammell, supra.

3. Doctrine of Laches

The trial court based its finding on the belief that Salter’s 33-year delay in filing the deeds and Knowles’s death unfairly prejudiced the Hamiter appellees in ascertaining Knowles’s true intent. The trial court stated, “Certainly prejudice can occur by the death of the one person able to state the true intention of the grantor.” (Emphasis added.) The trial court failed to acknowledge the undisputed evidence from disinterested third parties describing Knowles’s actions and statements. The evidence of Knowles’s intent was not confined to unavailable testimony from Knowles; she was not “the one person” who could testify as to the true intention of the grantor.

The undisputed evidence from Knowles’s attorney established that she did not want the deeds recorded during her lifetime. In Woods v. Sanders, 247 Ala. 492, 25 So.2d 141 (1946), this Court stated:

“We stated in Cook v. Castleberry, 233 Ala. 650, 173 So. 1 [ (1937) ], that if the claim was not stale at the death of the person primarily accountable and no facts have since occurred which added to the situation then existing make it so, relief would not be denied on the principle of laches.”

247 Ala. at 496, 25 So.2d at 144. Salter, by adhering to Knowles’s wishes and not recording the deeds until after her death, cannot be faulted for allowing his claim to become stale. For the doctrine of laches to bar a claim it must be said that “from delay, any conclusion the court may arrive at must at best be conjectural, and the original transactions have become so obscured by lapse of time, loss of evidence, and death of parties as to render it difficult if not impossible to do justice.” Us-sery v. Darrow, 238 Ala. 67, 71, 188 So. 885, 888 (1939). This is plainly not such a case. The trial court exceeded its discretion in determining that the doctrine of laches defeated Salter’s title.

IV. Conclusion

Knowles properly conveyed the properties located in Conecuh County and Cov-ington County to Salter by three separate deeds. We hold that the trial court’s findings of fact were clearly erroneous and that the trial court improperly applied the law to undisputed facts. We, therefore, reverse the trial court’s judgment declaring void the three warranty deeds conveying such properties, and we render a declaratory judgment recognizing Salter’s title.

REVERSED AND JUDGMENT RENDERED.

HOUSTON, SEE, JOHNSTONE, and WOODALL, JJ., concur.

      . Section 35-4-90, Ala.Code 1975, states:
      "(a) All conveyances of real property, deeds, mortgages, deeds of trust or instruments in the nature of mortgages to secure any debts are inoperative and void as to purchasers for a valuable consideration, mortgagees and judgment creditors without notice, unless the same have been recorded before the accrual of the right of such purchasers, mortgagees or judgment creditors.”


author: PITTMAN, Judge. MURDOCK, Judge,

text:
    D.L.J. v. B.R.J.
    2020122.
    Court of Civil Appeals of Alabama.
    Aug. 1, 2003.
    Rehearing Denied Sept. 19, 2003.

      David M. Andres, Tuscaloosa, for appellant.
    Matt Grover and Paul W. Patterson II of The Prince Patterson Law Firm, P.C., Tuscaloosa, for appellee.
   PITTMAN, Judge.

D.L.J. (“the husband”) appeals from the trial court’s modification of a judgment of legal separation entered on May 1, 1999. On November 25, 1998, B.R.J. (“the wife”) filed a complaint requesting a divorce from the husband. Five months later, the wife amended her complaint to seek only a legal separation instead of a divorce and filed deposition testimony to the effect that she and the husband had reached a fair and reasonable agreement settling all issues raised by her complaint for a legal separation. On May 1, 1999, the trial court “ratified and confirmed” the parties’ legal separation agreement. The agreement provided, in pertinent part:

“The parties shall maintain joint ownership of all the real property presently owned by them with all the attendant rights of co-tenancy and survivorship remaining unaltered by this Agreement.”

The agreement also reserved the issue of alimony and provided that the husband would maintain health insurance on the wife and would pay all of her medical expenses.

On February 25, 2002, the wife filed a petition to modify the judgment, alleging a material change in circumstances; the wife’s petition requested an award of alimony and an equal division of the real property owned by the parties. The wife’s petition also included a request that the trial court find the husband in contempt for failure to fulfill all of his obligations under the separation judgment. The husband filed a motion to dismiss the wife’s petition. The trial court held a hearing on June 6, 2002, and it denied the husband’s motion to dismiss.

The husband and four of the couple’s adult children testified during the ore ten-us proceeding. The husband testified that he was 65 years old, that he had retired as a construction worker and pipe fitter, that he has had heart-bypass surgery, and that he is deaf in one ear. At the time of trial, the husband received monthly Social Security benefits in the amount of $1,075; he was also collecting pensions from his local and national unions totaling $489 per month. Also, the husband testified that he was receiving a monthly check of $158.56 from an individual-retirement account that was awarded to him in the original separation agreement. The husband, at the time of trial, had custody of and responsibility for a seven-year-old grandson of the parties.

The husband explained his belief that modification of the separation judgment was not necessary because the couple had previously purchased 17 acres on Old Gorgas Road in Tuscaloosa County to sell for a profit when either the husband or the wife should need the money. He stated that he had inherited the marital residence and 30 acres of land on which the residence was located. The husband also testified that he had purchased 60 adjoining acres from his parents’ estate when his siblings decided not to keep the property. Additionally, the husband stated that the parties also owned a waterfront lot on Lake Tuscaloosa that could be sold at any time to provide money to defray the parties’ living expenses. The husband testified that the separation agreement required that “any and all income/profits received from said real estate shall be divided equally between the parties.” The husband testified that he believed that provision meant that he could deduct maintenance costs and property taxes paid on the property from rentals received before sending the wife half of the monthly rental income.

L.D., one of the couple’s daughters who had been appointed as the wife’s conservator, testified that the wife had been fully coherent and reasonably healthy until June 2001, but that she had lost much of her physical and mental abilities since that time. L.D. testified that, by the time of trial, she was bathing the wife, feeding her, taking her to doctor appointments, purchasing and administering medications, and generally handling all of the wife’s activities on a daily basis. L.D. testified that the wife’s monthly expenses, including medication, totaled $847. In addition to that amount, L.D. testified that, because she had to hire a sitter whenever she left town or left the house for any reason, the wife was incurring monthly sitter fees of no less than $600. L.D. stated that she had had to quit her job in order to take care of the wife, who, L.D. stated, could die at any time.

L.D. testified that the wife received $555 in monthly Social Security payments. L.D. stated that, by the time of trial, the wife’s checking account had only $22,000 left to defray all of her expenses for the rest of her life and that, therefore, L.D. had requested on behalf of the wife that the trial court award the wife alimony. She stated that the husband had not paid the wife her half of the rental income received from property owned jointly by the husband and the wife for several months and that he had an accumulated arrearage of $1,500. Lastly, L.D. asked the trial court to divide the marital property so that as conservator she could sell the property awarded to the wife to help pay for the living expenses of the wife until her death. During cross-examination, L.D. admitted that the husband was required to pay for all medical expenses that the wife incurred, including medications, and that those expenses, totaling $262 per month, should be deducted from L.D.’s calculation of the wife’s monthly expenses.

R.M.F., another daughter of the couple, testified that on one occasion the husband had struck the wife in the face, causing her to fall and giving her a black eye. R.M.F. stated that she visited the wife once a week and that the wife’s condition was deteriorating quickly. R.M.F. confirmed L.D.’s testimony that the wife’s health was so poor that she might die soon.

W.V., another daughter, testified that the husband and wife had been argumentative throughout their marriage. W.V. stated that she saw the wife hitting the husband on one occasion; on another occasion, when the wife received the black eye, W.V. testified that the wife stated that it was a result of the pushing and shoving that the couple “always” did during an argument. W.V. stated that, when she was a child, she had surprised the wife while she was kissing another man. W.V. also testified that she knew the husband had been unfaithful to the wife.

D.W., another daughter of the couple, testified that during the two years before the trial, while the wife had been living with L.D., the family unit had disintegrated. D.W. stated that L.D. had threatened to arrest her if D.W. tried to visit the wife. During redirect, the husband stated that he knew of several affairs his wife had conducted during their marriage.

The trial court issued its judgment on June 10, 2002. The trial court found in its judgment that the husband and the wife had been married for 41 years before the separation judgment was entered. During that time the parties had acquired three parcels of property: the marital residence and approximately 90 acres adjoining the residence, a waterfront lot on Lake Tuscaloosa, and 17 acres on Old Gorgas Road in Tuscaloosa County. As a result of the wife’s rapidly deteriorating health, the trial court concluded that a material change of circumstances had been shown so as to necessitate a modification of the separation judgment. The trial court awarded the wife the lakefront lot, awarded the husband the marital residence and adjoining acreage, and awarded each party an undivided one-half interest in the Old Gorgas Road property. The trial court awarded the wife $200 in monthly alimony, and it entered a judgment against the husband for $1,400 (the amount the trial court determined to be the arrearage in rental income owed to the wife). In the judgment, the trial court specifically found the husband not to be in contempt of court.

Both the husband and the wife filed postjudgment motions contending that the property division was inequitable. Additionally, the husband argued that no material change in circumstances had been demonstrated and that the wife was not entitled to alimony due to her possession of other assets. On August 22, 2002, the trial court conducted another hearing and accepted appraisals of the value of the three parcels from both parties. After reviewing the appraisals, the trial court modified the June 10, 2002, judgment on September 18, 2002, by making additional findings of fact regarding the properties in dispute.

The trial court found that the lakefront property had a fair market value of $45,000. The trial court determined that the marital residence was situated on 5 acres and was adjacent to 85 undeveloped acres; the trial court found the fair market value of the marital residence (and the five acres) to be $145,000 and the fair market value of the adjacent 85 acres to be $150,000. The parties stipulated that since the separation judgment, the husband had spent $14,000 in repairs to the marital residence, and the market-value determination by the trial court reflected those repairs.

The amended judgment awarded the husband the marital residence and the five acres, divesting the wife of any interest in that property. The trial court then awarded each party an undivided one-half interest in the remaining 85 acres as tenants 'in common (i.e., with no right of survivor-ship). All other provisions of the June 10, 2002, judgment were reaffirmed in the September 18, 2002, amended judgment.

The husband filed a postjudgment motion requesting “clarification” of the amended judgment. The trial court thereafter clarified the property division by entering an order listing the specific property interests awarded to each party in the judgment. The husband received the marital residence and 5 acres, valued at $145,000; an undivided one-half interest in the 85 adjoining acres, valued at $75,000; and an undivided one-half interest in the 17 acres on Old Gorgas Road, valued at $71,000, property worth a total value of $291,000. The wife received the lakefront property, valued at $45,000; an undivided one-half interest in the 85 acres adjacent to the marital residence, valued at $75,000; and an undivided one-half interest in the Old Gorgas Road property, valued at $71,000, property worth a total value of $191,000. Based on those property values, the trial,court reaffirmed its judgment dividing the marital property and awarding $200 in monthly alimony to the wife.

The husband appeals and argues that the trial court erred (1) in making a final division of property in a legal separation action and (2) in modifying the separation judgment without the parties’ consent or a showing of a material change in circumstances. ' The husband does not appeal the award of periodic alimony. Initially, we note that this court’s review of the trial court’s amended judgment is governed by the ore terms ■ standard, under which we apply a presumption of correctness to the trial court’s judgment. See Roberts v. Roberts, 802 So.2d 230 (Ala.Civ.App.2001); see also Mullins v. Mullins, 416 So.2d 1063 (Ala.Civ.App.1982).

Legal separations in Alabama are governed by § 30-2-40, Ala.Code 1975. That section of the Alabama Code was adopted by the Alabama Legislature with an effective date of January 1, 1999. Pursuant to that statute, a legal separation is a “court determination of the rights and responsibilities of a husband and wife arising out of the marital relationship,” and a “legal separation does not terminate the marital status of the parties.” See § 30-2-40(b), Ala. Code 1975.

The husband argues that this court’s holding in Mullins prohibits the trial court from making a final division of the marital property in a legal separation action. It is clear that, under earlier Alabama caselaw addressing judgments of divorce from bed and board (a mensa et thorn, the common law predecessor to legal separation), final awards of alimony and separate property were not permitted. See Hager v. Hager, 293 Ala. 47, 299 So.2d 743 (1974); McLendon v. McLendon, 277 Ala. 323, 169 So.2d 767 (1964). However, the Alabama Legislature has modified the common law by adopting a statute governing legal separations that contains provisions found in model laws or other states’ statutes. We have located no Alabama cases decided since the effective date of that statute that interpret the provisions of § 30-2-40.

The applicable rules of statutory construction are quite clear:

“ ‘The fundamental rule of statutory construction is to ascertain and give effect to the intent of the legislature in enacting the statute. Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.’ ”

Ex parte Master Boat Builders, Inc., 779 So.2d 192, 196 (Ala.2000) (quoting IMED Corp. v. Systems Eng’g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992)); see also Smith v. Smith, 836 So.2d 893 (Ala.Civ.App.2002). In this case, the crucial issue is the manner in which the trial court applied the following statutory provision: “The terms of a legal separation can be modified or dissolved only by written consent of both parties and ratification by the court or by court order upon proof of a material change of circumstances.” Ala.Code 1975, § 30-2^0(c) (emphasis added).

The record is clear that the only agreement of the parties in this case relates to the original separation agreement that was incorporated into the 1999 separation judgment. Subsequent to the entry of that judgment, the wife became incompetent to handle her own affairs. The statute, however, provides for a modification “upon proof of a material change of circumstances.” The trial court made a specific finding of fact that the deterioration of the wife’s mental and physical health following the separation judgment constituted a material change in circumstances, thereby necessitating a modification of the judgment.

Both our Supreme Court and this court have consistently held that a trial court’s judgment modifying an original award of alimony or maintenance will be upheld on appeal absent an abuse of discretion. See Parsons v. Parsons, 284 Ala. 105, 222 So.2d 360 (1969); see also Crittenden v. Parker, 350 So.2d 1058 (Ala.Civ.App.1977). Even in Mullins, supra, involving an appeal from a judgment of a divorce from bed and board, this court upheld an alimony award of $50 per week as not constituting an abuse of discretion. Furthermore, this court upheld a judgment awarding the marital home to the wife after granting her a divorce from bed and board. See Phillips v. Phillips, 666 So.2d 526 (Ala.Civ. App.1995). In upholding the trial court’s decision in Phillips, this court quoted the well-established rule that “the division of property pursuant to a divorce is a matter that rests soundly within the discretion of the trial court, and ... its judgment will not be disturbed on appeal absent an abuse of that discretion.” Phillips, 666 So.2d at 529.

Additionally, previous appellate decisions relating to maintenance payments in the context of judgments of divorce from bed and board have held that the issue of separate maintenance remains open for revision by the trial court if the circumstances of the parties should substantially change. See Carreker v. Carreker, 273 Ala. 199, 137 So.2d 772 (1962); Holley v. Holley, 257 Ala. 250, 58 So.2d 783 (1952). We conclude that, in light of Alabama precedents dealing with divorces from bed and board and our Legislature’s express intent that trial courts retain jurisdiction to modify judgments of legal separation, the trial court did not err in entering a judgment modifying the 1999 separation judgment.

As to the husband’s argument that § 30-2-40 codified all preexisting common law relating to the division of property in judgments for divorce from bed and board, we note that before § 30-2-40 was enacted, § 30-2-30, Ala.Code 1975, which has been repealed by the Legislature, granted a trial court the discretion to enter a judgment of divorce from bed and board on any grounds that would justify an absolute divorce if the party applying therefor desired only a divorce from bed and board. See McLendon, supra; see also Hilfer v. Hilfer, 53 Ala.App. 549, 302 So.2d 237 (1974), and Davis v. Davis, 281 Ala. 59,198 So.2d 787 (1966). In contrast, the current statute authorizes the trial court to grant a request for a legal separation only if all of the conditions of subsection (a) of § 30-2-40 are met. Those conditions are (1) proper jurisdiction, (2) both parties’ desire to live apart or evidence sufficient to grant an absolute divorce, and (3) the trial court’s provision for child custody and child support (if applicable). See § 30-2-40(a), Ala. Code 1975. The statute specifically provides that each party’s earnings and/or accumulations of retirement benefits following a judgment of legal separation remain the separate property of the party acquiring those earnings or benefits, that each party may convey his or her real estate without the consent of the other, and that each party may waive all rights to inherit from the other. See § 30-2^á0(f). The remainder of the statute addresses the effect of the provisions of the separation judgment in future divorce actions filed by either party to the separation. We do not find any “saving” clause or other language in the statute that directly adopts the. previous common law pertaining to judgments for divorce from bed and board, or, more specifically, the holdings in Mullins and Hager, that the husband contends bar permanent alimony or property awards.

More importantly, § 30-2-40(d) specifically gives the trial court discretion to consider “provisions of the legal separation relating to alimony or a property settlement ” (emphasis added) when considering a final dissolution of the marriage, although it relieves the trial court of a duty to be bound by such provisions when crafting a final divorce judgment. Obviously, if terms of a separation judgment addressing alimony and division of marital property may be incorporated into a final divorce judgment in certain instances, then it logically follows that (1) a trial court may include such terms in a legal separation judgment, and (2) a trial court may modify those alimony and property-division provisions pursuant to a proper action to modify the separation judgment. Section 30-2-40(c) specifically gives trial courts the authority to modify legal separation judgments. ■ The trial court in this case acted within that delegated power in entering a judgment modifying the 1999 separation judgment to include a periodic-alimony provision. Moreover, the trial court could properly modify that portion of the separation judgment incorporating the parties’ agreement to hold all marital property in joint tenancy with the right of survivor-ship. That agreement, incorporated into the 1999 separation judgment, was as susceptible to modification upon a showing of changed circumstances pursuant to the provisions of § 30-2-40(c) as the other provisions of the original judgment.

Under Master Boat Builders, supra, we must give the language of § 30-2-40 its plain meaning; therefore, we conclude that if the Alabama Legislature had intended to limit the modification of separation judgments as to awards of alimony or the division of marital property, it would have done so explicitly. Instead, the statute clearly gives trial courts the power to modify separation judgments in two specific instances, the applicable one here being upon a showing of a material change of circumstances. We conclude, therefore, that the trial court did not err when it modified the 1999 separation judgment and divided the marital property between the husband and the wife as part of its modification of that judgment. The trial court’s judgment is thus due to be affirmed.

AFFIRMED.

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

MURDOCK, J., dissents.

MURDOCK, Judge,

dissenting.

I respectfully dissent.

I first note that our caselaw has always provided that a property division or an alimony in gross award, being final, non-modifiable settlements, are not available to the court in the granting of- a legal separation to the parties. E.g., Mullins v. Mullins, 416 So.2d 1063 (Ala.Civ.App.1982). In McLendon v. McLendon, 277 Ala. 323, 169 So.2d 767 (1964), our Supreme Court stated:

“There is a great difference in the effects of a decree a vinculo as compared with a decree a mensa. A divorce from the bonds of matrimony bars a wife of her dower and of any distributive share in the personal estate of her husband. A decree of divorce from bed and board does not remove the vinculum of marriage. Such a divorce is only a legal separation, the marriage continuing in regard to everything not necessarily withdrawn from its operation by the decree. Drake v. Drake, 262 Ala. 609, 80 So.2d 268 [(1955)].
“In Adair v. Adair, 258 Ala. 293, [300-01,] 62 So.2d 437 at 443 [(1952)], this court stated:
“ ‘In fact, the legal effect of the wife’s selection and pursuance of the remedy for limited divorce is to save for herself the right of her dower interest in the husband’s estate if he predeceases her and the right to share and participate in the division of his personal estate and to have a homestead or an allowance in lieu thereof of the value of $ 6,000.’ ”

277 Ala. at 325, 169 So.2d at 769. I also note that “[statutes in derogation of the common law are ... presumed not to alter the common law in any manner not expressly declared.” Sutherland v. Roth, 407 So.2d 139, 140 (Ala.Civ.App.1981). I see nothing in § 30-2-40, Ala.Code 1975, enacted in 1999, that alters our common-law precedent.

While § 30~2-40(d) makes reference to a “property settlement,” there is no predicate for this reference. Nowhere in the statute does the Legislature affirmatively state that a trial court may impose a property division upon the parties to a legal separation without the agreement of both of the parties. For all that can be gleaned from the statement in § 30-2-40(d) that the trial court “shall order that the terms of the legal separation relating to alimony or a property settlement be incorporated into a final divorce decree only if agreed to by the parties,” the Legislature is merely alluding to property settlements that are, indeed, “agreed to by the parties.” This would be consistent with caselaw that was well established before the enactment of this statute, as well as with the other provisions of the statute itself, as discussed below.

Secondly, I do not see how the fact that § 30-2-40(c) provides that “[t]he terms of a legal separation can be modified or dissolved” under certain conditions in any way addresses the question of what could be included in those terms to begin with. Indeed, this provision says nothing more than that whatever the law permits to be addressed in a judgment of legal separation may subsequently be modified if there is a material change of circumstances. It does not address the question of what it is that our law permits to be addressed in such a judgment. The only authority that addresses that question is the same case-law authority that addressed it before the enactment of the statute.

Thirdly, an argument is made that § 30-2-40(f) provides that the trial court may impose a property division upon the parties prior to a divorce. To the contrary, I find that this section, by negative inference, reveals that a final division of real property was not contemplated by our Legislature absent an agreement by the parties. Section 30 — 2—40(f) provides, in pertinent part:

“(f) Upon written consent by both parties, after entry of a decree of legal separation, all of the following provisions shall apply:
“(2) A spouse may convey his or her real estate without the signature or consent of the other spouse.”

(Emphasis added.) In providing that a spouse may convey his or her separate real estate without the signature or consent of the other spouse if there is “written consent by both parties,” it is clear that the statute removes any requirement for the signature or consent of a spouse in connection with the conveyance of real property only in cases where the parties agree to this in writing.

The main opinion cites Phillips v. Phillips, 666 So.2d 526 (Ala.Civ.App.1995), as a case in which this court upheld a judgment awarding the marital home to the wife after granting her a divorce from bed and board. This award of the marital home was done in a subsequent judgment of divorce, however, not in the judgment of divorce from bed and board or a “modification” of that judgment. Nor does the fact that cases have held that the issue of separate maintenance remains open for revision by the trial court if the circumstances of the parties should substantially change during the course of a legal separation, see Carreker v. Carreker, 273 Ala. 199, 137 So.2d 772 (1962), and Holley v. Holley, 257 Ala. 250, 58 So.2d 783 (1952), have any bearing, in my view, on the issue here presented. Similarly, I do not find the difference in the articulation for grounds for a divorce from bed and board in § 30-2-40 and the now repealed § 30-2-30 helpful in this case.

Finally, and perhaps most importantly, our Supreme Court has “often stated that ‘the meaning of statutory language depends on context,’ and that, as a result, statutes must be read as [a] whole in order to ascertain the meaning and intent of each component.” Ex parte Master Boat Builders, Inc., 779 So.2d 192, 196 (Ala.2000) (quoting Ex parte Jackson, 614 So.2d 405, 406 (Ala.1993)). The result achieved by the main opinion is inconsistent with one of the purposes, if not the main purpose, for the Legislature’s providing for a legal separation. As the Comment following § 30-2-40 explains:

“A legal separation will be utilized by many couples during a time in which they desire to live apart but are hoping for eventual reconciliation. To encourage reconciliation, by limiting to the extent possible, the adversarial nature customarily associated with the dissolution of the marriage subsection (d) was in-eluded. Accordingly, absent agreement by the parties, neither the court nor the couple will be bound by the economic arrangements of the legal separation if ... one of the parties subsequently files for a final dissolution of the marriage.”

By forcing the parties to litigate during their legal separation the permanent division of their real property, the trial court in this case has forced upon the parties an adversarial posture which the Legislature intended to avoid.

      . At the time of the trial court’s separation judgment, the wife had been diagnosed with brain cancer and was about to undergo surgery and other cancer treatments. According to the record, the wife needed the benefits of the husband's health insurance; that is apparently why neither party requested an absolute divorce.

      . The record consistently identifies the wife as the plaintiff, whereas trial testimony established that L.D., as conservator for the wife, in fact had handled all legal matters for the wife during the 12 months preceding the trial.

      . We note that the while the modified separation judgment divides three parcels of marital property between the' parties, because this is not an absolute divorce, the husband still retains his inchoate marital rights and may receive some distribution from the wife's" estate. See, e.g., § 43-8-41 and § 43-8-190, Ala.Code 1975.

      . To the contrary of the result reached by the main opinion, the written agreement of the parties in the present case expressly provided that, during their legal separation, the parties would maintain “joint ownership of all the real property presently owned by them with all the attendant rights of co-tenancy and sur-vivorship remaining unaltered by this Agreement. All transactions (sale; mortgage; pledge; lease; or any other transfers of interest) regarding said real property shall require joint approval from both parties.” The parties' agreement also contains the following language:
      “11. ACCEPTANCE OF PARTIES/WAIVERS: Both parties accept these provisions in full and final settlement and satisfaction of all claims for property which one may have against the other. Furthermore, each party fully discharges the other from all such property claims unless otherwise provided in this Agreement.”

      . Indeed, § 30-2-40(c) is essentially only a restatement of the common-law rule regarding modification of legal separation judgments that was in place prior to the enactment of § 30-2-40. See Carreker v. Carreker, 273 Ala. 199, 137 So.2d 772 (1962); Holley v. Holley, 257 Ala. 250, 58 So.2d 783 (1952) (modification is appropriate if the circumstances of the parties should substantially change during the course or a legal separation).

      . The portion of the Comment pertaining to subsection (d) of the statute expressly states that "absent agreement by the parties, neither the court nor the couple will be bound by the economic arrangements of the legal separation if ... one of the parties subsequently files for a final dissolution of the marriage.” The Comment also explains that the statute was intended to allow the court to make an equitable division of the property of the parties upon an eventual divorce, while simultaneously providing the parties the option of agreeing to "live separate economic lives” during the course of the legal separation.


author: WOODALL, Justice.

text:
    Ex parte D.L.J. (In re D.L.J. v. B.R.J.)
    1022192.
    Supreme Court of Alabama.
    March 12, 2004.
    David M. Andres, Tuscaloosa, for petitioner.
    Paul W. Patterson II of Patterson Law Firm, Tuscaloosa, for respondent.
   WOODALL, Justice.

The petition for the writ of certiorari is quashed.

In quashing the petition for the writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Civil Appeals’ opinion. Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973). See also Smith v. Equifax Servs., Inc., 537 So.2d 463, 465 (Ala.1988).

WRIT QUASHED.

HOUSTON, LYONS, BROWN, and JOHNSTONE, JJ., concur.