author: PITTMAN, Judge.

text:
    Virginia R. TRAVIS v. Francis Edwin TRAVIS.
    2010712.
    Court of Civil Appeals of Alabama.
    Oct. 25, 2002.

      Benjamin E. Pool, Montgomery, for appellant.
   PITTMAN, Judge.

Virginia R. Travis (“the wife”) appeals a final judgment of divorce. The wife and Francis Edwin Travis (“the husband”) married on June 20, 1984, after having lived together since March 1979. Six children were born to the couple; five were minors at the beginning of this proceeding. The wife asked the husband to move out of the marital home on February 21, 2002, based on her suspicions that he had committed adultery. Initially all of the children remained with the wife, but two weeks after the husband moved out the 15-year-old daughter left to be with her father, who had moved in with his parents. At the time of the hearing, the 18-year-old son had moved out of the marital home, leaving three minor children residing with the wife.

The trial court held hearings on September 6, 2001, and on January 10, 2002, during which it received ore tenus evidence. During the hearings, the wife testified that she had raised the children as Jehovah’s Witnesses. She stated that before her separation from the husband she had worked outside the home only occasionally. The wife testified that at the time of the hearings, she was working as a bank teller, earning $588 every two weeks, but that she has no savings or any retirement benefits yet. She stated that her husband worked for Anchor Bay Marina, that his parents had owned the marina at one time, and that her husband had worked at the marina throughout the marriage. His income affidavit stated that his monthly gross income was $2,480.76. He testified that his annual salary would change under a new employment contract pursuant to which his salary is calculated by adding sales commissions to a base salary. Because she has no retirement plan, the wife asked that she be awarded one-sixth of the stock options given her husband by his employer.

The husband and the wife owned a home in Eclectic, Alabama, which they purchased in June 1985. She stated that the note secured by the original mortgage had been completely paid, but that, in order to renovate and enlarge the house, the couple had taken out another mortgage on the property, and the balance on that loan secured by that mortgage was over $17,000. The wife testified that her husband had been sentenced to prison three different times for drug-related offenses. The wife gave extensive testimony regarding her husband’s extramarital associations with other women throughout their marriage. She testified that the final event precipitating the divorce occurred when she returned from an out-of-town trip to find a drugstore receipt for spermicide on her husband’s bed-side table. The wife testified that she underwent surgery to prevent pregnancy 11 years before the hearing, and therefore no longer has any need for such a product. She identified a check written to CVS Pharmacy on the same date as the receipt, for the exact amount of the receipt, which was signed by her husband.

The wife requested that she be awarded the marital home and its furnishings, except specific items she stated were her husband’s; she also testified concerning the debts accumulated during the marriage. The wife stated that since the separation she had paid all of the house mortgage payments, the utility bills, the credit card payments, and all household-related expenses. The wife asked for custody of the three minor children currently residing with her, as well as child support pursuant to the child-support guidelines.

The wife stated that she was willing for the husband to keep the 1996 Oldsmobile automobile, the 1986 Nissan 300-ZX automobile, the 1990 Dodge truck, the houseboat, the deck boat, the sailboat, and the riding lawnmower. She requested that the teenage daughter living with her be given the 1986 Honda Accord automobile. The wife also requested that the husband help pay her attorney fees.

Testimony was presented concerning the husband’s alleged extramarital activities. Carolyn Sullivan testified that while she was married she occasionally went out drinking with the husband “when her husband was not around.” She recounted a time when she, a woman named Stephanie, and the husband drove to Lake Martin late one night after they had been drinking. She also stated that the husband had been in the hot tub at her lake house. Another witness, Ray Foster, corroborated Sullivan’s testimony, testifying that on one occasion the two women and the husband drove to his campsite at Lake Martin around midnight.

Martha Seibert,' one' of the owners of Anchor Bay Marina, also testified. She stated that both the husband and Sue Ger-hardt were employed at Anchor Bay Marina selling boats. Seibert stated that the husband’s annual salary was around $32,000, and that the husband had an option to purchase stock in the business. Seibert also stated that the husband would soon be making a salary of $15,000 plus commissions, and she expected that under the new arrangement he would earn at least what he had earned the previous year.

Seibert stated that the husband and Gerhardt had taken various business trips together, including trips to Texas, Florida, Atlanta, and Las Vegas. She said that she had seen the husband and Gerhardt together in the lounge at the marina having a drink. Seibert said that she became so suspicious that the two were having an affair that she talked to both of them. According to Seibert, her talk with Ger-hardt lasted several hours.

Sue Gerhardt also testified. She stated that she and her husband had separated in March 2001. Gerhardt testified that for several months she drove the husband’s car or truck, but that she never paid for the use of his vehicles. She also stated that she and the husband often ate lunch together. Gerhardt testified that she and the husband often attended business functions together and that, on one occasion, they had shared a room in Las Vegas. Throughout her testimony Gerhardt denied that she had been, or was, having an affair with the husband.

The husband testified that he had been living with his parents since February 2001. He confirmed that one daughter was also living there and that three of the minor children still lived with their mother. His version of the events preceding the separation was inconsistent. Initially he stated that he did not know why his wife asked him to leave, and he denied that he had ever purchased spermicide from the drug store. He later admitted that he did purchase the spermicide.

The husband stated that he had been convicted of several drug offenses and that he had been incarcerated multiple times, once for as long as two years and three months. He testified that while he was in prison, his wife applied for Aid to Families with Dependent Children and that the State had been trying to collect that money from him for 20 years. The husband estimated that he owed the State about $8,000. When questioned about a $1,500 deposit he had made into his checking account in May 2001, the husband stated he did not know the source of that money.

The husband stated that he and his wife had separated several times before February 2001. He testified that during the course of their marriage, the wife had accused him of seeing other women. He stated that the wife had worked in several short-term jobs to help pay the household bills, but that “she never worked.” He testified regarding the upcoming change in his salary. The husband asked for joint custody of the three children living with his wife and primary physical custody of the daughter currently living with him.

Next, the husband described the purchase of the marital residence and discussed the outstanding debt on the house. The husband testified regarding the family vehicles and which ones had outstanding balances on the loans used to purchase the vehicles. He stated that he wanted the master bedroom suite, a pair of “pub” tables, some antiques, and numerous items that had been bequests from his grandmother. He stated that he wanted one television, and he discussed a number of marital debts.

The husband called his mother, Sara Travis, as a witness. She testified that she was not aware of any affairs that the husband might have had, either before or during the separation. She stated that in the past she had made mortgage payments on the marital residence for the husband and the wife.

Following the hearing on January 10, 2002, the trial court issued a final judgment of divorce. The trial court awarded the husband and the wife joint custody of the four minor children. The trial court granted the husband physical custody of the teenage daughter who was living with him, granted the wife physical custody of the three minor children who were living with her, and established a visitation schedule for both parents. The fifth minor child attained the age of 19 during the pendency of this divorce. The trial court ordered the husband to pay $492.69 in monthly child support and attached a CS-42 form to the judgment. Further, the trial court ordered the husband and the wife to share equally the medical expenses for the minor children.

The trial court awarded possession of the marital residence to the wife and ordered her to make the mortgage payments. In addition, the trial court ordered the wife to pay all the debt that was in her name alone and one-half of a marital debt in the amount of $700 owed to M & L Acceptance. The judgment awarded the husband the master bedroom suite, several other pieces of furniture, all the boats, all but one of the vehicles, and his stock options. The trial court ordered the husband to pay all other debts, including all money owed the State and one-half of the debt owed to M & L Acceptance. The trial court awarded the wife the contents ofithe marital residence except the master bedroom suite and certain pieces of personal property and furniture that were awarded to the husband. The trial court considered the issue of alimony, but denied it for either party and did not reserve the issue.

The wife filed a postjudgment motion, requesting (1) a clarification of the future ownership of the marital residence and (2) a judicial finding regarding the allegations of adultery. The husband filed a response on February 19, 2002. On March 13, 2002, the trial court heard argument on the motion and modified the judgment as follows:

“[I]nsofar as deed on marital residence to remain as joint survivorship with exclusive right of possession during minority of children, and the Court determines [sic] finds insufficient evidence of adultery and therefore grants divorce on incompatability [sic].”

(R. 3.)

The wife appeals. She argues that the trial court erred when it (1) denied alimony and did not reserve the issue, (2) failed to award the marital home to the wife, (3) did not award the wife. a share of the husband’s stock options, (4) failed to award the wife an attorney fee, and (5) awarded the husband the master bedroom suite.

A divorce judgment based on evidence presented ore tenus is afforded a presumption of correctness. See Robinson v. Robinson, 795 So.2d 729 (Ala.Civ.App.2001). Such a judgment will be reversed only where it is so unsupported by the evidence as to be plainly and palpably wrong. 795 So.2d at 733. This court has previously stated that “[t]he question whether to award alimony is entrusted to the sound discretion of the trial court, and the court’s ruling on that question will not be set aside absent an abuse of discretion.” Crenshaw v. Crenshaw, 816 So.2d 1046, 1049 (Ala.Civ.App.2001), citing O’Neal v. O’Neal, 678 So.2d 161, 164 (Ala.Civ.App.1996). “On appeal the division of property and the award of alimony are interrelated, and the entire judgment must be considered in determining whether the trial court abused its discretion as to either issue.” Russell v. Russell, 844 So.2d 1215, 1218 (Ala.Civ.App.2002), citing O’Neal v. O’Neal, supra.

When dividing marital property and determining whether to award alimony, a trial court should consider several factors, including the length of the marriage, the age and health of the parties, the future employment prospects of the parties, the source, value, and type of property owned, and the standard of living to which the parties have become accustomed during the marriage. See Ex parte Elliott, 782 So.2d 308 (Ala.2000). The wife’s first three issues on appeal require this court to thoroughly review the trial court’s division of the marital property in light of the trial court’s denial of an award of alimony.

In the division of property, the husband received all the boats and all but one of the vehicles the couple owned. The wife received the contents of the marital home except specific items that were awarded to the husband. The record is clear that the husband currently makes over twice as much in salary as the wife, with the prospect of making even more under a new salary arrangement. Aleo, the husband received all of the stock options that eventually will provide him a sizable income in the future. " For the duration of the children’s minority, the judgment awarded the wife possession of the marital home, subject to her making the mortgage payments. However, ownership of the home remained joint with .the husband. The wife was not awarded a single marital asset in her name alone. The judgment divided the remaining debts between the husband and the wife and required the parties to split equally the minor children’s medical expenses.

At the time of the divorce, the wife, who had rarely worked outside the home during the marriage, was earning approximately $15,000 annually as a bank teller. She had no savings and no retirement plan. The husband, who had worked throughout the marriage, was moving from an annual salary to a commission-based income. The evidence revealed that he would earn at least as much under the new salary arrangement as he had earned previously. The husband also had $150,000 worth of stock options in the business where he worked. The evidence indicated that those stock options were offered to him in lieu of a retirement or pension plan. The husband’s options first accrued in January 1999, during the marriage, and he could exercise the options incrementally until December 2005.

In this case the combination of the wife’s low income and lack of assets together with the trial court’s failure to award alimony renders the judgment inequitable. If the trial court had awarded the wife a substantial asset (such as the marital residence or a portion of the husband’s stock options), then the failure to award alimony might not rise to reversible error. The trial court’s failure to follow the factors in Ex parte Elliott, supra, requires this court to reverse the judgment and to remand the cause. See, e.g., Foley v. Foley, [Ms. 2010311, October 4, 2002] — So.2d - (Ala.Civ.App.2002); Russell v. Russell, supra; and Nichols v. Nichols, 824 So.2d 797 (Ala.Civ.App.2001).

Furthermore, in Crenshaw v. Crenshaw, 816 So.2d 1046 (Ala.Civ.App.2001), we noted that a trial court’s failure to at least reserve the issue of alimony often constitutes reversible error. A trial court should reserve the issue of alimony if the facts indicate that future circumstances may entitle either party to a later award of alimony. Id. at 1048. We have consistently held that failure to reserve the issue of alimony divests the trial court of jurisdiction to entertain such a request in the future. See Hanna v. Hanna, 688 So.2d 887 (Ala.Civ.App.1997); Pilgrim v. Pilgrim, 596 So.2d 942 (Ala.Civ.App.1992). We pretermit discussion of the wife’s last two issues on appeal because the trial court will have the opportunity to address them on remand.

REVERSED AND REMANDED.

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

CRAWLEY, J., concurs in the result.


source: Caselaw Access Project

author: THOMPSON, Judge.

license: Public Domain

text:
    B.S.L. v. S.E.
    2010711.
    Court of Civil Appeals of Alabama.
    Oct. 25, 2002.

      Jay M. Ross and Betsy M. Turner of Ross & Jordan, P.C., Mobile, for appellant.
    A1 Pennington, Mobile; and Alvin F. Harris, Sr., of Lane & Harris, Saraland, for appellee.
   THOMPSON, Judge.

This is the second time the parties have been before this court. B.S.L. (“the mother”) and S.E. (“the father”) have one child, S.D.E. (“the child”). The parties never married. At the time of the hearing in this matter, the child was seven years old. On June 29, 1994, the trial court issued an order, based on the agreement of the parties, establishing the father’s paternity, awarding the mother primary custody of the child, awarding the father reasonable visitation, and ordering the father to pay child support.

On May 19, 1999, the father filed a motion seeking immediate custody of the child. The trial court denied that motion and, treating the motion as one for a determination of dependency of the child, set a hearing for July 19, 1999. The trial court then entered an order postponing the July hearing, granting the father pen-dente lite custody of the child, and granting the mother visitation. On February 18, 2000, the parties entered into an agree-merit expanding the mother’s visitation, pending a final hearing. On January 23, 2001, May 8, 2001, and May 9, 2001, the trial court held hearings and received ore tenus evidence (hereinafter referred to as “the hearings”). On May 16, 2001, the trial court entered a judgment in which, among other things, it awarded custody of the child to the father. The trial court’s May 16, 2001, judgment did not find the child to be dependent. The mother appealed. B.S.L. v. S.E., 826 So.2d 890 (Ala.Civ.App.2002) (“B.S.L. I”).

In its May 16, 2001, judgment, the trial court made a number of specific findings of fact. Among those findings of fact, the trial court found that the standard set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984), did not apply to the case; that the mother, by her own admission, was not a fit parent at the time the father filed his May 19, 1999, petition for a modification of custody; and that at the time of the hearings, both parents were fit and proper parents. The trial court’s May 16, 2001, order states that the trial court “specifically rejected] joint legal custody as a result of the evidence which [was] presented which show[ed] a great deal of animosity between the parties and an unwillingness to compromise or set aside petty disputes.”

In B.S.L. I, this court concluded that the hearings related to the issue of custody rather than to the issue of dependency, and, thus, the trial court should have applied the appropriate custody standard. B.S.L. I, 826 So.2d at 892. Because the mother had been awarded primary custody in the trial court’s June 29, 1994, order, this court concluded that the standard set forth in Ex parte McLendon, supra, was the appropriate standard to apply to the facts of the case. B.S.L. I, 826 So.2d at 892. Thus, this court concluded in B.S.L. I that the trial court in its May 16, 2001, judgment erred in applying the best-interest standard rather than the more stringent standard set forth in Ex parte McLendon, supra, in modifying its custody order as it relates to the child. This court reversed the trial court’s May 16, 2001, judgment and remanded the case for the trial court to apply the McLendon standard to the facts of the case. B.S.L. I, 826 So.2d at 892. On remand, the trial court, on April 4, 2002, entered an order finding that the father had met the standard set forth in Ex parte McLendon, supra, awarding custody of the child to the father, awarding the mother standard visitation, and ordering the mother to pay child support of $227 per month. The mother appeals.

The trial court’s judgment based on evidence received ore tenus is entitled to a presumption of correctness on appeal and will not be reversed absent a showing that the trial court abused its discretion or that the judgment is so unsupported by the evidence as to be plainly and palpably wrong. Ex parte Byars, 794 So.2d 345 (Ala.2001); Scholl v. Parsons, 655 So.2d 1060 (Ala.Civ.App.1995). This “presumption of correctness is based in part on the trial court’s unique ability to observe the parties and the witnesses and to evaluate their credibility and demeanor.” Littleton v. Littleton, 741 So.2d 1083, 1085 (Ala.Civ.App.1999). However, when a trial court improperly applies the law to the facts, the trial court’s judgment is not entitled to a presumption of correctness on appeal. Laminack v. Laminack, 675 So.2d 479 (Ala.Civ.App.1996).

The trial court’s April 4, 2002, order states, in pertinent part:

“2. The court does find that circumstances changed from the rendition of [the] order on June 29, 1994, until the filing date of the petition for change of custody filed by the father herein on May 19, 1999, in that, the mother became unfit and at the time of the filing of this petition, May 19,1999, she was an unfit parent due to her chronic addiction to, and abuse of, alcohol and drugs.
“3. The court does find further changed circumstances, in that, the child’s custody was awarded pendente lite to the father pending final hearing herein for a period well in excess of two (2) years, and that the child bonded with the father during that time.
“4. On the basis of all the evidence presented, and the changed circumstances found by the court, the court does find that it would materially promote the best interest of the child if her custody was awarded to her father, and that said change and the benefits therefrom far outweigh any inherent disruption as a result of change in custody and, therefore, it is in the best interest of the child that custody be awarded to the father.
“5. The court does further find that because of the length of time the child lived with the father under the pendente lite order, the inherent disruption presumed by law, in fact, does not exist in these circumstances.”

The mother asserts that the trial court erred in finding that the length of the father’s pendente lite custody absolved him of his burden to demonstrate that the benefits of a change in custody outweighed the inherent disruption to the child. Under Alabama caselaw, where there has been a previous judgment granting custody to one parent, or if one parent has given up legal custody, then custody will be modified only if the parent seeking the modification proves that there has been a material change in circumstances since the prior judgment, that the child’s best interest will be materially promoted by a change of custody, and that the benefits of the change will more than offset the inherently disruptive effect caused by uprooting the child. Ex parte McLendon, 455 So.2d at 866. This court has held that an award of custody pendente lite does not shift the burden set forth in Ex parte McLendon, supra. Grant v. Grant, 820 So.2d 824 (Ala.Civ.App.2001); Sims v. Sims, 515 So.2d 1 (Ala.Civ.App.1987).

In its April 4, 2002, order, the trial court specifically found that the inherent disruption caused by the modification of custody that is presumed by the law did not exist in this case because of the length of time the father had pendente lite custody of the child. Under McLendon, supra, the father must show not only that there has been a material change in circumstances since the previous award of custody such that the child’s best interest will be materially promoted by the change in custody, but also that the benefits of the change in custody will more than offset the inherent disruption caused by the change. Ex parte McLendon, 455 So.2d at 866. Although this court has held that the award of temporary custody is sufficient to shift the burden under McLendon, supra, an award of custody pendente lite is not. See Webb v. Webb, 508 So.2d 281, 282 (Ala.Civ.App.1987). Therefore, this court concludes that the trial court erred as a matter of law in finding that the inherent disruption caused by a modification of custody would not exist because the father had maintained pendente lite custody of the child for in excess of two years.

The mother’s other argument on appeal is that the father failed to meet the burden set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984), necessary to justify a change in custody, and, thus, that the trial court erred in awarding the father custody of the child. However, this issue is preter-mitted by our conclusion that the trial court erred in failing to properly apply the McLendon standard.

The judgement of the trial court is reversed and the cause is remanded for the entry of an order that properly applies the standard set forth in Ex parte McLendon, supra. Because this matter has been unresolved for so long, it would be in the child’s best interest for the trial court to timely address this matter on remand.

REVERSED AND REMANDED.

YATES, P.J., concurs.

CRAWLEY, J., concurs in the result.

PITTMAN, J., recuses himself.


text:
    Tracey Steel GRANT v. Tyrone Clyde GRANT.
    2010869.
    Court of Civil Appeals of Alabama.
    Oct. 25, 2002.
    Joan-Marie Kettell of Kettell & Campbell, L.L.P., Huntsville, for appellant.
   PITTMAN, Judge.

Tracey Steel Grant (“the wife”) and Tyrone Clyde Grant (“the husband”) were divorced in 1990. They had one minor child, who was born that same year. The wife was awarded primary physical custody of the child and the husband was ordered to pay child support. On September 26, 2001, the wife filed a petition to modify the amount of child support, seeking an increase in the amount from $108.72 per month, based on a material change in circumstances. Further, the petition to modify asked the trial court to address health insurance coverage and unpaid medical expenses of the minor child; both of which were not addressed in the divorce judgment. The husband, acting pro se, filed an answer and a counterclaim arguing that the wife was in contempt of court for failing to return specific items of property as ordered by the trial court in the original divorce judgment. Following a hearing at which ore tenus evidence was presented, the trial court increased the husband’s child-support obligation to $282 per month. In addition, the trial court found the wife in contempt and ordered her either to return the husband’s property listed in the divorce judgment or to pay the husband $2,000 for the property. The wife appealed.

The wife first contends that the trial court committed reversible error by failing to correctly apply the child-support guidelines found in Rule 32, Ala. R. Jud. Admin., when determining the amount of the modified child support. Specifically, the wife argues that the trial court incorrectly considered the husband’s two children from a previous marriage and calculated the child support based on the parties having three children instead of one child. Further, the wife also contends that the trial court failed to follow the Rule 32 child-support guidelines when it failed to complete a CS-42 as part of its child-support order.

This court has consistently held that when child support is made an issue on appeal and the record does not reflect compliance with Rule 32(E) this court must remand the case for compliance with the rule. Martin v. Martin, 637 So.2d 901, 903 (Ala.Civ.App.1994). The record on appeal contains no forms, although references are made to the guidelines in the minimal testimony taken at the hearing on the petition to modify. Neither the husband nor the wife filed CS-41 forms as required by Rule 32.

“Rule 32(E), Ala. R. Jud. Admin., requires that ‘[a] standardized “Child Support Guidelines” form and a “Child Support Obligation Income Statement/Affidavit” form shall be filed in each action to establish or modify child support obligations and [those forms] shall be of record and shall be deemed to be incorporated by reference in the court’s child support order.’ ”

Nelson v. Landis, 709 So.2d 1299, 1300 (Ala.Civ.App.1998). Because the required forms were not filed and the trial court failed to file a CS-42 form or to incorporate that form into its child-support modification order, we must remand the case for the trial court to secure CS-41 forms from the husband and the wife and to complete a CS-42 form in order to comply with the requirements set out in Rule 32(E).

Although the record does not contain the proper CS-41 and CS-42 forms, we have reviewed the trial court’s application of the child-support guidelines found in Rule 32(A)(1), Ala. R. Jud. Admin. We note that the trial court incorrectly considered the husband’s two children from a previous marriage when determining the amount of modified child support. The record indicates that the trial court based its calculation of child support on the husband and the wife’s having three children, giving each child a pro rata share of the total support due. Because only one child was born of the parties’ marriage, the trial court’s method of calculating the amount of child support due is clearly erroneous.

Rule 32(C)(1) provides in pertinent part as follows: “ ‘Adjusted gross income’ means gross income less preexisting child support obligations.... The category entitled ‘number of children due support’ in the schedule means children for whom the parents share joint legal responsibility and for whom support is being sought.” While it is a fact that the husband has two children from a previous marriage as to whom he also had child-support obligations, the husband and the wife had only one child. The trial court apparently did not deduct from the husband’s gross monthly income the amount of support paid for the two children of the previous marriage before calculating the support due for the one child. See State ex rel. English v. Troisi, 659 So.2d 658 (Ala.Civ.App.1995); see also Low v. State ex rel. Wattman, 602 So.2d 485 (Ala.Civ.App.1992). Therefore, we find the trial court incorrectly applied the child-support guidelines insofar as it calculated the amount of support due based on three children. Accordingly, the judgment insofar as it calculates the amount of child support is reversed.

The wife next argues that the trial court erred by finding her in contempt for failing to return the husband’s property as ordered in the original judgment of divorce.

“‘[Wjhether a party is in contempt of court is a determination committed to the sound discretion of the trial court and, absent an abuse of that discretion or unless the judgment of the trial court is unsupported by the evidence so as to be plainly and palpably wrong, [the appellate] court will affirm.’ ”

Cavender v. State Mut. Ins. Co., 748 So.2d 863, 868 (Ala.1999) (quoting Stack v. Stack, 646 So.2d 51, 56 (Ala.Civ.App.1994)). It is completely within the trial court’s discretion to determine whether a party is in contempt. In reviewing a case alleging contempt, our review of the record is limited solely to determining if there is support for the trial court’s order. Seay v. Seay, 678 So.2d 1189 (Ala.Civ.App.1996).

The record indicates that the wife failed to return several items of the husband’s personal property. While the record reveals that the trial court heard no extensive testimony regarding the wife’s failure to return the property, the record does show that the wife did not object to the court’s finding of contempt. When the issue of the wife’s failure to return the husband’s personal property was addressed, the court referenced an off-the-record discussion to which all parties were present. Further, the wife agreed to pay the husband, through the clerk’s office, $2,000 for the personal property. In light of the foregoing, we cannot say that the judgment of the trial court was plainly and palpably wrong. See Cavender, supra. Therefore, we conclude that the trial court did not abuse its discretion by finding the wife in contempt.

We affirm the trial court’s judgment as to the finding of contempt, but we reverse its judgment as to the calculation of the award of child support and remand the case for the trial court to calculate the correct amount of child support pursuant to Rule 32(C)(1), Ala. R. Jud. Admin. On remand, the trial court must obtain CS-41 forms from the husband and the wife as well as complete a CS-42 form to comply with Rule 32(E), Ala. R. Jud. Admin.

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

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

THOMPSON, J., concurs in the result.


author: CRAWLEY, Judge.

text:
    Russell DIAL v. Jack BOND.
    2011008.
    Court of Civil Appeals of Alabama.
    Oct. 25, 2002.
    Robert M. Seal, Livingston, for appellant.
    Nathan G. Watkins, Jr., Livingston, for appellee.
   CRAWLEY, Judge.

Russell Dial appeals from a judgment establishing a boundary line between his property and property owned by Jack Bond, a coterminous landowner. We affirm.

Dial has title to the east half of the northeast quarter of section 15, Township 18 north, Range 4 west. Bond has title to the northwest quarter of section 14, Township 18 north, Range 4 west. Both men acquired their property by deed and by will from family members.

Dial sued Bond, contending that the boundary line between their properties is not the United States government survey line between sections 14 and 15, but some point to the east of an old fence that runs generally parallel to the section line. Dial claims that the parties and their predecessors in title have, for decades, recognized the fence or a point east of the fence as the true boundary line. After an ore tenus proceeding, the trial court determined that the boundary line was the section line running north and south between sections 14 and 15. Dial appealed to the Alabama Supreme Court. The supreme court transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

All conveyances describe the parcels by reference to sections and quarter-sections. None of the descriptions in either party’s title documents refers to an “old fence.” Dial presented a witness, Barry Tew, whose testimony indicated that Robert Bond, Jack Bond’s predecessor in title, had recognized a fence, or some point east of a fence, as the boundary line between his property and Dial’s property.

Barry Tew testified that he had cut timber for Robert Bond in the 1970’s. He said that Mr. Bond had instructed him to cut up to a fence that divided the Bond property from the Dial property. Tew testified that he had complied with those instructions; he said that after the timber was cut, Coleman Dial, who was Russell Dial’s predecessor in title, complained to Mr. Bond that, along a certain strip, the boundary line was east of the fence and that, by cutting to the fence, Tew had cut “over the line on him.” Tew stated that, in 1975, Robert Bond had agreed to reimburse Coleman Dial for the timber that was cut “over the line.” The trial court admitted a document reflecting that agreement. On cross-examination, Tew acknowledged that he did not know whether the 1975 agreement concerned the property that is the subject of the present dispute or whether it concerned property adjoining the disputed areas to the north in sections 10 and 11. The survey map included in the record indicates that, in the northern portion of section 15, as well as in the southern portion of section 10, the section line is to the east of the old fence. Dial presented no evidence as to the location of the strip as to which Robert Bond reimbursed Coleman Dial for cutting Dial’s timber. Dial also presented no evidence indicating that either he or his predecessors in title had adversely possessed the property up to the fence or to a line east of the fence — the line that he claims is the boundary.

Bond presented evidence indicating that the parties’ predecessors in title had agreed to accept a 1984 survey showing that the boundary line between their properties was the section line. Dial testified that his predecessor in title had not assented to the boundary line shown on the survey.

The trial court entered the following findings of fact and conclusions of law:

“1. [Dial] has presented no evidence as to the location of any alternate boundary between the property he owns, to-wit: the E]é of the NE 1/4 of Section 15, Township 18 North, Range 4 West, and the property owned by ... Jack Bond, to-wit: the NW 1/4 of Section 14, Township 18 North, Range 4, all being located in Sumter County, Alabama, other than the Quarter Section Line which is the East-West boundary between Sections 15 and 14, Township 18 North, Range 4 West.
“2. [Dial] has presented no evidence that there is a boundary line between the property of [Dial] and [Bond] as described above which ‘lies adjacent to and East of an old fence line.’ [Dial] has presented no evidence that any boundary line lying adjacent to and East of an old fence line exists or has been recognized by the parties or their predecessors in title.
“3. The Court finds that the boundary line in question has been in place along the Quarter Section Line running North and South for more than ten (10) years and in fact, at least since 1984 and is a well marked and recognized and agreed to boundary line.
“4. The Court further finds that this line was surveyed by agreement of the parties and that the survey line running North and South on the Quarter Section Line has been marked and has been recognized as the boundary line between the parties for more than ten (10) years.
“Based on the foregoing findings of fact, the Court is of the opinion that Judgment should be entered accordingly. It is, therefore, ORDERED, ADJUDGED, AND DECREED that the boundary line between [Dial’s] property ... and [Bond’s] property ... is the North-South Quarter Section Line dividing Sections 15 and 14, Township 18 North, Range 4 West.”

The trial court’s findings of fact are supported by the evidence in the record.

“It is well established that when a trial court, after ore tenus proceedings, enters a judgment setting a boundary line between coterminous landowners, that judgment is presumed correct if it is supported by credible evidence. Valentine v. Ireland, 580 So.2d 581 (Ala.1991).”

Henderson v. Dunn, [Ms. 2991235, November 16, 2001] — So.2d -, - (Ala.Civ.App.2001). Although Dial presented evidence indicating that the parties’ predecessors in title had agreed that the boundary line between their properties was an old fence or a point east of the fence, the trial court apparently chose not to credit that testimony. Moreover, even if the trial court had believed that the parties’ predecessors had agreed that the boundary line was an old fence (or something other than the section line), it would not, without more, have been authorized to establish the boundary line between these parties as something other than the section line. See Mims v. Alabama Power Co., 262 Ala. 121, 77 So.2d 648 (1955); McNeil v. Hadden, 261 Ala. 691, 76 So.2d 160 (1954); Alford v. Rodgers, 242 Ala. 370, 6 So.2d 409 (1942).

In Alford v. Rodgers, a deed established the northern boundary of the plaintiffs land, which was wholly situated in section 14, as the section line between sections 14 and 11. The plaintiff, however, had claimed property up to a road in section 11. The court held that when the plaintiff conveyed the land by the same description under which he had purchased it, the conveyance did not include the land between the section line and the road in section 11. The court stated:

“It is of course true that no act or even agreement of the parties can take the land out of section 11 and put it in section 14. And while the boundary line between adjacent land owners may be fixed and changed by agreement or by adverse possession, they cannot relocate a section line as surveyed by the Government surveyors. So that if the land was in section 11 as thus surveyed, it has so remained and still is thus situated.... It follows that a conveyance of land described as in section 14 does not on its face include land in section 11.”

Alford v. Rodgers, 242 Ala. at 373, 6 So.2d at 410 (quoted in McNeil v. Hadden, 261 Ala. at 693, 76 So.2d at 162, and Mims v. Alabama Power Co., 262 Ala. at 124, 77 So.2d at 651). “[W]hen the land is described by Government numbers, the deed does not purport to convey an area outside of such described land.” Alford v. Rodgers, 242 Ala. at 373, 6 So.2d at 411.

In Mims v. Alabama Power Co., the section line was south of Yellow Leaf Creek, but the parties’ predecessors in title had agreed that the creek would be the dividing line between their properties. The court held that such an agreement could

“avail [the parties] nothing- [Because their deeds describe only lands in Section 25, and even though title to the land in Section 24 south of the creek may have been in [one party’s] predecessor, it could pass to [the party] ‘only by a conveyance wherein the said strip is sufficiently described or by the status of adverse possession for the required length of time.’ ”

262 Ala. at 125, 77 So.2d at 651 (quoting McNeil v. Hadden, 261 Ala. at 695, 76 So.2d at 163).

The judgment of the circuit court is affirmed.

AFFIRMED.

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

MURDOCK, J., concurs in the result.

      . The decisions in Mims, McNeil, and Alford have been implicitly limited by Watson v. Price, 356 So.2d 625 (Ala.1978), insofar as those decisions concern the tacking of periods of adverse possession by successive property owners. In the present case, there was no evidence of adverse possession and no reliance on tacking.


author: CRAWLEY, Judge. MURDOCK, Judge,

text:
    William GAULDEN and Evelyn Gaulden v. Stephen P. MITCHELL et al.
    2010644.
    Court of Civil Appeals of Alabama.
    Nov. 8, 2002.

      Donald H. Brockway, Jr., Birmingham, for appellants.
    Conrad M. Fowler, Jr., of WaUace, Ebis, Fowler & Head, Columbiana; and John M. Laney, Jr., of Laney & Foster, Birmingham, for appellee Stephen P. MitcheU.
    James W. Fuhrmeister of Ahison, May, Alvis, Fuhrmeister, Kimbrough & Sharp, L.L.C., Birmingham, for appellees Gary Lucas and Diane Lucas.
    Jesse P. Evans III and Michael B. Odom of Lange, Simpson, Robinson & SomerviUe, L.L.P., Birmingham, for appel-lees James Heslop and Laura Dee Heslop.
    T. Kelly May and H. Cannon Lawley of Huie, Fernambucq & Stewart, L.L.P., Birmingham, for appebees First Real Estate Corporation of Alabama, Jib Dunn, Kristi Bell, and Pat Berry.
   CRAWLEY, Judge.

Wilbam Gaulden and Evelyn Gaulden appeal from the trial court’s summary judgments for (1) Stephen P. MitcheU; (2) Gary Lucas and Diane Lucas; (3) James Heslop and Laura Heslop; and (4) Jill Dunn, Kristi Beb, Pat Berry, and First Real Estate (hereinafter cobectively referred to as “the real-estate defendants”) (all these defendants hereinafter sometimes cobectively referred to as “the defendants”). We affirm.

The trial court succinctly set out the facts underlying this action as fobows:

“This matter arises out of a creative financing arrangement by and between the [defendants, and the subsequent purchase of a used residence by [the Gauldens]. At the time of the closing of the home, [MitcheU] owned the property, but had never bved in the home. [The Lucases], the prior owners and residents of the home, had sold the house to ... Mitchell to enable the Lucases to qualify for and to purchase another home from [the Heslops], who subsequently bought a home in Greystone. MitcheU allowed the Lucases and the Heslops to draw from his credit Une to pay off the Lucas mortgage and to provide the financing. The proceeds from the sale of the home at issue ... were to then be used to pay off the credit line draw by Mitchell. At closing, [Laura] Heslop signed the deed by Power of Attorney from Mitchell, conveying his interest to the Gauldens.”

Additionally, a “seller’s property disclosure” was completed prior to closing, which stated, in pertinent part, (1) that the home’s roof was three years old; (2) that there were no moisture or water problems in the basement; (3) that the home’s septic tank was working; (4) that the seller had no knowledge of damage caused by termites, dry rot, pests or rodents; and (5) that there was no damage caused by wind, fire, or flood.

At closing, a sales contract was signed by the Gauldens and by Laura Heslop, on behalf of Mitchell. The contract stated, in pertinent part:

“9. CONDITION OF THE PROPERTY: NEITHER SELLER NOR ANY AGENT MAKES ANY REPRESENTATIONS OR WARRANTIES REGARDING CONDITION OF THE PROPERTY EXCEPT TO THE EXTENT EXPRESSLY SET FORTH HEREIN. Purchaser has the obligation to determine any and all conditions of the Property material to Purchaser’s decision to buy the Property, including, without limitation, the condition of the heating, cooling, plumbing and electrical systems and any built-in appliances, and the roof and the basement, including leaks therein; the size and area of the Property; construction materials, including floors; structural condition; utility and sewer or septic tank availability and condition; subsurface condition, including radon and other potentially hazardous materials and/or gases; and any matters affecting the character of the neighborhood. Purchaser shall have the opportunity to determine the condition of the Property in accordance with ‘A,’ ‘B,’ or ‘C’ below, as selected by the parties....
“B. Purchaser has inspected the Property, either personally or through others of Purchaser’s choosing, and, without relying on any representation or warranty from Seller or Broker or any salesperson or any printed or written description of the Property, accepts the property in its present ‘as is’ condition, including ordinary wear and tear to closing.... [Initialed by the Gauldens]
“Purchaser has the right and responsibility to walk through and inspect the Property prior to closing and notify seller immediately if the Property is not in the condition agreed under ‘A,’ ‘B,’ or ‘C’ above, whichever one has been selected by the parties. After closing, all conditions of the property are the responsibility of Purchaser.
“19. ENTIRE AGREEMENT. This Contract constitutes the entire agreement between Purchaser and Seller regarding the Property, and supercedes all prior discussion, negotiations and agreements between Purchaser and Seller, whether oral or written. Neither Purchaser, Seller, nor Broker or any sales agent shall be bound by any understanding, agreement, promise, or representation concerning the Property, expressed or implied, not specified herein.”

On February 25, 1998, the Gauldens sued Mitchell, seeking compensatory and punitive damages on claims of misrepresentation, fraud, and negligence. They contend that they relied on the representations in the seller’s property disclosure concerning the home’s roof and basement, which, they say, were false. On June 23, 1998, the Gauldens amended their complaint to include the Lucases, the Heslops, and the real-estate defendants and to add additional counts alleging conspiracy as to the defendants and negligence as to Jill Dunn and First Real Estate. On August 28, 1998, the Gauldens filed a second amended complaint to replace their conspiracy and negligence counts from the first amendment to their complaint with counts alleging (1) negligence against the Lucases, the Heslops, and the real-estate defendants; (2) suppression and misrepresentation against Mitchell, the Heslops, Berry, Bell, and Dunn, alleging that, in addition to false information regarding the home’s roof and basement, they were also given false information concerning the septic tank’s being in working order, the lack of knowledge of damage caused by termites, dry rot, pests, or rodents, and damage caused by wind, fire, or flood; and (3) negligence against First Real Estate, based upon the doctrine of respondeat superior for the alleged negligence of its employees.

On October 27, 2000, Mitchell, the Lu-cases, and the real-estate defendants all filed separate motions for a summary judgment. On October 30, 2000, the Hes-lops also filed a motion for a summary judgment. On September 19, 2001, the Gauldens filed a single opposition to the defendants’ summary-judgment motions; only the real-estate defendants filed a reply to the opposition. On January 2, 2002, the trial court entered an order stating, in pertinent part:

“CLAIMS AGAINST DEFENDANT LUCASES
“First, the plaintiffs contend that these Defendants, the prior owners of the house, were somehow negligent in their handling of this sale. The evidence clearly establishes that the Lucas-es did not own the home at the time of the sale. Notwithstanding the fact that the Lucases had conveyed their interest in the home prior to the sale to the plaintiffs, the sale of a used home in Alabama is still governed by the doe-trine of caveat emptor, and there is no implied warranty of habitability. Boakle v. Bedwell Construction Co., Inc., 770 So.2d 1076 (Ala.2000). Specifically, the plaintiffs’ main allegation against these defendants is that they failed to disclose certain information about the residence. Since no fiduciary relationship existed between these parties, these defendants were under no duty to disclose anything. Further, the plaintiffs testified that they had no conversations with the Lucases prior to the sale, and there is no evidence before the court that these defendants misrepresented anything to the plaintiffs. Accordingly, the Lucases are entitled to a judgment as a matter of law.
“CLAIMS AGAINST DEFENDANT MITCHELL
“Defendant Mitchell acquired the home from the Lucases on December 27, 1995. Mitchell did not reside in the home at any time prior to the sale to the plaintiffs, and in fact, had never even seen the property. At the closing on February- 18, 1996, Mitchell conveyed his interest to the Gauldens via a Limited Power of Attorney issued to Defendant Laura Heslop.
“The plaintiffs contend that the various defendants misrepresented or suppressed, among other things, the existence of a septic tank, the presence of termites in a shed under the deck, the age of the roof, and water problems in the basement. In a claim for fraudulent suppression, the plaintiff must show: (1) that the defendant had a duty to disclose a material fact; (2) that the defendant concealed or failed to disclose that fact; (3) that the concealment induced the plaintiff to act; and (4) that the defendant’s actions resulted in harm to the plaintiff. Bethel v. Thorn, 757 So.2d 1154 (Ala.1999). Fraudulent misrepresentation, on the other hand, requires proof: (1) that the defendant made a false representation; (2) of a material existing fact; (3) on which the plaintiff reasonably relied; and (4) which proximately caused damage to the plaintiff. Id.
“The general rule in Alabama is well established that sellers of used property have no duty to disclose any defect to a purchaser. Boswell v. Coker, 519 So.2d 493 (Ala.1987). However, Section 6-5-102, Code of Alabama 1975, provides several exceptions to this general rule. With regard to a seller or a seller’s agent’s duty to disclose defects in a used home, the Supreme Court of Alabama has stated:
“ ‘In Alabama the seller of used residential real estate generally has no duty to volunteer knowledge; however, when a direct inquiry is made of him or her, the seller has a duty to respond honestly. However, if the seller, or the seller’s agent, is questioned directly about specific defects, or if the seller or the agent has knowledge of specific defects that affected health or safety and the defect is not known to or readily observable by the buyer, the seller or the agent has a duty to disclose and is hable for damages for nondisclosure.’
“Roberts v. C & S Sovran Credit Corp., 621 So.2d 1294, 1297 (Ala.1993) (citations omitted).
“The plaintiffs have failed to present any evidence of any misrepresentations made by Defendant Mitchell, as well as any evidence tending to show a specific, direct inquiry, or that a fiduciary relationship existed between the parties. Rather, the Gauldens testified in their depositions that they were in fact aware of the existence of the septic tank prior to closing, that they were unsure of the age of the roof, and that they were aware of the termite damage in the storage shed under the deck. Regarding the alleged water flooding that the plaintiffs contend the seller had a duty to disclose, despite no specific inquiry, because they say it involved a health concern, there is simply no evidence before the court to indicate that this defendant had knowledge and failed to disclose it to the plaintiffs. Accordingly, Defendant Mitchell is entitled to a judgment as a matter of law on all claims against him.
“CLAIMS AGAINST DEFENDANT HESLOPS
“The plaintiffs’ allegations against these defendants include breach of contract, negligence, misrepresentation, suppression, and conspiracy.[] The evidence presented to the court in support of the motion indicates that the Heslops did not have any conversations with the plaintiffs prior to the closing, and that their role in this transaction was limited to the fact that Laura Heslop signed the deed to the plaintiffs to transfer Mitchell’s interest pursuant to the Power of Attorney, and that the Heslops were able to purchase a different home after the Lucases purchased theirs. The plaintiffs testified that they had no conversations with the Heslops and there is no evidence that there was a contract of any kind between these parties. Further, there is no evidence to support a contention that these defendants owed any duty whatsoever to the plaintiffs which could conceivably give rise to a negligence or suppression claim, nor is there any evidence of any representations made by these defendants that would support a fraudulent misrepresentation claim. They are neither the seller nor the seller’s agent, and therefore owed no duty to disclose any defects. Roberts, supra. Accordingly, the Hes-lops are entitled to a judgment as a matter of law.
“CLAIMS AGAINST THE REAL ESTATE AGENTS
“The Gauldens testified that they had not had any conversations with Defendant Pat Berry or Defendant Kristie Bell prior to the closing, and that no representations were made to them by these defendants. The evidence indicates that Defendant Jill Dunn ... was a ‘seller’s agent,’ and the plaintiffs testified in their deposition that no direct representations were made to them by Dunn. The record evidence also contains the Property Disclosure Form which indicates that the property had a septic tank, that the roof was three years old, that there was no termite damage to the home itself, and that there was no knowledge of any moisture or flooding problems by the agents.
“As stated previously, the plaintiffs testified in their depositions that they were aware of the presence of the septic tank before closing, that they were unsure of the age of the roof, and that they were aware of the presence of the termites under the deck before closing. Additionally, the Gauldens have failed to present any evidence in opposition to the pending motion that any of the real estate agent defendants had knowledge of any moisture problems in the basement, which would affect their health or safety, and failed to disclose them. Moreover, in the Sales Contract itself, the plaintiffs acknowledged purchasing the property ‘as is,’ and that they had not relied on any advice or representation from any agents of First Real Estate.
“Generally, an agent will not be held liable for fraud for merely relaying information concerning the condition of a home, without proof that there was knowledge that the statement was false. Nolan v. Melton, 740 So.2d 1096 (Aa. Civ.App.1999). Additionally, as previously noted, there is simply no duty on the listing or selling agent of a used residence to volunteer any knowledge unless it involves a specific defect affecting health or safety; however, the agent must respond honestly to direct inquiries. Roberts, supra. In this case, the specific inquiry exception would not be applicable because the plaintiffs testified that they did not make any specific inquiries regarding the condition of the house to any of the Defendant agents, nor is there any evidence that the defendant agents had any knowledge of any specific defects affecting health or safety that were not readily observable to the plaintiffs. Id. Moreover, there is no duty owed by an agent to a purchaser to disclose a latent defect of which the agent is unaware. Cato v. Lowder Realty Co., 630 So.2d 378 (Ala.1993). Aso, the fact that the plaintiffs executed ‘as is’ statements disclaiming any reliance on warranties or representations by these agents undermines their reliance and fraud contentions. Haygood v. Pounders Realty, Inc., 571 So.2d 1086 (Ala.1990). In Rutenberg Homes, Inc. v. Norris, [804 So.2d 180] (Aa.2001), the Aabama Supreme Court has recently held that the plaintiffs in that case could not have justifiably1 relied on the seller’s representations when the language in the contract clearly absolved the defendants of liability, and where the plaintiffs were capable of reading and understanding the contract.
"1[The events in this case occurred] before Foremost Insurance Company v. Parham, 693 So.2d 409 (Ala.1997), wherein the Court readopted the 'reasonable' reliance standard for judging a fraud claim. Justifiable reliance on the defendant's representation, a lesser burden to prove by the plaintiff, is not present where the representation is ‘one so patently and obviously false that he must have closed his eyes to avoid the discovery of the truth.’ Id. at [418 (quoting Johnson v. State Farm Ins. Co., 587 So.2d 974, 977-79 (Ala.1991), in turn quoting Southern States Ford v. Proctor, 541 So.2d 1081, 1091-92 (Ala.1989)(Hornsby, C.J., concurring specially)).]”

On February 13, 2002, the Gauldens filed a notice of appeal to the Alabama Supreme Court. On March 27, 2002, this case was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala.Code 1975. On appeal, the Gauldens argue that the trial court erred in entering summary judgments for the defendants because, they say, there were disputed issues of material fact and the defendants were not entitled to judgments as a matter of law. Our review of a summary judgment is de novo.

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

Hobson v. American Cast Iron Pipe Co., 690 So.2d 341, 344 (Ala.1997).

I. The Lucases

Viewed in a light most favorable to the Gauldens, the evidence tends to show the following. Diane Lucas provided the information contained in the seller’s property disclosure, which was confirmed by her during a telephone conversation with Laura Heslop. Laura Heslop then signed the document on behalf of Mitchell. Diane Lucas was also involved in the sale of the home in that she engaged the services of the real-estate defendants and was contacted by them concerning whether she wanted to accept the purchase price offered by the Gauldens. Affidavit testimony by a neighboring homeowner stated that the basement had flooded while the Lucases lived in the home and affidavit testimony by a roofing company employee stated that, in his opinion, the roof on the home was 12 to 15 years old. Information concerning the home’s septic tank and termite damage was disclosed to the Gaul-dens before they closed on the home.

In the sales contract, as well as the seller’s property disclosure, the seller was identified as Mitchell, not the Lucases. However, even viewing the evidence in a light most favorable to the Gauldens, considering that the Lucases had a duty to the Gauldens because of the arrangement that existed between them, the Heslops, and Mitchell, we conclude that the trial court’s judgment is due to be affirmed. Our supreme court has stated:

“Although Alabama retains the caveat emptor rule with regard to the resale of used residential real estate (Ray v. Montgomery, 399 So.2d 280 (Ala.1980)), it is not applicable, under certain circumstances, when the purchaser of a used house inquires directly (either of the seller or of the seller’s agent), prior to closing, about a material defect or condition of the home.”

Fennell Realty Co. v. Martin, 529 So.2d 1003, 1005 (Ala.1988).

The Gauldens testified that they never had any contact with the Lucases during this transaction. While the Gauldens argue in their brief to this court that théy made a direct inquiry based upon the seller’s property disclosure, they undermine their own argument by conceding that that document was not provided as a result of a direct inquiry by them, but was made available to all potential purchasers. The Gauldens also personally inspected the home and chose not to have it professionally inspected. Furthermore, the Gauldens indicated, by initialing the “as is” clause and signing the sales contract, that they had not relied on any representation made by the seller or by a salesperson, or on any written or printed description, in purchasing the home. In a similar case, our supreme court held that the buyers’ signing similar documents stating they had not relied on representations supported the summary judgment for a realty company. Haygood v. Burl Pounders Realty, Inc., 571 So.2d 1086 (Ala.1990).

II.Mitchell

As stated previously, Mitchell was identified as the seller in both the seller’s property disclosure and the sales contract. Laura Heslop signed both documents on behalf of Mitchell. The plaintiffs failed to show that they made any direct inquiry to Mitchell before their closing on the property, Fennell Realty Co., supra; rather, the affidavit testimony of Evelyn Gaulden was that they had informed Jill Dunn that they needed a home with a finished livable ground level. This was not a direct inquiry to Mitchell concerning the basement. Further, the Gauldens disclaimed any reliance on any representations made by Mitchell by initialing the “as is” clause and by signing the sales contract, Haygood, supra. The trial court’s summary judgment as to Mitchell is therefore due to be affirmed.

III. The Heslops

Our review of the record confirms the trial court’s finding that there was no evidence to support that the Heslops made any representations to the Gauldens concerning the condition of the home. Further, there is no evidence that the Gauldens made any direct inquiries of the Heslops concerning the home. Fennell Realty Co., supra. No communication took place between the Heslops and the Gauldens. Accordingly, the trial court’s summary judgment for the Heslops is due to be affirmed.

IV. The Real-Estate Defendants

The Gauldens failed to present any evidence that they made any direct inquiries of the real-estate defendants about the home’s condition. Fennell Realty Co., supra. They also disaffirmed any reliance on any representations that may have been made by the real-estate defendants, Hay-good, supra, and the trial court’s summary judgment for the real-estate defendants is also due to be affirmed.

Y. Conclusion

Based on the foregoing, the summary judgments for the defendants are due to be affirmed.

AFFIRMED.

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

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

MURDOCK, Judge,

concurring in part and dissenting in part.

I respectfully dissent insofar as the majority opinion affirms the trial court’s summary judgment in favor of Diane Lucas. I agree that Lucas had no affirmative duty to act or to make any disclosures in this case. However, once she undertook to do so, she had an obligation to do so honestly. Further, only Mitchell and the Gauldens were parties to the documents signed at closing. Lucas, therefore, was not entitled to the protection of the exculpatory provisions of the sales contract.

It therefore appears to me that genuine issues of material fact exist as to claims against Lucas and that, accordingly, the trial court erred in entering the summary judgment in her favor.

      . The Gauldens, in their second amended complaint, dropped the claim of conspiracy.


text:
    T.L.D. v. C.G.
    2010772.
    Court of Civil Appeals of Alabama.
    Nov. 8, 2002.

      Slade Watson, Mobile, for appellant.
   CRAWLEY, Judge.

T.L.D. is the mother of A.C.G., a 12-year-old girl. In 1997, C.G. was determined to be the father of A.C.G. and was ordered to pay $176 per month in child support. On November 14, 2001, the mother filed a petition to hold the father in contempt for nonpayment of child support and to modify the child-support order to increase the support. The father answered and counterclaimed, seeking a reduction in his support obligation because, he says, he was “experiencing a financial hardship due to a lack of work” and was suffering from hypertension that limited his ability to work.

At a bench trial held on April 11, 2002, the trial court found the father in contempt and determined that he had a child-support arrearage of $7,982.25. The court entered a judgment in favor of the mother for that amount. At trial, the court stated that interest in the amount of $4,977.68 had accrued on that arrearage. The court, however, failed to include interest in the judgment. The court further stated that it was “ordering no pay back on the arrear-age at this time,” and declined to sanction the father for the contempt. The court stated:

“I am finding him in contempt, but I am not going to do anything about it at this time. I find that the modified amount of child support is more than he can pay right now. He is not working. I guess he is voluntarily underemployed, but you [the mother] can go pursue your judgment some other way. If you think he has property, go after it that way.”

The father testified that he had been sporadically employed as a laborer at the Alabama State Docks facility since 1997, earning $10 to $12 per hour. He had also worked as a temporary laborer for three or four other employers. He said that at the time of the hearing he was looking for work and that he was currently receiving unemployment-compensation benefits of $50 per week. The father testified that he had had a commercial driver’s license since 1992. He submitted a tax return indicating that he had earned approximately $4,000 in 2001.

The father stated that his mother had died in October 2000 and that he had inherited $5,600 upon her death, as well as a joint interest in a 1987 truck with his sister. The father testified that he was currently three months behind on paying his rent, which is $200 per month. The record indicates that the father had filed a petition in bankruptcy under Chapter 13 in April 1999 and had been making his child-support payments through the bankruptcy trustee. His Chapter 13 proceeding was dismissed in October 2001.

The mother argues that the trial court erred by not adding interest to the amount she was awarded in the judgment and by failing to sanction the father for contempt.

I.

The mother’s complaint requests the trial court to “fix the current arrearage and enter a judgment therefor ... and to enter such other, further, and different relief as may be meet and proper in the premises herein considered.” The complaint does not specifically request that interest be awarded on the child-support arrearage. “But it is not necessary to [so request], when [interest] is payable by virtue of a statute having special reference to [the] situation.” Norris v. Wynne, 247 Ala. 100, 104, 22 So.2d 730, 733 (1945). “[I]t is well-settled under Alabama law that where there is statutory authority for interest, it is not required that one specifically pray for it in the complaint.” Trim Building Corp. v. White, 594 So.2d 124, 126 (Ala.Civ.App.1991). “When interest is payable by virtue of a statute or principle of law, and not by virtue of a contract, it is not necessary to claim interest in the complaint.” Roe v. Brown, 249 Ala. 425, 426, 31 So.2d 599, 600 (1947).

Section 8-8-10, ’ Ala.Code 1975, provides, in pertinent part:

“Judgments for the payment of money, other than costs, if based upon a contract action, bear interest from the day of the cause of action, at the same rate of interest as stated in said contract; all other judgments shall bear interest at the rate of 12 percent per annum, the provisions of Section 8-8-1 to the contrary notwithstanding....”

(Emphasis added.) Section 8-8-11, Ala. Code 1975, provides:

“Except as provided in this section, when partial payments are made, the interest due is first to be paid and the balance applied to the payment of the principal. In the case of a judgment for child or spousal support, or a judgment for medical support of a child or spouse, any partial payment shall be applied first to the principal, and the remaining balance, if any, shall be applied to the interest.”

(Emphasis added.)

“Under Alabama law, child-support payment ‘installments become final judgments as of the date due.’ Osborne v. Osborne, 57 Ala.App. 204, 206, 326 So.2d 766, 767 (Ala.Civ.App.1976). Because ‘judgments for the payment of money bear interest from the date of rendition’ ‘it follows that such [child-support] judgments would bear interest from due date.’ Osborne, 57 Ala.App. at 206, 326 So.2d at 767. Therefore, to properly calculate interest on an arrearage, one would have to compute the interest due on each installment from its due date. Id”

Hollen v. Conley, 840 So.2d 921 (Ala.Civ.App.2002).

We acknowledge that a number of this court’s decisions indicate that, in order to hold the trial court in error for failing to add interest to a child-support judgment, a party must have “properly requested” that interest be added. See, e.g., State ex rel. Lewis v. Davis, 835 So.2d 1019 (Ala.Civ.App.2002); Hackworth v. Hackworth, 736 So.2d 1116, 1117 (Ala.Civ.App.1999); State ex rel. Burt v. Morgan, 716 So.2d 729, 733 (Ala.Civ.App.1998); Cohn v. Cohn, 658 So.2d 479, 482 (Ala.Civ.App.1994); State Dep’t of Human Res. v. McGhee, 634 So.2d 573 (Ala.Civ.App.1994); McDavid v. McDavid, 627 So.2d 446 (Ala.Civ.App.1993); State ex rel. Hayes v. Hayes, 620 So.2d 49 (Ala.Civ.App.1993); Hawkins v. Harvey, 481 So.2d 907 (Ala.Civ.App.1985); Stewart v. Johnson, 401 So.2d 101 (Ala.Civ.App.1981). After having reviewed the relevant statutes and the precedent from our supreme court, we conclude that, to the extent that this court’s prior decisions require that a party make a specific request for interest to be added in a judgment awarding a child-support arrearage, they are erroneous.

By failing to award post-judgment interest on the child-support ar-rearage, the trial court erroneously applied the law to the facts. See State Dep’t of Human Res. v. Orr, 635 So.2d 1 (Ala.Civ.App.1994). “[A] trial court with jurisdiction over proceedings to enforce an earlier child-support judgment is without authority to waive the imposition of statutorily imposed postjudgment interest upon such payments.” Walker v. Walker, 828 So.2d 943, 945 (Ala.Civ.App.2002), citing State ex rel. Pritchett v. Pritchett, 771 So.2d 1048, 1051 (Ala.Civ.App.2000).

II.

Since July 11, 1994, all contempt proceedings in civil actions have been governed by Rule 70A, Ala. R. Civ. P. See Savage v. Ingram, 675 So.2d 892, 893 (Ala.Civ.App.1996); Ex parte Boykin, 656 So.2d 821, 828 n. 5 (Ala.Civ.App.1994). Rule 70A(a)(2) provides the following definitions of “criminal contempt” and “civil contempt”:

“(C) ‘Criminal contempt’ means either
“(i) Misconduct of any person that obstructs the administration of justice and that is committed either in the court’s presence or so near thereto as to interrupt, disturb, or hinder its proceedings, or
“(ii) Willful disobedience or resistance of any person to a court’s lawful writ, subpoena, process, order, rule, or command, where the dominant purpose of the finding of contempt is to punish the contemnor.
“(D) ‘Civil contempt’ means willful, continuing failure or refusal of any person to comply with a court’s lawful writ, subpoena, process, order, rule, or command that by its nature is still capable of being complied with.”

A party’s actions can support both criminal contempt and civil contempt. See State v. Thomas, 550 So.2d 1067 (Ala.1989).

“Civil contempt seeks to compel or coerce compliance with orders of the court, while a criminal contempt is one in which the purpose of the proceeding is to impose punishment .for disobedience of orders of the court....
“The sanction for civil contempt continues indefinitely until the contemnor performs as ordered. A critical distinction is that the sanction for criminal contempt is limited in Alabama district and circuit courts to a maximum fine of $100 and imprisonment not to exceed five days.”

State v. Thomas, 550 So.2d at 1072. “In Alabama, a willful failure to pay child support is a civil contempt of court subject to ‘all sanctions for enforcement of judgments.’ § 26-17-15, Ala.Code 1975.” Davenport v. Hood, 814 So.2d 268, 275 (Ala.Civ.App.2000).

Whether a party is in contempt of court is a determination committed to the discretion of the trial court. See Coleman v. Coleman, 628 So.2d 698 (Ala.Civ.App.1993). To hold a party in contempt under either Rule 70A(a)(2)(C)(ii) or (D), Ala. R. Civ. P., the trial court must find that the party willfully failed or refused to comply with a court order. See Carr v. Broyles, 652 So.2d 299 (Ala.Civ.App.1994). Inability to pay is a defense to a contempt action in a child-support-ar-rearage case. Id.

“When a parent is ordered to pay child support and fails to do so, a lack of ability to pay a delinquent amount is a complete defense to a civil contempt proceeding regarding the delinquent child support. In such a case, if the obligated parent presents evidence that [his] failure to pay the delinquency is due to financial inability, the burden then shifts to the parent to whom child support is due to prove beyond a reasonable doubt that the obligated parent is financially able to pay the amount of child support ordered. If a person is found in civil contempt because of [his] failure to pay a certain amount of money, and [he] shows that [he] is unable to pay that amount, then the contempt order must be set aside.”

Carr v. Broyles, 652 So.2d at 801-02 (citations omitted) (quoted in Seay v. Seay, 678 So.2d 1189, 1190 (Ala.Civ.App.1996)).

In the present case, the father presented evidence from which the trial court could have found that he was unable to pay $12,959.88 (an arrearage of $7,982.25 plus interest in the amount of $4,977.63). Commenting on that evidence, the trial court stated, “I find that the modified amount of child support is more than he can pay right now. He is not working.” Nevertheless, the court found the father in contempt — a finding that indicates the trial court determined that the father’s nonpayment of child support was willful. The trial court’s statements and findings appear to be inconsistent.

The apparent inconsistency might be explained by the trial court’s further statement, “I guess [the father] is voluntarily underemployed.” (Emphasis added.) Rule 32(B)(5), Ala. R. Jud. Admin., states, in pertinent part:

“If the court finds that either parent is voluntarily unemployed or underemployed, it shall estimate the income that parent would otherwise have and shall impute to that parent that income; the court shall calculate child support based on that parent’s imputed income.”

(Emphasis added.) If the trial court found that the father was voluntarily underemployed and if the trial court imputed income to him, then the finding that the father was in contempt of the child-support order would not necessarily be inconsistent with the finding that the “child support is more than [the father] can pay right now. He is not working.” The contempt finding could be construed as a determination that the father was able to pay child support but, by virtue of his voluntary underemployment, he had willfully failed or refused to pay.

Rule 32(B)(5) clearly requires the trial court to impute income to a parent who, it finds, is voluntarily unemployed. See Mitchell v. Mitchell, 723 So.2d 1267, 1269 (Ala.Civ.App.1998) (stating that “a trial court must impute income to a parent and calculate his or her child-support obligation based upon that parent’s potential income if ‘the court finds that [the] parent is voluntarily unemployed or underemployed’ ”) (emphasis added); Berryhill v. Reeves, 705 So.2d 505, 507 (Ala.Civ.App.1997) (same). To the extent that some of this court’s decisions imply, if not state, that the decision to impute income to a voluntarily unemployed or underemployed parent is discretionary, they are overruled on that point. See, e.g., Morin v. Morin, 678 So.2d 166, 168 (Ala.Civ.App.1996) (erroneously citing Rule 32(B)(5) for the proposition that the trial court may impute income to a voluntarily unemployed or underemployed parent); Cunningham v. Cunningham, 641 So.2d 807, 809 (Ala.Civ.App.1994) (stating that “[i]f the trial court finds that either parent is voluntarily unemployed or underemployed, it may impute that parent’s income and calculate the child support accordingly”) (emphasis added).

If the trial court intended to find the father in contempt because it determined that his voluntary underemployment was tantamount to a willful failure or refusal to comply with the court’s child-support order, then the contempt judgment is incomplete because it provides no means by which the father can purge himself of contempt and no sanction in the event of a failure to purge. Cf. Davenport v. Hood, 814 So.2d 268, 276 (Ala.Civ.App.2000) (assuming that after the trial court determines the existence of a child-support arrearage, the court should set out “the means by which that arrearage must be repaid or reduced”). The purpose of civil contempt is to compel or coerce compliance with the court’s orders. State v. Thomas, 550 So.2d at 1072. A contempt order that does not provide the contemnor with the means of purging himself of contempt is ineffective. Cf. Stevens v. Stevens, 641 So.2d 825, 828 (Ala.Civ.App.1994) (assuming that a contempt finding must be accompanied by the imposition of “such sanctions as may be necessary to effectuate compliance with the trial court’s orders”).

We are unsure what the trial court intended by the statements, “I guess he is voluntarily underemployed,” and “I find him in contempt but I am not going to do anything about it at this time.” The judgment of the court is, therefore, reversed and the cause is remanded. On remand, we instruct the trial court to specify whether it formally determined, as a matter of fact, that the father is voluntarily unemployed or underemployed. If the court finds that the father is voluntarily unemployed or underemployed, then it must impute income to him based on the factors outlined in Rule 32(B)(5). If the court imputes income to the father, then it may find him in contempt for nonpayment of his child-support obligation. However, the court must, upon finding the father in contempt, provide a means for the father to purge himself of contempt and a sanction in the event the father fails to purge himself of contempt. Finally, we instruct the trial court to correctly calculate the postjudgment interest on the child-support arrearage and to enter a judgment in favor of the mother for the total amount.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

MURDOCK, J., concurs in the result in part and dissents in part.

MURDOCK, Judge,

concurring in the result in part and dissenting in part.

I agree with the majority that T.L.D. was not required to specifically request an award of postjudgment interest in her complaint and that the trial court erred when it failed to award simple interest on C.G.’s past due child-support obligation. The issue of pleading and the issue of raising a claim and properly preserving it for appeal, however, are not necessarily the same. I therefore believe the majority is incorrect in its view that this court should overrule the nine cases it cites as standing for the proposition that a party must “properly request” postjudgment interest at the trial-court level. I reach this judgment after reviewing each of these nine cases, as well as other cases, and concluding that the above-quoted phrase is merely a manifestation, in the context of a claim for child support, of the more general rule that an appellate court will not hold a trial court in error based on an issue not raised below. See, e.g., Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992).

Just as our law requires in a proper case that a court award interest on a past-due child-support obligation, our law a fortiori requires in an appropriate case that a trial court award child support itself. Yet, even as to child support, itself, I know of no case in which a trial court’s judgment has been reversed because it failed to make an appropriate award when child support was not requested at the trial-court level. See Somers v. McCoy, 777 So.2d 141, 143 (Ala.Civ.App.2000) (rejecting a claim for post-minority child support on the ground that “[tjhis court may not consider an issue raised for the first time on appeal.... This court’s review is restricted to those arguments considered by the trial court.”); Davenport v. Hood, 814 So.2d 268, 270 n. 1 (Ala.Civ.App.2000), writ quashed, 814 So.2d 277 (Ala.2001). Similarly, it remains the responsibility of an aggrieved party to raise to the trial court the issue of post-judgment interest and give the trial court an opportunity to rule on that issue.

Further, I do not think it necessary for this court to reach the foregoing issue in the present case, and I would reverse the judgment of the trial court without doing so. T.L.D. requested in her complaint that the trial court “fix the current arrear-age and enter a judgment therefore [sic] ... and ... enter such other, further, and different relief as may be meet and proper.” The trial court indicated that interest had been put at issue when it acknowledged that interest was due on the child-support arrearage and that it had consulted documents provided by T.L.D. which reflected an interest calculation. This ease therefore appears to be no differently postured than the nine cases that the majority would overrule, each of which involved a request for interest either before or at trial or in a postjudgment motion.

In regard to that portion of the majority’s opinion pertaining to the trial court’s contempt determination, I first note that Rule 32(B)(5), Ala. R. Jud. Admin., does state, in pertinent part:

“If the court finds that either parent is voluntarily unemployed or underemployed, it shall estimate the income the parent would otherwise have and shall impute to that parent that income.”

(Emphasis added.) Rule 32, however, provides guidelines for the “establishment and modification” of future child-support payments. See Rule 32(A), Ala. R. Jud. Admin. It does not address the possible imputation of income for purposes of calculating past-due child-support obligations or arrearages, or, more specifically, for guiding trial courts in their consideration of contempt issues relating to past-due child-support obligations.

I have located no authority to support a rigid requirement that a trial court must impute income to a voluntarily unemployed or underemployed party for purposes of a contempt determination. Generally, determinations relating to whether a party should be held in civil contempt are committed to the “sound discretion” of the trial court to enable the trial court, as it sees fit, to protect its authority and dignity and to effectuate compliance with its orders and judgments. See Rule 70A(a)(2), Ala. R. Civ. P.; Fludd v. Gibbs, 817 So.2d 711 (Ala.Civ.App.2001); Stack v. Stack, 646 So.2d 51 (Ala.Civ.App.1994); Uhls v. Uhls, 551 So.2d 1065 (Ala.Civ.App.1989).

Also, while I agree with the majority that a contemnor must be provided with a means of purging himself of contempt, C.G. has not appealed; he has not asked us to hold the trial court in error for not providing him with a means of purging himself of contempt. Further, if a trial court has the discretion to determine whether to even hold a party in contempt, it is only logical that it has the discretion to take the lesser action of holding a party in contempt but abating the imposition of a penalty for that contempt. I am not prepared to hold that a trial court that determines a party is in contempt must ipso facto impose any particular sanctions for that contempt. As noted, the purpose of a civil contempt proceeding is for the court, as it sees fit, to protect its dignity and authority and to ensure compliance with its orders. Just as whether to hold a party in contempt is in a trial court’s sound discretion, it is within the trial court’s discretion to impose or to refuse to impose sanctions.

Having said the foregoing, I emphasize that in a given case a trial court might abuse its discretion by not finding a party in contempt or by not imposing a sanction based upon such a finding of contempt. This is particularly so where the purpose of the contempt proceeding is to coerce payment of obligations owed by one party to another. I am simply not persuaded at this juncture that this is such a case.

I am in agreement with the majority that, insofar as the trial court’s contempt determination is concerned, there is some confusion in the present case as to what the court intended. I therefore agree that this cause should be remanded for the trial court to clarify whether it intended to hold the father in contempt (and whether it intended to impose sanctions). I also agree that the trial court must modify its judgment to include simple interest on C.G.’s past-due child-support obligation. I cannot concur in the remainder of the majority’s instructions, however.

      . It appears that the trial court may have improperly used a compounded-interest formula. See Hollen v. Conley, 840 So.2d 921 (Ala.Civ.App.2002), and Campbell v. Campbell, 827 So.2d 111 (Ala.Civ.App.2002).

      .When T.L.D. began to question C.G. about his child-support obligations, the trial court stated, "Let's move on. I have the accounts record.” Thereafter, at the close of T.L.D.'s testimony, she offered her payment records into evidence; they were apparently admitted by the trial court. However, the record on appeal does not contain as an exhibit T.L.D.'s payment records. I note that the record contains what appears to be a payment history prepared by the T.L.D.'s counsel and that some of the dollar figures in that payment history correspond with the principal and interest figures the trial court mentioned when it was discussing C.G.'s child-support arrear-age and the interest that had allegedly accrued thereon.

      . I also note, however, that a court may deviate from the Rule 32 guidelines based upon appropriate written findings "that the application of the guidelines would be unjust or inappropriate” and that otherwise meet the criteria described in Rule 32(A), Ala. R. Jud. Admin.

      . The issue whether the trial court should have imputed income to C.G. for purposes of calculating his future child-support obligation is not before us. Also, the CS-42 form the trial court completed and the trial court’s judgment both reflect that the trial court did impute income to C.G. when it increased his monthly child-support obligation from $176 to $237.