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

text:
    Christina Lee Williamson HOLLON v. James Kendrick WILLIAMSON.
    2010417.
    Court of Civil Appeals of Alabama.
    Sept. 27, 2002.

      Stacy Lott Reed of Reed, Tew & Associates, L.L.C., Montgomery, for appellant.
    John W. Poti, Prattville, for appellee.
   THOMPSON, Judge.

Christina Lee Williamson Hollon (“the mother”) and James Kendrick Williamson (“the father”) were divorced by an August 16, 1994, judgment of the trial court. One child was born of the parties’ marriage. The divorce judgment incorporated a settlement agreement reached by the parties. Pursuant to the terms of the divorce judgment, the mother was awarded custody of the parties’ minor child, and the father was awarded a standard schedule of visitation. The trial court ordered the father to pay $400 per month in child support.

On August 2, 2001, the father filed a petition to modify custody and a petition seeking a pendente lite hearing regarding custody of the child. The mother answered and filed a motion for a more definite statement. The trial court granted the mother’s motion for a more definite statement. The mother filed a motion to dismiss. On September 20, 2001, the mother filed a counter-petition seeking to modify the father’s child-support obligation and visitation schedule. The trial court conducted a hearing on December 5, 2001. On December 6, 2001, the trial court entered an order in which it required the mother, who was then living in Louisiana, to return with the child to “the Montgomery area” within 30 days, and it reduced the father’s child support obligation to $133 per month. The trial court’s Decern-ber 6, 2001, judgment made no other substantive changes to the divorce judgment. The mother filed a postjudgment motion; the trial court denied that motion. The mother appealed.

Where a trial court receives ore tenus evidence, its judgment based on that evidence is entitled to a presumption of correctness on appeal and that judgment •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. 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).

The parties married on May 16, 1992. The one child born of the parties’ marriage was nine years old at the time of the hearing in this matter.

The father has a college degree in marketing and is an insurance representative. The father testified that he had lived in Marbury 20 years. The father testified that the mother had lived in or near Mar-bury since the parties divorced. The father stated that the mother moved to Louisiana in August 2001. According to the father, the mother informed him she was moving when she picked the child up from his visitation with the father on a Sunday late in July 2001. The father stated that mother’s current boyfriend lived in Louisiana and that he was aware that the child had stayed in Louisiana before August 2001.

The father testified that before the mother’s relocation to Louisiana, he visited with the child several times per week. The father testified that from August 2001 until the December 5, 2001, hearing in this matter, he had seen the child only seven times. The father remarried in 1999. The father testified that the paternal grandmother and the child’s stepmother provided after-school care for the child when the child lived in Alabama.

The father testified that he is concerned about the child’s being removed from Alabama and away from the father and his extended family. The father testified that he lived next door to the paternal grandparents and that he had a large extended family in and near Marbury. The father stated that the child is close to his extended family. The father testified that the mother was a good mother and that he would not seek custody of the child if the mother would return to Alabama.

The paternal grandmother testified that prior to August 2001, when the mother relocated to Louisiana, she visited with the child two to three times per week. The paternal grandmother testified that she and the mother had a good relationship and that the mother had a key to the paternal grandparents’ house. The paternal grandmother testified that she had seen the child on only one occasion from August 2001 until the December 5, 2001, hearing in this matter.

The mother testified that she had moved to Louisiana in June 2001 because she had visited Louisiana and discovered she liked Louisiana better than she liked Marbury. The mother also stated that she needed to move away from the father’s family because they questioned her about her actions and decisions.

The mother testified that she had been fired from her job in Alabama. The mother testified that her employer had told her that she had a particular Friday off, and that after she had left her place of employment, someone left a message on her answering machine stating that she had to report to work that day and if she did not, she would not have a job. The mother further testified that her employer telephoned her and told her that if she would come in and talk to him that he would reemploy her in her previous position. However, the mother testified that she chose to move to Louisiana instead. The mother testified that she has not worked since she and the child moved to Louisiana. The mother stated that she had applied for jobs in Louisiana, but at the time of the hearing in this matter, she remains unemployed.

The mother testified that she and the child lived in a house owned by her boyfriend and that her boyfriend and the maternal grandmother assisted her with buying food, clothing, shoes, and the child’s school books. According to the mother, the boyfriend did not live in the house with her and the child.

The mother testified that she had remarried and divorced since her 1994 divorce from the father; the record indicates that the mother’s divorce from her second husband was final in May 2001. The mother testified that she and her current boyfriend are not engaged, but that they have talked of getting married. The mother testified that she had no family in Louisiana. According to the mother, her family lives “all over.” The mother testified that she had family in Georgia and Tennessee. The record indicates that the maternal grandmother lives in Tennessee.

The mother testified that the father’s family visited with the child often when she lived in Alabama because it was convenient. The mother stated that she did not have to pay for child care when she lived in Alabama because the father’s family provided after-school care for the child. According to the mother, the child told her he wanted to move to Louisiana. The mother testified that the child was enrolled in school in Louisiana and that he enjoyed his new school.

The child testified that he and his father hunted, fished, camped, and rode mountain bikes together. The child testified that he would like to live close to the father and to the father’s extended family, but that he wanted to live with the mother.

On appeal, the mother asserts that the trial court abused its discretion in ordering her to move back to the Montgomery area. However, with regard to that issue in her brief on appeal, the mother cites several custody-modification cases and argues only that the father did not present sufficient evidence to justify a change of custody. Specifically, the mother asserts that the father presented insufficient evidence to meet his burden under Ex Parte McLendon, 455 So.2d 863 (Ala.1984), for modifying custody. The trial court’s December 6, 2001, order states

“1. That the former wife shall, within 30 days from the date of this order, move back to the Montgomery area where she has been promised a job.
“3. In the event the former wife fails to move back to the Montgomery area within the time frame as specified above, then, upon motion the court shall reopen this matter as it relates to custody.”

The trial court’s December 6, 2001, order did not modify custody of the child; it merely states that the trial court will reconsider its denial of the father’s petition if the mother chooses to remain in Louisiana. Pursuant to the trial court’s December 6, 2001, order, the child remains in the mother’s custody and the father’s original visitation schedule remains intact. In her brief on appeal, the mother focuses on whether the father met the McLendon standard in order to support a modification of custody. Although this court may or may not agree with the actions of the trial court, this court concludes that the mother’s argument as to that issue is premature.

The mother also asserts that the trial court erred in not imputing income to the father in its calculation of the father’s child-support obligation. Pursuant to Rule 32(B)(5), Ala. R. Jud. Admin., “[i]f the [trial] 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 determination of whether a parent paying child support is voluntarily underemployed or unemployed is discretionary with the trial court.” Mitchell v. Mitchell, 723 So.2d 1267, 1269 (Ala.Civ.App.1998) (citing Griggs v. Griggs, 638 So.2d 916 (Ala.Civ.App.1994)).

The amount of child support awarded in the parties’ August 16, 1994, divorce judgment was not in compliance with Rule 32, Ala. R. Jud. Admin.; however, that award was based on a settlement agreement entered into by the parties and incorporated into the divorce judgment. In her September 20, 2001, petition, the mother sought an award of child support in compliance with Rule 32, Ala. R. Jud. Admin. The record on appeal contains the father’s Child Support Income Statement/Affidavit form which shows that the father had a monthly gross income of $923. The mother did not argue before the trial court nor did she present any evidence at the December 5, 2001, hearing indicating that the father was voluntarily underemployed. The mother testified that she was unemployed at the time of the December 5, 2001, hearing. The mother also testified that her former employer stated that she could have resumed her employment, but that she chose to relocate instead. Further, there was no testimony regarding the father’s income at the December 5, 2001,

hearing in this matter. The appellant has an affirmative duty to demonstrate error on the part of the trial court; this court will not presume such error exists. Greer v. Greer, 624 So.2d 1076, 1077 (Ala.Civ.App.1993); see also Perkins v. Perkins, 465 So.2d 414 (Ala.Civ.App.1984). The mother failed to present any evidence to the trial court regarding the father’s income, and she did not argue to the trial court that it should impute income to the father. We conclude that the mother has not demonstrated that the trial court erred in not imputing income to the father for purposes of determining his child-support obligation. See Greer v. Greer, supra.

AFFIRMED.

PITTMAN, J., concurs.

CRAWLEY and MURDOCK, JJ., concur in the result.

YATES, P.J., dissents.

MURDOCK, Judge,

concurring in the result.

In Ex parte Monroe, 727 So.2d 104 (Ala.1999), our Supreme Court stated that ‘“[i]n domestic relations cases a minor child has an inalienable right to the maximum protection of the judiciary.’” 727 So.2d at 106 (quoting Ex parte D.W.W., 717 So.2d 793, 796 (Ala.1998)). It appears that the trial court was attempting to protect the child in this case.

Unlike the court in Ex parte Monroe, however, the trial court in the present case has not ruled on whether the father met his burden under Ex parte McLendon, 455 So.2d 863 (Ala.1984), so as to justify a custody modification. Under the trial court’s order, if the mother does not move back to Alabama within 30 days, the trial court will reopen the case and consider a further ruling on the father’s modification petition. I therefore agree with Presiding Judge Yates that the instant order is not a final judgment and is therefore not appeal-able; like her, I would treat this appeal as a petition for a writ of mandamus.

“A writ of mandamus is an extraordinary remedy, however, that should be granted only if the trial court clearly abused its discretion by acting in an arbitrary or capricious manner.” Ex parte Edwards, 727 So.2d 792, 794 (Ala.1998). The petitioner must demonstrate:

“ ‘(1) a clear legal right in the petition to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (8) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’ ”

Ex parte Edwards, 727 So.2d at 794 (quoting Ex parte Adams, 514 So.2d 845, 850 (Ala.1987)).

Based on the record as presented in this proceeding, I cannot conclude that the trial court has clearly abused its discretion or acted in an arbitrary and capricious manner.

In light of the foregoing, I concur in the result reached by the main opinion.

CRAWLEY, J„ concurs.

YATES, Presiding Judge,

dissenting.

This case involves a child-custody modification. In 1994, the parties were divorced. The divorce judgment incorporated a settlement agreement reached by the parties, which provided that the mother was awarded physical custody of the child and set a standard schedule of visitation for the father. The agreement further provided:

“The [father] shall have reasonable opportunity to visit with the child apart from the residence of the [mother], but shall give the [mother] at least 24 hours advance notice of each intended visit. In addition, the [father] shall be responsible for transporting the child to and from the [mother’s residence and shall bear the expenses thereof, UNLESS THE [MOTHER] SHALL MOVE OUTSIDE THE BORDERS OF ALABAMA, IN WHICH INSTANCE THE COST OF TRANSPORTATION SHALL BE EQUALLY DIVIDED BETWEEN THE PARTIES.”

On August 2, 2001, the father petitioned to modify custody. The mother counter-petitioned, seeking to modify the father’s child-support obligation and the visitation schedule. The trial court entered the following order:

“This Matter comes before the Court on the Petition to Modify Custody filed in behalf of the [Father] and the Answer and Counterclaim filed in behalf of the [Mother],
“After hearing the testimony and examining the documents the Court finds that it does have jurisdiction over the parties and the cause of action. The Court further finds that the [mother] has remarried, divorced, is unemployed, and is living in her boyfriend’s house and is financially dependent upon him in that he pays for all her needs and necessities.
“On the other hand, the [father], the grandparents, aunts and uncles live in the area where the child was raised until the [mother] elected to move to the state of Louisiana. The child, when living in Alabama, spent weekly time with the [father] and the grandparents in addition to his regular visitation.
“The Court is quite concerned about the living arrangements of the [mother] and her inability to care for the child financially.
“The [father] testified that if the [mother] moved back into the Marbury area he would dismiss his custody petition.
“The child, upon agreement of the parties and their attorneys, spoke with the Court concerning his desires, and his desires were to be back in the Montgomery area but to five with the [mother].
“Under these circumstances, it is hereby ordered as follows:
“1. That the [mother] shall, within thirty days from the date of this Order, move back to the Montgomery area where she has been promised a job.
“2. The Order as it relates to visitation shall continue in full force and effect.
“3. In the event the [mother] fails to move back to the Montgomery area within the time frame as specified above, then, upon Motion the Court shall reopen this matter as it relates to custody.
“4. The Court, having reviewed the Child Support Guidelines at the request of the [mother], finds that under the prior order there was a deviation of the Guidelines at the time of the divorce and the [father] is paying the sum of $400.00 per month in child support for one child. Beginning January 1, 2002, and continuing on the 1st day of each month thereafter, the [father] shall pay child support in amount of $133.00 per month.
“5. The [father] shall obtain an additional hospitalization card for the [mother] for coverage on the son.”

I would treat the mother’s appeal as a petition for a writ of mandamus. Unless otherwise provided by law, appeals lie only from final orders or judgments. Fowler v. Merkle, 564 So.2d 960 (Ala.Civ.App.1989), writ denied, 564 So.2d 962 (Ala.1990). Here, the mother’s continued custody of the child is conditioned upon her moving back to Alabama; if she does not the trial court will reopen the father’s modification petition. Therefore, the instant order is not appealable. However, this court may treat such an appeal as a petition for a writ of mandamus.

“[A] petition for a writ of mandamus is the proper method for seeking to have a trial court vacate an order that it had no power to enter. Great Atlantic & Pacific Tea Co. v. Sealy, 374 So.2d 877 (Ala.1979). A writ of mandamus is an extraordinary remedy, however, that should be granted only if the trial court clearly abused its discretion by acting in an arbitrary or capricious manner. Ex parte Rollins, 495 So.2d 636 (Ala.1986). The petitioner must demonstrate the following: ‘(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’ Ex parte Adams, 514 So.2d 845, 850 (Ala.1987).”

Ex parte Edwards, 727 So.2d 792, 794 (Ala.1998).

In Ex parte McLendon, 455 So.2d 863 (Ala.1984), the supreme court held that when a noncustodial parent petitions for a custody modification, he or she must' prove initially that a material change in circumstances has occurred since the last custody order, that a change in custody will materially promote the child’s welfare and best interests, and that the benefits of the proposed change will clearly outweigh the inherently disruptive effect caused by a change in custody. In the present case, the trial court essentially has not ruled on whether the father has met the burden of proof to modify custody. Instead, it entered a conditional order, leaving the father’s petition to modify subject to being reopened at a later date if the mother did not move back to Alabama. Cf. Ex parte Monroe, 727 So.2d 104 (Ala.1999)(although the mother had not yet moved out of state, supreme court upheld the trial court’s order granting the father custody if the mother moved out of state).

Custody awards are final and are generally intended to remain in effect until one of the parties succeeds in a petition requesting the court to modify its custody award. Ex parte J.P., 641 So.2d 276 (Ala. 1994). A change in residence of the custodial parent is but one factor to be considered in determining the outcome of a modification petition, and that factor alone does not necessarily justify a change in custody. Judah v. Gilmore, 804 So.2d 1092 (Ala.Civ.App.2000).

I note that at the time of the divorce, the parties clearly contemplated that the mother might move out of state. This is in direct contrast to those cases where the parties initially agreed to a territorial restriction and subsequently sought to modify it. Pointer v. Bell, 719 So.2d 222 (Ala.Civ.App.1998); Cohn v. Cohn, 658 So.2d 479 (Ala.Civ.App.1994).

A review of the record would not support a change of custody under McLendon. The father stated that the mother is a good mother and that if she would move back, he would not seek custody of the child.

Furthermore, although a trial court’s judgment based on ore tenus proceedings is entitled to a presumption of correctness if it is supported by the evidence, the order in the present case is not supported by the record and, therefore, is not entitled to such a presumption.

The trial court stated in its order that the mother had been promised a job if she returned to Alabama. There is no testimony in the record that the mother has been promised a job in Alabama when she returned. Instead, the mother testified that she had been promised a job in Louisiana before she moved there. However, the job was not available when she arrived in Louisiana. The mother testified that she was employed, before leaving Alabama, but that she lost her job when she was not available for a weekend shift. There was testimony indicating that at the time she lost her job, her former boss would possibly have given her the job back. Instead, the mother decided to move to Louisiana. However, there was no evidence admitted indicating that she had been promised a job upon her return to Montgomery.

The trial court stated that mother’s boyfriend provides for “all her needs and necessities.” The mother testified that she lives in a home owned by her boyfriend in Louisiana, but that he lives in another home with his parents. She stated that while she has been unemployed, both her boyfriend and her mother have helped her financially.

The trial court was concerned about the mother’s ability to support the child and, although she is unemployed, imputed an income of $824 to her, while at the same time, on its own initiative, it reduced the father’s child-support obligation from $400 to $133 per month. The record reflects that in 1994 when the parties divorced, the father was employed by an insurance company making $2,000 per month. The parties had agreed that the father would pay $400 per month in child support, a deviation from the $486 established by the guidelines. The father’s CS-41 form for 2001 indicates that he was employed by another insurance company making $993 per month. He testified that he had been in the same line of work for nine years. There was nothing in the record to indicate why the father’s income had decreased so substantially while he remained in the same line of work or whether he was voluntarily underemployed. The trial court stated in its order that the child wants to live in the Marbury area, but that the child wants to live with his mother. The trial court interviewed the child alone in chambers and that testimony is as follows:

“COURT: Hi, young man. First, I’m going to tell you that I am sorry you have to be in the middle of this....
“CHILD: (Nods head.)
“COURT: The other thing I want you to know is that both your mama and your daddy love you very, very much, you know that?
“CHILD: Hmhmm.
“COURT: Now, when you lived here and you would visit your dad here, would y’all go hunting?
“CHILD: (Nods head.)
“COURT: And he would take you fishing?
“CHILD: (Nods head.)
“COURT: And y’all would go camping?
“CHILD: (Nods head.)
“COURT: And would y’all ride mountain bikes together?
“CHILD: (Nods head.)
“COURT: And you did a lot of those things with your daddy and your grandmother and they would go with you when you did those things?
“CHILD: (Nods head.)
“COURT: And your mama and daddy told me that you play baseball and played All Stars, is that right?
“CHILD: (Nods head.)
“COURT: Okay. Now, ... the question come down to this here. You got a lot of relatives that live here. Would you like to move back to Alabama and be with all of your relatives?
“CHILD: I would like to but I want to live wherever my mama goes.
“COURT: If your mama moves back up here, you would like to move with her, is that what you’re saying?
“CHILD: Yes.
“COURT: You would like to have everybody pretty close so you could see them all, is that right?
“CHILD: Yes.
“COURT: Cool.
“CHILD: Because I would like to live wherever my mama fives.
“COURT: Well, I’ll tell you this. I will see what I can do about that. I heard you got a deer.
“CHILD: A seven point. Shot him in the back spine. It knocked one of his bones out of place.
“COURT: What kind of gun did you use?
“CHILD: A 410.
“COURT: You got a deer with a 410?
“CHILD: Yes.
“COURT: Did you have a (unintelligible) in it? Was it a (unintelligible) shell?
“CHILD: I don’t know.
“COURT: Well, it’s hard to kill a deer with a 410.
“CHILD: Right. It’s a little hole. Pawpaw was right there with me. He was on the hill. He didn’t even hear it. There’s a big old buck. Pawpaw looked down and got my gun and I shot him right there.
“COURT: Fantastic. I took my boy deer hunting for five years and never saw a buck. I was in a deer stand over one time and heard this shot. It wasn’t really quite daylight and I heard another shot.
“CHILD: He killed two four-point bucks.
“COURT: Unbelievable. Okay. Well,
“CHILD: The time he got that one, though, and all, the other bucks around him, he saw like eight does, one spike and two bucks. He shot the doe and the doe went straight to the ground. All the other deer ran. It was just two bucks and....
“COURT: Good gracious, Miss Agnes. You are a mighty fine boy. Now, you do good in school for me and don’t worry about this. I’m going to take care of it for you.”

The trial court did not ask the child about his living arrangements in Louisiana or how he liked living in Louisiana. Clearly, based on the questions asked, the child emphasized that he wanted to live wherever his mother lived. He did not express a desire to live near his father or his family without prompting by the trial court.

The present case is distinguishable from Ex parte Monroe, supra, wherein the trial court awarded the father custody in the event the mother relocated to Michigan. In Monroe, there was evidence that the child spent at least half of his time with his father and there was testimony from experts, counselors, and family members, that the child should stay close to his father and that a “sudden absence of contact with [him] could detrimentally affect him.” 727 So.2d at 105.

In the present case, the testimony as to how much time the father actually spent with the child was disputed. There was no testimony from experts or counselors indicating that the child would be detrimentally affected if he continued to live with his mother in Louisiana. The mother has never denied the father visitation and has ensured that the father has had his visitation every other weekend. Additionally, the father testified that the mother should retain custody if she agrees to move back to Montgomery. The mother has demonstrated that she recognizes the importance of the father-child relationship. It appears that the parents could work out a realistic schedule for continued visitation arrangements. Also, the record reflects that although the child would be attending a new school in Louisiana, he would have also been attending a new school in Alabama, and therefore would have incurred change in this area of his life regardless of the move.

In conclusion, the parties contemplated a move by the mother at the time of the divorce. The child would be attending a new school regardless of the move. The child’s testimony clearly reflects his preference to live with his mother. No evidence was presented indicating that the child was not being cared for by the mother or that it was in the child’s best interests to live in Alabama. Also, I would reverse the trial court’s modification of the father’s child-support award. The mother was unemployed, and the father did not seek a reduction. There was no testimony as to why the father’s income had decreased while he had worked in the same profession for nine years. The evidence in the record does not support a change in circumstances so as to warrant a reduction in the amount of child support owed. Therefore, I must dissent.

      . In her dissent, Presiding Judge Yates notes a number of concerns regarding the facts of this case and the testimony of the child. Without intending to imply any agreement or disagreement with any of the other concerns she expresses, I do note that the record contains no evidence tending to support the trial court’s statement that the mother has been offered a job in Alabama if she will now return to this state. In the event the mother does not return to Alabama and the trial court therefore does reopen this matter as it relates to custody, the evidence that has been introduced would not support such a finding.


source: Caselaw Access Project

author: CRAWLEY, Judge.

license: Public Domain

text:
    Rachel HOLCOMB v. GENERAL AVIATION TERMINAL, INC.
    2010434.
    Court of Civil Appeals of Alabama.
    Sept. 27, 2002.
    Bryan G. Duhé, Mobile, for appellant.
    Thomas M. O’Hara of McDowell Knight Roedder & Sledge, L.L.C., Mobile, for ap-pellee.
   CRAWLEY, Judge.

Rachel Holcomb (“the worker”) appeals from the trial court’s summary judgment for General Aviation Terminal, Inc. (“the company”). We affirm.

The worker was employed as a receptionist for the company and also performed several odd jobs such as delivery and cleaning. She suffered an on-the-job injury on August 9, 1999, for which she received workers’ compensation benefits. On April 25, 2000, after having surgery to repair a torn rotator cuff and having gone through rehabilitation, she was released from her doctor’s care to return to work with restrictions on the type of work she could perform. While the worker was away from work for treatment of her injury, the company hired a temporary employee to replace her. Upon the worker’s return on May 12, 2000, she was placed in a multipurpose room, which also served as an employee break room, at a desk where she could answer the telephones. On May 15, 2000, on her fourth day back to work, the worker resigned.

On May 24, 2000, the worker sued the company, alleging that it had constructively discharged her by making her job “humiliating and intolerable,” and that it had done so because she had filed a workers’ compensation claim. On June 30, 2000, the company filed an answer to the worker’s complaint. On September 14, 2001, the company filed a motion for a summary judgment, with a supporting brief and portions of the deposition testimony of the worker; Mark Doggett, her supervisor; and Lenda Sue Brown, the worker’s rehabilitation nurse, attached as exhibits. On December 4, 2001, the worker filed an opposition to the company’s motion for a summary judgment, with a supporting brief and portions of the deposition testimony of Brown; Doggett; Melba Franklin, the worker’s previous human-resources manager; and Johnny Peterson, the worker’s previous supervisor, and a copy of her resignation letter attached to the brief as exhibits. On December 20, 2001, the company filed a reply to the worker’s opposition, with portions of the deposition testimony of the worker and Doggett attached as exhibits. On January 15, 2002, the trial court entered a summary judgment for the company.

On January 23, 2002, the worker filed a notice of appeal to the supreme court, and this case was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala.Code 1975. On appeal, the worker argues that the trial court erred in entering a summary judgment for the company because, she says, in doing so it had impermissibly relied on her subjective opinion given in her deposition testimony that her work environment was not intolerable, rather than applying an objective-standard approach, pursuant to Haygood v. Wesfam Restaurants, Inc., 675 So.2d 1312 (Ala.Civ.App.1996), overruled on other grounds, Rothenberger v. Cast Products, Inc., 716 So.2d 1220 (Ala.Civ.App.1997).

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).

The worker testified in her deposition, relevant portions of which were attached as an exhibit in support of the company’s motion for a summary judgment, in pertinent part, as follows:

“Q. Now at some point in time Dr. Crotwell determined that you could return to your job at [the company] with certain restrictions, light duty restrictions?
“A. Correct.
“Q. And we’ve talked about those restrictions a little bit. In fact, page 67 of your former deposition, basically what the doctor said you could do is answer the telephone?
“A. Yes.
“Q. And one of the specific restrictions was no lifting anything over five pounds?
“A. Correct.
“Q. And you mentioned in your previous deposition also no typing?
“A. Correct.
“Q. Did you disagree at all with Dr. Crotwell that at the time that he did return you to work where you could answer the telephone, did you disagree or do you have any complaints that you couldn’t even do that? Do you feel like you were able to do that?
“A. I did not disagree with him. I told him what I did at work. He says but you’re not going to be doing that; you’re-going to do light duty, answering the phone. And he said you are not to pick up anything over five pounds.
“Q. And what I’m asking is, did you feel at that time that you could go back to work and answer the telephone?
“A. Yes, I did....
“Q. Now, when you returned to work you were being paid the same wage—
“A. Correct.
“Q. —as you had before your injury?
“A. Correct.
“Q. Tell me about any of your discussions with Mark Doggett or anyone else at [the company] about your return to work?
“A. I just returned to work. They put me — carried me back. He said, “We’re going to [sit] you back here.’ It was an area that we used for the kitchen....
“Q. Who was sitting at the reception desk that you had normally—
“A. It was the new girl.
“Q. Other than what you call the kitchen, were you aware of any other office or area in the budding where you could have worked?
“A. There was not another place.
“Q. Well, what about either with Mr. Doggett or any of the other management; did you tell them that I’m sitting back here, but the phone’s not ringing? “A. I mentioned that to him.
“Q. When did you mention that to him? “A. Probably about the third day.
“Q. And what did you tell him?
“A. I just told him that the phone was not ringing.
“Q. And what did he say?
“A. Well, that’s all we have for you right now.
“Q. And then the next day you come back to work you go to the same desk, same phone, and it doesn’t ring?
“A. No, sir.
“Q. How long did you stay that day?
“A. Their accountant came in and asked me to move; that he was going to be sitting there doing some work. And he said, ‘Oh, Ms. Rachel, are you visiting us today?’ I said, ‘No, sir, I’m back at work.’ And he said, ‘Doing what?’ I said answering this phone. He said, “Well, I’ve got to get over here and work.’ I said okay. So I moved.
“Q. What is it that you wanted; is it that you wanted to sit at your old reception desk and answer the phone there?
“A. That was what I was hired for was a receptionist and I was assuming— which I assumed wrong — that I would be assuming that same position when I returned.
“Q. Well, I understand that, but we’ve already, I think, talked about your restrictions when you returned. I mean, you were only able to answer the phone?
“A. That’s correct.
“Q. Now, Bobbie McDuffy, Ms. Raines, Mr. Bagett, did any of them say anything offensive to you during the 3/& day period after you returned to work?
“A. They were not there that much, just for a few seconds, and they were gone and just came in and said good morning, and that was it. But Bobbie was there all the time, but she was busy. She didn’t have time to talk.
“Q. So I take it then the answer to my question is that they didn’t say anything to you that you considered offensive during that 2?h day period?
“A. No, no.
“Q. Ms. Holcomb, do you feel like your situation at [the company] when you returned to work was intolerable?
“A. I can’t say that it was intolerable, and I won’t say it was intolerable. I will say that the atmosphere was different.
“Q. Do you feel like you had no other choice but to quit working?
“A. I felt like that I was not wanted; that that was the reason that they put me back there in that corner.
“Q. But do you feel like you could have continued to work for at least a little longer than 3]é days?
“A. Yes, I do. I feel like I could still be working right now.”

The worker argues that the trial court erred by considering her subjective opinion that her work environment was not intolerable in entering a summary judgment for the company. However, the trial court set out no findings in its order from which we can determine that that was the reasoning it used to support its order. In any event, the worker contends that to rely on her subjective opinion is contrary to Haygood, supra.

In Haygood, this court stated:

“In Irons v. Service Merchandise Co., 611 So.2d 294, 295 (Ala.1992), our supreme court defined ‘constructive discharge’ as follows:
“ ‘ “[I]f the employer deliberately makes an employee’s working conditions so intolerable that the employee is forced into an involuntary resignation, then the employer has [brought about] a constructive discharge and is as hable for any illegal conduct involved therein as if it had formally discharged the aggrieved employee.” ’
“(Quoting Jurgens v. E.E.O.C., 903 F.2d 386, 390 (5th Cir.1990)). That definition follows the objective standard utilized by the federal courts. See, e.g., Boze v. Branstetter, 912 F.2d 801 (5th Cir.1990); Jett v. Dallas Indep. Sch. Dist., 798 F.2d 748 (5th Cir.1986), aff'd in part and remanded in part on other grounds, 491 U.S. 701, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989). Thus, the employee’s subjective perceptions do not establish a constructive discharge. Bristow v. Daily Press, Inc., 770 F.2d 1251 (4th Cir.1985), cert. denied, 475 U.S. 1082, 106 S.Ct. 1461, 89 L.Ed.2d 718 (1986). In Irons, our supreme court affirmed a summary judgment for the employer, even though the claimant’s affidavit in opposition to the summary judgment motion stated that her employer had criticized her work performance because of her claim for workers’ compensation benefits. Her statements were held to be conclusory and based upon speculation that, as a matter of law, did not establish a constructive discharge.
“Moreover, the federal courts have held that unreasonable sensitivity to the working environment, Brooms v. Regal Tube Co., 881 F.2d 412 (7th Cir.1989), jumping to conclusions, Garner v. Wal-Mart Stores, Inc., 807 F.2d 1536 (11th Cir.1987), and overreaction to business decisions, Pena v. Brattleboro Retreat, 702 F.2d 322 (2d Cir.1983), will not support a claim of constructive discharge. Haygood’s belief that someone was threatening her, thus making her afraid, and her reaction to her co-employees’ comments that she was being fired, when she knew that they were joking, were unreasonable on her part and were insufficient to be considered a constructive discharge. Proof of mere difficult or unpleasant working conditions does not establish a constructive discharge. Stetson v. NYNEX Serv. Co., 995 F.2d 355 (2d Cir.1993).”

675 So.2d at 1314-15.

The general prohibition against relying on an employee’s subjective opinion guards against judgments based on an employee’s unreasonable sensitivity, an employee’s jumping to conclusions, or an employee’s overreaction to business decisions. Hay-good, supra. However, under these circumstances, when the employee’s subjective opinion is that her work environment was not intolerable, those possible reactions are not present and the employer is entitled to a summary judgment. The trial court’s judgment is due to be affirmed.

AFFIRMED.

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

      1. McDuffy, Raines, and Bagett were employees of the company.


text:
    Sabrina A. WOODARD, as administratrix of the Estate of Larry Jason Funderburk, deceased v. Larry Joe FUNDERBURK and Gina Funderburk. Larry Joe Funderburk and Gina Funderburk v. Sabrina A. Woodard, as administratrix of the estate of Larry Jason Funderburk, deceased.
    2010451.
    Court of Civil Appeals of Alabama.
    Sept. 27, 2002.

      Ronald H. Strawbridge, Sr., of Straw-bridge, Strawbridge & Strawbridge, L.L.C., Vernon, for appellanVcross-appel-lee Sabrina A. Woodard, as administratrix of the estate of Larry Jason Funderburk, deceased.
    Clatus Junkin and Charles E. Harrison of Junkin & Harrison, Fayette, for appel-lees/cross-appellants Larry Joe Funder-burk and Gina Funderburk.
   CRAWLEY, Judge.

Sabrina Woodard appeals from a judgment refusing to set aside a conveyance of real property by Larry Funderburk to his wife Gina Funderburk. Larry and Gina cross-appeal from a judgment imposing a hen on the real estate in favor of Sabrina. We affirm as to the appeal and reverse as to the cross-appeal.

In 1994, Larry Funderburk negotiated the purchase of a house and eight acres of land from Marvin Ridgeway for $76,000. On February 1, 1994, Ridgeway and his wife executed a deed conveying the property to Jason Funderburk, Larry’s son, who was then 19 or 20 years old. On the same day, Jason executed a note for $60,000 to the Ridgeways secured by a mortgage on the property, a will devising the real estate to Larry, and a power of attorney in favor of Larry.

It is undisputed that Larry had title to the property put in Jason’s name because Larry “had an ongoing battle with the Mississippi State Tax Commission and [the Commission] had recovered a judgment” against Larry. It is also undisputed that Larry made the initial down payment on the purchase price as well as all subsequent payments on the note. The note has now been paid off. Larry has resided on the property since 1994; Jason never resided there.

In 1996, Jason was adjudged to be the father of Sabrina Woodard’s child and was ordered to pay child support. In 1997, the Colbert Circuit Court entered a judgment for Sabrina on her claim against Jason for unpaid child support in the amount of $10,746.88 plus interest and costs. In 1998, Larry, as attorney-in-fact for Jason under a power of attorney, executed a deed to the property to Larry’s wife Gina. In May 1999, Jason died, and Sabrina was appointed as the administratrix of his estate. In June 1999, Sabrina recorded in Lamar County the judgment against Jason for past-due child support and filed a claim against the estate. Sabrina then brought the instant action, seeking to set aside the 1998 conveyance to Gina, by Larry, pursuant to the power of attorney from Jason.

Following a bench trial, the circuit court denied Sabrina’s request to set aside the conveyance. The court, however, entered a judgment imposing a lien on the real estate in the amount of the judgment against Jason for past-due child support plus interest and costs, then totaling $18,395.20. Sabrina appealed to the Alabama Supreme Court; Larry and Gina cross-appealed. The supreme court transferred the appeals to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

I. Fraudulent Conveyance

Sabrina argued in the trial court, and now maintains on appeal, that the 1998 deed to Gina was due to be set aside on two grounds: (1) that it was a fraudulent conveyance to avoid the claims of creditors, and (2) that it exceeded the authority granted Larry by the power of attorney and represented a breach of Larry’s fiduciary duties to Jason under the power of attorney. Larry claims that he has had title to the property since 1994, by virtue of a resulting trust.

All parties agree that in 1994 Larry arranged for the real estate to be titled in Jason’s name, that Larry prevailed on Jason to devise the property to him by will, and that Larry caused Jason to execute a power of attorney in his favor, solely to avoid the claims of Larry’s creditor, the Mississippi State Tax Commission. As to that creditor, the 1994 conveyance from the Ridgeways to Jason was clearly fraudulent. However,

“[fraudulent conveyances may be attacked only by a party who is injured or damaged by the conveyance, and a stranger to the transaction who is neither a creditor [n]or a purchaser or otherwise affected has no standing to maintain the action.”

Jesse P. Evans, Alabama Property Rights and Remedies § 81.7(a) at 543 (2d ed.1998). Sabrina was not injured by the 1994 conveyance to Jason, and she is not seeking to set aside that conveyance. In fact, Sabrina’s claims hinge upon the validity of the 1994 conveyance. She argues that Larry’s fraud on one creditor, effected by the 1994 conveyance to Jason, infected the 1998 conveyance to Gina and established Larry’s fraud with respect to another creditor — Sabrina. She cites no authority for that argument, and we have found none. There are two problems with Sabrina’s argument.

First, each conveyance must be viewed independently, because what might be considered “a fraudulent conveyance is valid as to all the world except creditors of the grantor.” Bank of Lexington v. Jones, 456 So.2d 784, 785 (Ala.1984). As to Sabrina (and anyone other than the Mississippi State Tax Commission), the 1994 conveyance was valid. Second, even a liberal construction of the fraudulent-transfer statute requires some demonstration that “the debtor” has put his property beyond the reach of a creditor. See Folmar & Assocs. LLP v. Holberg, 776 So.2d 112 (Ala.2000). As to the 1998 conveyance, Larry, the transferor/attorney-in-fact for Jason, was not Sabrina’s “debtor” within the meaning of the Alabama Uniform Fraudulent Transfer Act (“AUFTA”). Sabrina’s “debtor” was Jason, and Jason did not put the property beyond the reach of Sabrina; Larry did. See Folmar & Assocs. LLP v. Holberg, supra.

In Folmar & Associates LLP v. Holberg, a judgment divorcing Pamela Hol-berg and William Cagle required Cagle to make monthly alimony payments of $4,000 to Holberg and prohibited Cagle from allowing his real property or interest in a partnership to pass out of his probate estate. Cagle was a partner in Folmar & Associates and had taken cash advances against his ownership interest in the partnership. Cagle later remarried, suffered a debilitating stroke, and incurred considerable medical expenses. He executed a power of attorney to his new wife Regina, who used the power to transfer Cagle’s assets into her name. The partnership began to advance Cagle $20,000 per month to cover his medical expenses. After consultation with Cagle’s wife and financial advisor, the partnership reduced its advances to $11,000 per month. After the reduction, Cagle discontinued his alimony payments to Holberg. Cagle died and his estate was declared insolvent. Holberg sued Cagle’s wife Regina, the partnership, and the financial advisor, alleging, among other things, a conspiracy to fraudulently transfer Cagle’s assets. The trial court denied the defendants’ motions for a summary judgment, and the Alabama Supreme Court granted them permission to appeal pursuant to Rule 5, Ala. R.App. P.

The court reversed, concluding that the defendants were entitled to a summary judgment because the AUFTA applies only to conveyances “made by a debtor,” none of the defendants was Holberg’s debtor, and Holberg’s claim was against Cagle’s estate. The court stated:

“Holberg argues that this Court should give the fraudulent-transfer statute a liberal construction and apply it to her claims against the defendants....
“... Even a liberal construction of the statute requires some demonstration that the debtor has put his property beyond the reach of a creditor.
“Holberg has cited no cases in which someone other than the debtor has been held liable under the fraudulent-transfer statute. Holberg simply argues that her claims should be valid under the statute because, she argues, Folmar [one of Ca-gle’s partners] was fraudulently transferring Cagle’s assets to Regina; Regina was acting on behalf of Cagle when she used the power of attorney to transfer his assets into her name; and [the financial advisor] was ‘concocting schemes for Regina to fraudulently put Cagle’s assets into her name.’ However, Holberg’s claims are missing one essential element for a cause of action pursuant to the Alabama Uniform Fraudulent Transfer Act: The transfer of property by the debtor.
“We have found no case in which the provisions of the Alabama Uniform Fraudulent Transfer Act, § 8-9A-1 to -12, have been extended to apply to transferors other than the debtor. Hol-berg argues that the defendants were in control of the debtor’s assets and, therefore, should be held hable.... Even if we accepted Holberg’s argument that Folmar and [the financial advisor] engaged in a conspiracy to defraud her, the Alabama Uniform Fraudulent Transfer Act, by its plain language, does not apply to claims against third-party transferors. Holberg’s claim under that Act should have been asserted against the debtor (Cagle) or his estate. While there may be valid policy arguments for extending the Act to apply to transferors who are in control of the debtor’s assets, ‘it is not for the Judiciary to impose its view on the Legislature.’ Ex parte T.B., 698 So.2d 127,130 (AIa.1997).”

Folmar & Assocs. LLP v. Holberg, 776 So.2d at 117-18 (first emphasis original; remaining emphasis added).

We conclude that, as to Sabrina, the 1994 conveyance was not a fraudulent transfer and, as to the 1998 conveyance, Larry, the transferor, was not Sabrina’s debtor.

II. Resulting Trust

Larry claims that a resulting trust in his favor arose from the 1994 conveyance to Jason. Sabrina argues that Larry failed to plead a resulting trust and, furthermore, that the issue was not tried by the express or implied consent of the parties. We conclude that the issue was tried by the implied consent of the parties.

On June 5, 2001, Larry filed an amended answer in the Fayette Circuit Court, alleging that a resulting trust was created by the 1994 conveyance of the property to Jason. On June 6, the case was tried in Vernon. On June 7, Sabrina’s counsel received the amended answer, which had been postmarked “June 6.” Rule 5(b), Ala. R. Civ. P., provides that service by mail is complete upon mailing. Thus, when the case was tried, Sabrina’s counsel had been served with Larry’s amended pleading. At trial, Sabrina’s counsel objected to the introduction of Ridgeway’s deposition and to the introduction of a record reflecting Larry’s payment on the note for the property purchased from the Ridgeways and titled in Jason’s name. Sabrina’s counsel specifically stated, “Again, I renew my objection about any resulting trust. I mean, I’m not trying this by implication.” Earlier in the trial, however, Sabrina’s counsel had called Larry as a hostile witness and questioned him about the fact that he had provided the sole consideration for the property purchased from the Ridgeways. Sabrina’s counsel failed to object or move to strike when Larry testified that he had paid for the property. Under the circumstances, we hold that Sabrina waived any objection to trying the issue of a resulting trust. See Associates Fin. Servs. Co. of Alabama v. Barbour, 592 So.2d 191 (Ala.1991).

“A resulting trust arises where a person makes or causes to be made a disposition of property under circumstances which raise an inference that he does not intend that the person taking or holding the property should have the beneficial interest in the property.”

5 William F. Fratcher & Austin W. Scott, The Law of Trusts, § 404.1 at 6 (4th ed.1989). A purchase-money resulting trust is implied in law when one person pays for the purchase of land and title is taken in the name of another. See, e.g., Lauderdale v. Peace Baptist Church, 246 Ala. 178, 180, 19 So.2d 538, 539 (1944). See generally George G. Bogert and George T. Bogert, The Law of Trusts and Trustees § 454 (rev.2d ed.1991); Fratcher & Scott, The Law of Trusts, § 440.

“The principle has its foundation in the natural presumption that one who supplies the purchase money intends the purchase to be for his own benefit and not for another, and when the conveyance is taken in the name of another the presumption usually arises that the grantee is holding the land in trust for the purchaser.”

Rodgers v. Thornton, 254 Ala. 66, 68, 46 So.2d 809, 810 (1950).

“This resulting trust depends for its existence on the actual intent of the creator, expressed in acts other than writing or the spoken word. The conduct of the payor with reference to the price and deed lead the court to infer an intent to have a trust for himself. The theory of enforcement is that of carrying out the intent of the settlor, just as truly as if he had reduced his trust to writing and inserted it in the deed. Resulting trusts are ‘intent enforcing’ just as much as are the usual express trusts. They bear little or no relationship to constructive trusts, which do not arise out of intent but depend for their existence on the wrongful conduct of the defendant which induces a court to adjudge him a trustee.”

Bogert, § 454 at 249. The evidence was uncontested that Larry’s intent in arranging the 1994 conveyance, along with the will and the power of attorney executed by Jason, was to maintain beneficial ownership of the property for himself. Jason was there, as the lawyer who prepared the deed testified, merely to do Larry’s bidding, and Larry intended to live on the property and to treat it as his own.

The resulting-trust theory would create a beneficial interest in Larry at the time of the conveyance in 1994. “The purchase-money beneficiary acquires at once a vested interest.” Bogert, § 454 at 250.

“The resulting trust of the purchase-money type arises at the time of the delivery of the deed or other instrument of conveyance passing title to one other than the payor. The trust is not dependent on a decree of court for its establishment. The court may later recognize it and enforce it but equity treats it as having been in existence from the time of the conveyance.”

Bogert, § 454 at 259 (emphasis in original). See also Shirley v. McNeal, 274 Ala. 82, 145 So.2d 415 (1962).

In the absence of an intent to defraud the Mississippi State Tax Commission, Larry would normally have a resulting trust implied for his benefit from the 1994 conveyance. A different rule is applied, however, because that conveyance was an attempt to defeat Larry’s creditor.

“If the payor had the title run to another for the reason that he (the payor) desired to defeat, delay, or hinder his creditors, the case will be judged in the same way as an express trust for fraudulent purposes. Thus, if A conveyed to B in trust for A with the purpose of defrauding A’s creditors, A cannot enforce the trust for himself ordinarily, but his creditors can attack the transfer and get the benefit of the property. And so, if A pays for land and has it conveyed by absolute deed to B, with the intent of evading A’s creditors, the court will render A no aid in securing the enforcement of the resulting trust which would normally be implied for his benefit, but the creditors of A may take his equitable interest by resorting to the procedure required in such an instance in the particular jurisdiction.
“Some courts state that ‘no trust results’ to the fraudulent payor of the consideration. It would seem more accurate to hold that a trust results, but that the beneficiary of it will not receive aid from the court in the enforcement of the trust because of his unconscionable conduct.”

Bogert, § 463 at 388-91 (emphasis added). Although Larry may have been the beneficiary of a resulting trust in 1994, the trial court was correct in holding that he could receive no aid in enforcing his beneficial interest because of his intent to defraud ‘the Mississippi State Tax Commission. Moreover, had Sabrina attempted to enforce her 1997 judgment against Jason by levying on the property before it was transferred to Gina in 1998, Sabrina, too, would have been denied relief.

“The creditors of the resulting trustee [here, Jason] can obtain no interest in the property in question by attaching it for his debts.... The creditors of the payor [here, Larry], on the other hand, can proceed against the property on the theory that their debtor is its equitable owner.”

Bogert, § 454 at 259.

Sabrina did not, however, attempt to obtain an interest in the property until after Larry, as attorney-in-fact for Jason, had transferred the property to Gina in 1998. Sabrina’s attempt to obtain an interest in the property after 1998 is foreclosed by the holding of the supreme court in Folmar & Associates LLP v. Holberg, supra: that the fraudulent-transfer statute does not apply to a third-party transfer- or — even one who is in control of the debt- or’s assets by virtue of a power of attorney — because the transferor is not the debtor.

III. Power of Attorney

In view of the holding in Folmar & Associates LLP v. Holberg, we need not decide whether, by conveying the property to Gina, Larry exceeded the authority granted him under the power of attorney from Jason because the result for Sabrina would be the same irrespective of our decision on the issue. If Larry did exceed his authority, and the conveyance to Gina was thereby rendered invalid, the property would have been Jason’s during his lifetime and then become an asset of Jason’s estate. Sabrina did not, however, sue Jason’s estate. Cf. Folmar & Assocs. LLP v. Holberg, 776 So.2d at 118 (“Holberg’s claim ... should have been asserted against the debtor (Cagle) or his estate”). If Larry did not exceed his authority, and the conveyance to Gina was valid, Sabrina would have no remedy for the alleged fraudulent transfer against Larry because Larry was not her “debtor.”

IV. Summary

We conclude that, as to Sabrina, the 1994 conveyance' was not a fraudulent transfer. We also conclude that, as to the 1998 conveyance, Larry was not Sabrina’s “debtor.” From those conclusions, it necessarily follows that the trial court had no authority to impose a lien on the property. We hold that it is unnecessary to decide the issue regarding the scope and appropriate exercise of the power of attorney given to Larry. The judgment from which Sabrina appeals is affirmed; the judgment from which Larry and Gina cross-appeal is reversed.

APPEAL — AFFIRMED.

CROSS-APPEAL — REVERSED.

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