author: BARNES, J., GRIFFIS, J.,

text:
    Lisa Godin ROMANS, Appellant v. William Ryan FULGHAM, Appellee.
    No. 2005-CA-00873-COA.
    Court of Appeals of Mississippi.
    Oct. 10, 2006.

      Merrill K. Nordstrom, attorney for appellant.
    Carrie A. Jourdan, attorney for appellee.
   BARNES, J.,

for the Court.

¶ 1. In May of 1997, William Ryan Fulg-ham was adjudicated the natural father of A.F., a child born out of wedlock to Lisa Godin Romans on November 28, 1996. The paternity judgment, issued by the Chancery Court of Lafayette County, ordered Ryan to pay to Lisa $100 per month in child support, but was silent as to custody. From the time of her birth until the outcome of the custody proceeding at issue in this ease, A.F. lived primarily with her mother, though Ryan was allowed reasonable visitation. In September 2004, Ryan filed a petition in the Chancery Court of Lafayette County seeking primary physical custody of A.F. After a bench trial, the chancellor awarded Ryan primary physical custody of A.F., and awarded joint legal custody to both parents. Lisa changed counsel shortly after the chancellor’s bench ruling, but before written judgment was entered. Her new counsel then argued the paternity order should be considered an initial custody determination. Notably, at no time during the hearing or closing argument did Lisa’s original counsel argue that the Albright factors should not be used. On appeal, Lisa claims that the chancellor erred in treating the dispute as an initial custody determination, rather than as a custody modification proceeding; in the alternative, she claims that the chancellor erred in his application of the Albright factors. Finding that the chancellor appropriately treated the dispute as an initial custody determination, and that the chancellor’s ruling was supported by substantial, credible evidence, we affirm the ruling of the chancery court.

ISSUES AND ANALYSIS

I. WHETHER THE CHANCELLOR ERRED IN TREATING THE DISPUTE AS AN INITIAL CUSTODY DETERMINATION.

II. WHETHER THE CHANCELLOR ERRED IN APPLYING THE ALBRIGHT FACTORS.

¶ 2. “In child custody matters, review by this Court is ‘quite limited in that the Chancellor must be manifestly wrong, clearly erroneous, or apply an erroneous legal standard in order for this Court to reverse.’” In re Custody of M.A.G., 859 So.2d 1001, 1004(¶ 8) (Miss.2003) (quoting M.C.M.J. v. C.E.J., 715 So.2d 774, 776(¶ 10) (Miss.1998)). Where a chancellor has applied the correct legal standard and made findings of fact which are supported by substantial evidence, this Court will not reverse that decision. Id.

¶ 3. In original custody determinations, the “polestar consideration” is the best interest and the welfare of a minor child. See, e.g., Brekeen v. Brekeen, 880 So.2d 280, 283(¶ 5) (Miss.2004); Carr v. Carr, 480 So.2d 1120, 1123 (Miss.1985). Factors to be considered in ascertaining a minor child’s best interests include (1) age, health and sex of the child; (2) a determination of the parent that has had the continuity of care prior to the separation; (3) who has the best parenting skills and who has the willingness and capacity to provide primary child care; (4) the employment of the parent and responsibilities of that employment; (5) physical and mental health and age of the parents; (6) emotional ties of parent and child; (7) moral fitness of the parents; (8) the home, school and community record of the child; (9) the preference of the child at the age sufficient to express a preference by law; and (10) stability of the home environment and employment of each parent and other factors relevant to the parent-child relationship. Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983).

¶ 4. While a chancellor must take the Albright factors into consideration in a custody modification proceeding as well, the movant carries a heavier burden in a modification proceeding. In order to prevail in such a dispute, the complaining parent must show “that an application of the Albright factors reveals that there has been a material change in those circumstances which has an adverse effect on the child, and a modification of custody would be in the child’s best interest, considering the totality of the circumstances.” Jones v. Jones, 878 So.2d 1061, 1065(¶ 11) (Miss.Ct.App.2004). In Law v. Page, 618 So.2d 96 (Miss.1993), the Mississippi Supreme Court stated that the appropriate legal standard to apply in custody actions dealing with an illegitimate child, when there has been no prior custody determination, is that found in divorce proceedings, which is the best interest of the child considering the Albright factors. Id. at 101. Our Court has followed this custody standard in several instances. See C.W.L. v. R.A, 919 So.2d 267, 271(¶ 10) (Miss.Ct.App.2005); S.B. v. L.W., 793 So.2d 656 (Miss.Ct.App.2001). In S.B. we held that when a father petitioned for paternity and custody at the same time, it was deemed an initial custody determination, because custody of the child had not been previously determined by the judiciary. S.B., 793 So.2d at 658(¶ 7). If custody had been determined previously, the proceedings would have been considered a modification of custody and the well-settled “material change in circumstances” standard would apply. C.W.L., 919 So.2d at 271 (¶ 10) (citing Law, 618 So.2d at 101).

¶ 5. In our case, claiming that an initial custody determination was made as part of the 1997 judgment finding Ryan to be the natural father of A.F., Lisa argues that this matter should have been treated as a custody modification proceeding rather than an initial determination of custody. While Lisa concedes that the paternity judgment did not explicitly award her primary physical custody of A.F., she argues that, by ordering Ryan to pay her $100 per month in child support, the chancery court implicitly awarded her primary physical custody of A.F. We do not find this argument persuasive. As an initial matter, we note that Lisa was not a party to the original paternity action. Rather, the action was initiated' by the Mississippi Department of Human Services pursuant to its statutory authority to commence paternity actions. See Miss.Code Ann. § 43-19 — 31(b) (Rev.2004). The Department of Human Services’s enabling act contains no language even authorizing it to initiate custody proceedings. Furthermore, the order not only failed to award Lisa custody; it never mentioned “custody” or referred to a “custodial parent.”

¶ 6. While the Mississippi Supreme Court has noted that custody issues are routinely decided in paternity actions, it has also recognized that “a paternity action is not the most convenient or appropriate forum for determining the best interests of the child where custody actions are arranged to effectively and exhaustively address the issue.” Griffith v. Pell, 881 So.2d 184, 187-88(¶ 12) (Miss.2004). Nothing in the record suggests that matters of custody were ever considered as part of the paternity proceedings, and Lisa has not provided this court with a transcript of the paternity hearing. Therefore, even were this Court to accept Lisa’s theory that the paternity judgment implicitly awarded her primary physical custody of A.F., we see nothing in the record before us indicating that the Albright factors were employed by the court during the paternity proceeding. Looking to these facts, we find that the chancellor properly categorized the custody proceeding as an initial determination, rather than as a modification proceeding.

¶ 7. We decline to find error in the trial court and adopt an argument that was not properly presented below. The contention that the paternity judgment was an initial custody determination was not raised at the chancery court level until after the chancellor had issued his bench opinion. In fact, Lisa’s original counsel, during his closing argument, merely urged the chancellor to study the totality of the Albright factors in reaching his decision. In keeping with the holdings of Law v. Page, C.W.L. v. R.A., and S.B. v. L.W., the chancery court denied the motion to reconsider, thereby confirming the chancellor’s decision that the issue should be treated as an initial determination, rather than a modification of custody. The dissent would have us distinguish the instant case from these cases on the basis that Ryan, the noncustodial parent, did not file his petition for custody in a timely manner. We find nothing in Law, C.W.L., or S.B. which would allow us to make this distinction; there is no indication that the timing of the custody proceeding was a dispositive factor in these decisions. Moreover, the dissent fails to articulate exactly how much time must pass, after the birth of the child, or an order of support, before a custody petition would be considered untimely. Finally, in neither Lisa’s motion to reconsider the bench opinion, nor either party’s brief to this Court, is the argument made that Ryan has waived his entitlement to an Albright analysis by virtue of his delay in bringing the custody proceeding. Thus, we find this case is not an appropriate vehicle to alter the law in this area. We maintain the appropriate standard is one of an initial custody proceeding utilizing an Albright analysis in order to determine the best interest of the child.

¶ 8. In reaching his decision to award primary physical custody of A.F. to Ryan, the chancellor made extensive findings on the record with regard to each of the Albright factors. In summary, the chancellor found the following:

(1) Age, health and sex of the child

¶ 9. The chancellor found that this factor weighed evenly for Lisa and Ryan, as A.F. was in good health, and not of tender years.

(2) A determination of the parent that has had the continuity of care of A.F.

¶ 10. The chancellor found this factor to weigh in favor of Lisa, as she had provided primary care for A.F. since her birth.

(3) Who has the best parenting skills and which has the willingness and capacity to provide primary child care

¶ 11. The chancellor found Ryan to have the better parenting skills, though he noted that the decision was a “close call.” The chancellor cited testimony showing that Ryan had taken an active role in assisting A.F. with her school work, had done more to promote good health and hygiene on A.F.’s part, spent “one-on-one” time with her, and involved the child in church. In regard to willingness and capacity to care, the chancellor found that Lisa and Ryan were equally willing to care for A.F. However, the chancellor found that Ryan had a slight edge as far as his capacity to care for A.F. was concerned.

(If) The employment of the parent and responsibilities of that employment

¶ 12. The chancellor found that this factor weighed in favor of Ryan. The chancellor expressed concern at Lisa’s unstable employment history, and noted that Ryan had held a position in a family-owned business for most of his life.

(5) Physical and mental health and age of the parents

¶ 13. The chancellor found that this factor weighed evenly for Lisa and Ryan, as they were of similar age and were both in good health.

(6) Emotional ties of parent and child

¶ 14. The chancellor found this factor to weigh in favor of Ryan, citing testimony that A.F. was a “daddy’s girl,” that she would cry when leaving Ryan’s house to return to her mother’s house, and that Ryan and A.F. engaged in many activities together.

(7) Moral fitness of the parents

¶ 15. The chancellor found this factor to weigh in favor of Ryan, pointing to the fact that Lisa had given birth to three children out of wedlock, all with different fathers. The chancellor also noted testimony that Ryan had appeared to have learned from his past mistakes and had turned his life around significantly.

(8) The home, school and community record of the child

¶ 16. The chancellor found that this factor weighed in favor of Ryan as well. In support of this finding, the chancellor noted that A.F. had struggled with her studies while in Lisa’s care, and that A.F.’s grades improved dramatically once Ryan began to actively involve himself in her academic affairs.

(9) The preference of the child at the age sufficient to express a preference by law

¶ 17. The chancellor found this factor inapplicable since A.F. was not of age to express a preference.

(10) Stability of home environment and employment of each parent and other factors relevant to the parent-child relationship

¶ 18. The chancellor found this factor to weigh in Ryan’s favor, pointing to the fact that Lisa had moved a great number of times since A.F.’s birth, that Ryan’s wife had become a “stay-at-home mom” able to look after A.F. during the day, and that Ryan had a large number of family members in the immediate vicinity of his home.

¶ 19. It is clear from the record that the chancellor thoroughly considered all of the Albright factors in making his determination that it was in A.F.’s best interest to be in the primary physical custody of Ryan. Lisa claims that the chancellor erred in ruling in favor of Ryan as to several of the factors; however, we are not at liberty to reverse a chancellor’s ruling as to child custody matters unless we find that ruling to be clearly erroneous. See In re Custody of M.A.G., 859 So.2d at 1004(¶ 8). We find that the chancellor’s decision in this case is supported by substantial, credible evidence; accordingly, we must affirm the ruling of the chancery court. Lisa’s argument is without merit.

¶ 20. THE JUDGMENT OF THE CHANCERY COURT OF LAFAYETTE COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., IRVING AND ISHEE, JJ., CONCUR. GRIFFIS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY SOUTHWICK AND CHANDLER, JJ. ROBERTS, J., NOT PARTICIPATING.

GRIFFIS, J.,

Dissenting:

¶ 21. With much respect for the majority, I disagree and dissent.

¶ 22. First, I address whether we may consider this issue. The majority holds that the consideration of this issue is procedurally barred because it was not raised before the chancellor. Ryan Fulgham’s petition for custody attached as an exhibit the “Agreed Judgment Determining Paternity and Other Relief,” executed by the chancellor on May 23,1997. Lisa Romans answered the petition and asserted that she has custody of the child. At the trial, during closing argument, Lisa’s attorney argued that she was the “fit and proper parent to have the continued custody on behalf of’ A.F. (emphasis added).

¶ 23. According to the transcript, the legal standard to be applied was first mentioned in the chancellor’s ruling from the bench. There was no objection asserted as the chancellor made his ruling. After the oral opinion but prior to the entry of a final judgment, Lisa’s motion to reconsider was filed. I am of the opinion that the issue before the chancellor was whether custody should be modified or changed from Lisa to Ryan, and the chancellor was given an adequate opportunity to apply the correct legal standard but did not. Thus, I would not apply the procedural bar to our consideration of this issue.

¶ 24. Second, I discuss the appropriate standard of review, i.e., initial custody determination versus modification.

¶ 25. This ease presents us with a difficult question that is unique to the relationship between the unmarried parents of extramarital children. The difficulty arises due to the involvement of DHS in the determination of paternity and our consideration of the future legal relationship between the parents, the child and the state. I am of the opinion that the chancellor applied an erroneous legal standard when he treated Ryan Fulgham’s petition for custody as an initial custody determination. The chancellor should have treated this case as a modification of child custody, and therefore, Ryan should have been held to a higher evidentiary standard.

¶26. I concede that the majority has followed a recent decision by this Court. C.W.L. v. R.A., 919 So.2d 267 (Miss.Ct.App.2005). However, after consideration of the cases that support that decision, I am of the opinion that we applied an incorrect standard of review in C.W.L.

¶ 27. In C.W.L., Carol Ladner and Robert Anderson engaged in sexual relations that resulted in a daughter, Angel, born out of wedlock. Id. at 269(113). When the child was one-year old, Ladner filed a paternity action through the Department of Human Services against Anderson. Id. at (¶ 4). In May of 1997, the chancellor ruled that Anderson was the child’s father and ordered child support and visitation. Id.

¶ 28. Sometime thereafter, Ladner and Anderson began to live together. Id. at 270(¶ 5). When Ladner moved out again, Anderson sued for custody. Id. Ladner argued that “the May 1997 paternity order awarded her de facto custody of Angel, and as such, Anderson should have been required to prove the material change in circumstances standard used in custody modification proceedings.” Id. at 270-71(¶ 9). We rejected Ladner’s argument. Id. at 271 (¶¶ 10-11). We reasoned:

The law is well-settled that “the material changes standard used in modification proceedings is dependent on there being a prior determination of custody.” Law v. Page, 618 So.2d 96, 101 (Miss.1993). However, where there has been no prior determination of custody, “the proper standard of law to be applied is that found in divorce proceedings, which is the best interest of the minor child.” Id. (citing Albright v. Albright, 437 So.2d 1003, 1004 (Miss.1983)). Additionally, “in custody [matters] involving an illegitimate child, when the father acknowledges the child as his own, the father is deemed on equal footing with the mother as to parental and custodial rights to the child.” Id. (citing Smith v. Watson, 425 So.2d 1030, 1033 (Miss.1983)).
A review of the record reveals that the chancellor, relying on S.B. v. L. W., 793 So.2d 656 (Miss.Ct.App.2001), found that because custody of Angel had never been judicially determined, the material-change-in-circumstances standard did not apply. We agree with the chancellor’s findings. The paternity order failed to expressly award custody of Angel to Ladner. Further, there is no additional evidence in the record to suggest that a determination of custody had ever been made prior to the custody hearing. As a result, we find that the chancellor applied the correct legal standard and properly considered the case as one for initial custody. Therefore, this issue is without merit.

Id.

¶ 29. In C.W.L., we gave little if any consideration to the effect of the prior court’s paternity order. I am of the opinion that our analysis of Law and S.B. was incorrect and that these eases did not support the decision to apply the original custody determination after a paternity order had been entered by the chancellor.

¶ 30. In Law v. Page, 618 So.2d 96 (Miss.1993), the Mississippi Supreme Court considered a similar factual scenario. On September 10, 1988, Jason John Page was born to Tylena Law and Perry Jack Page, who were not married. Id. at 97. After a blood test identified Page as the father, he filed a petition to establish paternity in June of 1989. Id. The trial was held in November of 1989, and the chancellor granted Page’s petition for custody. Id. On appeal, Law argued that the chancellor erred when he used the wrong standard of review. Id. at 101. The chancellor weighed the Albright factors and granted Page custody based on what he determined to be the best interest of the child. Id. Thus, as in the instant case, the chancellor applied the standard for an initial custody determination instead of the higher evidentiary standard required in a modification of child custody determination. The court held:

Tena argues that the appropriate standard of law to be applied in the present case is that used in child modification proceedings. This contention, however, is misplaced. The “material changes” standard used in modification proceedings is dependent on there being a prior determination of custody. Such is not the case here since there has been no prior custody determination. Therefore the proper standard of law to be applied is that found in divorce proceedings, which is the best interest of the minor child. See Albright v. Albright, 437 So.2d 1003, 1004 (Miss.1983). In Smith v. Watson, 425 So.2d 1030 (Miss.1983), this Court stated that in custody dealings involving an illegitimate child, when a father acknowledges the child as his own, the father is deemed on equal footing with the mother as to parental and custodial rights to that child. Id. at 1033.

Id. (emphasis added).

¶ 31. Thus, Law held that the question of whether the chancellor should apply the initial custody standard or the modification of custody standard is decided based on whether there was a “prior determination of custody.” Id. It follows that if there was never such a determination then an original Albright analysis should be applied. Id. If there was such a prior determination then the modification standard should be applied.

¶ 32. To apply Law to the instant case and C.W.L., we must note that, in Law, the child’s father sought custody immediately, or certainly within a reasonable time, after paternity was established and his legal relationship as the child’s father began. The child was born in September of 1988, and within ten months, his father (Page) petitioned the court to establish paternity and custody. Id. at 97. The court acknowledged that the child remained in the mother’s custody from birth but held that there was no prior determination of custody. Id. at 97,101.

¶ 33. What distinguishes Law from both the present case and C.W.L., is that in Law the father immediately sought both paternity and a custody determination. Id. at 97. There was no lengthy delay. There was no prior paternity order or other pleading similar to the agreed judgment, which determined that the father was the “noncustodial parent.”

¶ 34. In S.B. v. L.W., 793 So.2d 656 (Miss.Ct.App.2001), this Court applied Law in another custody dispute between unmarried parents. Just as in Law, the father petitioned for paternity and custody at the same time. Id. at 657(¶ 1). When the child was born, the father signed the birth certifícate. Id. at (¶ 2). For the first five years of the child’s life, the father voluntarily paid child support and enjoyed liberal visitation. Id. at (¶ 3). But, “[tjhis arrangement was never formalized in court.” Id. When the mother expressed a desire to move, the father filed a paternity and custody action. Id. at (¶¶ 1, 6). Since there was never a prior determination of custody, the court cited Law and determined that the chancellor correctly considered the case “as one for initial custody and considered the factors delineated in Albright_” Id. at 659(¶ 13).

¶ 35. What distinguishes S.B. from the present case and C.W.L., is the same as Law. The father in S.B. was not party to a court executed paternity order, i.e., an agreed judgment, that held that he would pay child support. Also, the father in S.B., as in Laio, simultaneously challenged custody in the paternity actions.

¶ 36. The effect of this Court’s holding, here and in C.W.L., is that we have decided that it is acceptable for the father of an extramarital child to wait over seven years, after he is judicially determined to be the child’s father, to ask for custody of his child. This was not the holding in either Law or S.B. Then, after this long wait, this Court has decided that it is then acceptable to apply the Albright factors as if it were an initial determination of custody. I cannot accept that as a proper result or acceptable law to be applied in the future.

¶ 37. After considering C.W.L. and the facts of this case, I am of the opinion that the standard applied in C.W.L. was incorrect. Law looks to whether there was “a prior determination” of custody. It does not require an express determination, nor an explicit ruling on custody. Indeed, an order for child support necessarily rests on a determination that one parent is awarded custody and the other is not.

¶ 38. I am of the opinion that the Agreed Judgment Determining Paternity, executed by the chancellor on May 23, 1997, was a prior determination of custody. Lisa and Ryan were never married and were never divorced. A.F. was born on November 28, 1996. From that date, A.F. remained in the custody of Lisa until the chancellor changed custody. Upon birth, the mother normally retains physical custody of an extramarital child.

¶ 39. Professor Shelton Hand provides this insightful analysis:

The mother of an illegitimate child is entitled to possession and custody of the child, and being the only officially and clearly recognized parent without question, she exercises all of the parental powers. She is entitled to the custody as against the putative father where no showing is made that the mother has abandoned the child or is an unfit person. The fact that the mother should have custody of the child is based upon the strong presumption of the necessity for maternal care of an infant, without regard to the misconduct on the part of the mother. The father of an illegitimate child may, however, render the child legitimate, and such rendition has the effect of establishing the child as a full heir at law of the father. Upon the establishment of the legitimate nature or status of the child, the father then has an equal claim with the mother to the parental and custodial rights to the child. In such a case, the best interest of the child would be the proper criterion for subsequent awards of custody of the child as between the two parents.

Hand, Mississippi Divorce, Alimony & Child Custody § 21-5 (6th ed.2002). In Albright, Justice Prather wrote that the “tender years” doctrine has been weakened but remains a factor for the chancellor to consider in order to determine “the best interest and welfare of the child.” Albright, 437 So.2d at 1005.

¶ 40. After A.F.’s birth on November 28, 1996, Lisa apparently sought public financial assistance. As a result, DHS filed the paternity action. Ryan confessed, and he signed the Agreed Judgment Determining Paternity.

¶ 41. DHS was authorized to bring the paternity action pursuant to Mississippi Code Annotated Section 93-9-9(1) (Rev. 2004), which provides:

Paternity may be determined upon the petition of the mother, or father, the child or any public authority chargeable by law with the support of the child; .... If paternity has been lawfully determined, or has been acknowledged in writing according to the laws of this state, the liabilities of the noncustodial parent may be enforced in the same or other proceedings by the custodial parent, the child, or any public authority which has furnished or may furnish the reasonable expenses of pregnancy, confinement, education, necessary support and maintenance, and medical or funeral expenses for the custodial parent or the child.

(emphasis added). DHS was a proper party to commence the paternity action because it was a “public authority chargeable by law with the support of the child,” and DHS acted on Lisa’s behalf. The child support was to be paid to Lisa and was for the benefit A.F.

¶ 42. The first sentence of Section 93-9-9(1) provides who may commence a paternity action. Lisa, Ryan, A.F., or DHS could commence the action to determine who is A.F.’s father and who has the legal responsibility as A.F.’s father. The first sentence of Section 93-9-9(1) provides that DHS was a proper party to initiate a determination of A.F.’s paternity. Thus, after the agreed judgment was entered on May 23, 1997, Ryan legally was the father of A.F.

¶ 43. The second sentence of Section 93-9-9(1) provides the statutory authority for the chancellor to enforce the certain obligations of that legal relationship. Id. One obligation of a father is to provide for his child’s financial needs. The statutory-language also contemplates that someone must be determined to have physical custody of the child. The second sentence required that the chancellor consider who has actual physical custody of the child, for that is the person who will receive the benefit of the ordered child support. Id. The statute clearly and unambiguously differentiates between the “custodial parent” and the “noncustodial parent.” Id.

¶44. By his execution of the agreed judgment, Ryan agreed that (1) he was A.F.’s father, (2) he was not A.F.’s custodial parent, and (3) he was responsible for child support, i.e., the “liabilities of the noncustodial parent.” Stated differently, there were three findings in the Agreed Judgment. Two were expressly stated, and one was implied. The agreed judgment expressly found that Ryan was A.F.’s father and was obligated to pay child support. The agreed judgment also implicitly found that Ryan was the “noncustodial parent.” Child custody was not decided by the chancellor, but Ryan certainly agreed that he was not the custodial parent when he agreed, and the court ordered, that he would pay child support. If Ryan disagreed with these findings, Ryan should have promptly taken action to change the second and third findings. Indeed, he did so when he filed his petition for custody on September 21, 2004.

¶ 45. Not every case requires the chancellor to undertake an on-the-record analysis of the Albright factors before custody is determined. For example, in an irreconcilable differences divorce, the parties may “provide by written agreement for the custody and maintenance of any children of that marriage.” Miss.Code Ann. § 93-5-2(2) (Rev.2004). Where the parties agree to custody, the statute does not require the chancellor to analyze the Al-bright factors or make an on the record analysis. Instead, Section 93-5-2(2) authorizes the chancellor to accept that the parties have, through their agreement, determined that it is in the best interest of the child(ren) to be in the custody of a certain parent. The parties determination of custody in an irreconcilable differences divorce is sufficient for the chancellor to apply the modification standard in any subsequent request for change of custody.

¶ 46. The Albright factors are for the chancellor to consider when custody is challenged and the chancellor must decide who is to have custody. Albright, 437 So.2d at 1005. There is simply no legal authority that requires the chancellor to employ the Albright factors where there is no challenge to custody.

¶47. Immediately upon the execution of the May 23, 1997 agreed judgment, Ryan had an “equal” right to the custody of A.F. Mississippi Code Annotated section 93-13-1 (Rev.1994) provides:

The father and mother are the joint natural guardians of their minor children and are equally charged with their care, nurture, welfare and education, and the care and management of their estates. The father and mother shall have equal powers and rights, and neither parent has any right paramount to the right of the other concerning the custody of the minor or the control of the services or the earnings of such minor, or any other matter affecting the minor.

¶ 48. On May 23, 1997, six months after A.F.’s birth, Ryan had the right to petition the court for custody of A.F. If Ryan had done so, he would have certainly been entitled to the original determination standard. Indeed, Ryan would have been in the same position as the fathers in Law or C.W.L. The chancellor would have been required to analyze the Albright factors and determine which parent, Ryan or Lisa, should have custody of A.F.

¶ 49. Instead, with the agreed judgment in place, Ryan allowed A.F. to remain in Lisa’s custody for over seven years. From November 28, 1996 until the chancellor’s judgment on April 20, 2005, the first eight-and-a-half years of A.F.’s life, she lived with Lisa, and Ryan paid child support every month. For approximately 102 months, Ryan paid his child support and acknowledged that Lisa had custody of A.F. Ryan waited until A.F. was seven-years old before he even requested custody.

¶ 50. In Fletcher v. Shaw, 800 So.2d 1212, 1215(¶ 8) (Miss.Ct.App.2001), this Court held that where parties enter a court approved custody agreement, the modification standard applies to subsequent custody disputes. Fletcher gave birth to a daughter on June 19, 1991. Id. at 1214(¶2). She and the father Shaw were never married. Id. Two years later, Fletcher and Shaw entered a custody and child support agreement that was approved by the court. Id. at (¶ 3). It was agreed that Fletcher was to retain custody. Id. In 1999, Shaw sued for custody. Id. at (¶ 4). Because there was a court-approved contract establishing custody, we applied the modification standard to Shaw’s 1999 claim. Id. at 1215(¶ 8).

¶ 51. Fletcher is instructive here. Ryan’s execution of the agreed judgment in the initial paternity suit is a court sanctioned agreement that Lisa be granted custody. By doing so, Ryan confessed that it was in the best interest of A.F. to remain in Lisa’s custody. Therefore, I am of the opinion that Ryan has waived the Albright analysis and must show a material change in circumstances sufficient to change custody, which has remained unchallenged for these many years.

¶ 52. I am reluctant to overrule a recent prior decision of this Court. However, I am of the opinion that it is more important to establish a proper evidentiary standard that will protect extramarital children. Thus, when a child is born out of wedlock, the paternity action initiates the parental responsibilities of the child’s natural father. The court, as here, decides that the man is the child’s biological father, and he must provide support for the child. I am of the opinion that it was unreasonable for the chancellor to allow Ryan to wait over seven years to seek custody and to then use the initial custody standard as opposed to the modification of custody standard.

¶ 53. I see this as no different than Fletcher or an irreconcilable difference divorce, where the parties agree as to who is granted custody. In such case, upon a subsequent request for a change of custody, the chancellor does not simply conduct an Albright analysis. Instead, the motion to change custody is based on the modification of custody standard.

¶ 54. We should also consider the maxim that “equity aids the vigilant, not those who slumber on their rights.” In Osborne v. Vince, 240 Miss. 807, 813, 129 So.2d 345, 348 (1961), the court held:

It is a well-established maxim that equity aids the vigilant, not those who slumber on their rights. 1 Pomeroy’s Equity Jurisprudence (4th Ed.1918), Section 363, p. 674. Judge Griffith, discussing this maxim in Section 41 of his cited treatise, says: “Those who are diligent find equity always ready to extend just aid, but the slothful are not favored. There is no principle of equity sounder or more conservative of peace and of fair play than this, which requires a party who has a claim to prefer or a right to assert to do so with a conscientious promptness while the witnesses to the transaction are yet available and before the facts shall have faded from their memories. It is a fact of universal experience that men will generally use diligence to get what rightfully belongs to them, and will unreasonably delay only as to false or inequitable claims,-thus in the hope that fortuitous circumstances may improve their otherwise doubtful chances. If therefore a party delay the bringing of his suit, or delay the taking of some particular step therein, to such an unreasonable time that to allow him so late to proceed would work an injustice and injury upon the opposite party, it will require a much stronger case to move the court to action than if the matter had been seasonably presented; and if on account of the delay a serious injustice would result to the opposite party the court may decline to proceed at all.”

¶ 55. Here, the agreed judgment in the paternity action began Ryan’s rights as A.F.’s father. Ryan became obligated to support the child he brought in to this world. Under our legal structure, I am of the opinion that it was incumbent upon Ryan to seek custody at the time his legal relationship is established, or within a reasonable time thereafter, to avail himself of the initial determination of custody through the chancellor’s application of the Albright factors. I believe it is an injustice that the law would allow Ryan to wait almost eight years, while Lisa fulfilled the duties as A.F.’s custodial parent, and then seek the “initial determination of custody under Albright.” I am of the opinion that Ryan’s wait of over seven years to challenge custody required that the chancellor consider Ryan’s petition for custody under the modification of custody standard instead of the initial determination of custody standard.

¶ 56. I would reverse and remand for the chancellor to treat this as a request for modification, and “the chancellor’s duty is to determine if there has been a material change in the circumstances since the award of initial custody which has adversely affected the child and which, in the best interest of the child, requires a change in custody.” Sanford v. Arinder, 800 So.2d 1267, 1271(¶ 15) (Miss.Ct.App.2001). As such, the non-custodial parent must pass a three-part test: “a substantial change in circumstances of the custodial parent since the original custody decree, the substantial change’s adverse impact on the welfare of the child, and the necessity of the custody modification for the best interest of the child.” Id. at 1272(¶ 15) (quoting Brawley v. Brawley, 734 So.2d 237, 241(¶ 12) (Miss.Ct.App.1999)) (emphasis added).

¶ 57. For these reasons, I respectfully dissent.

SOUTHWICK and CHANDLER, JJ., join this separate opinion.

      . The case was styled “Department of Human Services, State of Mississippi (“DHS”) v. William R. Fulgham,” in the Lafayette County Chancery Court, Civil Action No. 97-036.

      . Indeed, Uniform Chancery Court Rule 4.03 provides that "[w]hile the Chancellor is rendering an oral opinion in any action he shall not be interrupted by anyone. After he has concluded, counsel for either party may make such suggestions or request such further findings of law or fact as may be deemed proper.”


source: Caselaw Access Project

author: GRIFFIS, J„

license: Public Domain

text:
    In the Matter of the ESTATE OF Samuel B. MINOR, Deceased. Tony Trask and Ethel Young, Appellants v. Halla Minor, Jr., Executor of the Last Will and Testament of Samuel B. Minor, Appellee.
    No. 2005-CA-00442-COA.
    Court of Appeals of Mississippi.
    Oct. 10, 2006.

      David S. Crawford, Ron Senko, Wood-ville, attorneys for appellants.
    Holmes Sturgeon, attorney for appellee.
    Before LEE, P.J., CHANDLER, GRIFFIS, and ROBERTS, JJ.
   GRIFFIS, J„

for the Court.

¶ 1. Tony Trask and Ethel Young filed a petition to establish paternity and to contest the Last Will and Testament of Samuel B. Minor. They alleged the will was void due to Halla Minor, Jr.’s undue influence. The chancellor upheld the will. Trask and Young appeal and argue the chancellor erred (1) in his evaluation of the evidence, (2) in his analysis of the evidence, (3) in his application of the evidence, and (4) in his determination that Minor overcame the presumption of undue influence. We find no error and affirm.

FACTS

¶ 2. Samuel Minor (“Judge Minor”) owned 100 acres of land in Wilkinson County, Mississippi. He was a farmer, deacon, local historian, and former justice of the peace. His wife predeceased him, and he had no children.

¶ 3. In 1994, Judge Minor executed his first will. He divided his land among Trask, Halla, Young, and eight others. Judge Minor’s personal property was divided among Halla, Young, and five others. Halla was left the most land, including Judge Minor’s house, as well as the most personal property.

¶4. In the mid-eighties, Judge Minor was involved in a car accident. At his request, nephew Halla moved in, took care of him, and helped on the farm. Judge Minor offered to pay Halla in exchange for these services, but he told Judge Minor there was no need. In 2000, Judge Minor was involved in another car accident. As a result, he was confined to a wheelchair. He was eventually dependent on Halla for transportation, cleaning, bathing, dressing, etc. Halla’s mother Beatrice provided meals. Because Judge Minor’s disability made it difficult to get inside the bank, he added Halla as a signatory on his checking account. Judge Minor also gave Halla a copy of the key to his safety deposit box.

¶ 5. In June of 2001, Judge Minor attempted to call his attorney several’times regarding his will and land survey. The survey suggested Judge Minor owned seventy acres. He was concerned, because he had willed away 100 acres. Late that month, he had Halla drive him to the grocery store. Halla went inside, and Judge Minor stayed in the truck. Judge Minor spotted his attorney Alonzo Sturgeon and told Sturgeon that he had researched durable powers of attorney. Judge Minor directed Sturgeon to give his durable power of attorney to Halla. Judge Minor also directed Sturgeon to change the 1994 will. Judge Minor wanted all his land to be kept in the Minor family name. He also wanted to give it to Halla in appreciation of the fact that Halla had taken care of him. He met once more with Sturgeon about the changes he wanted. Halla drove him this time also and went across the street to a service station while Judge Minor and Sturgeon discussed the will.

¶ 6. On July 9, Halla took Judge Minor to the doctor for his monthly check up. While he was there he was also screened for a nursing home, on the advice of Judge Minor’s home health nurse. She advised him that he could be placed in a nursing home in the event that Halla had to be away on weekends. Judge Minor was never placed in a nursing home.

¶ 7. Judge Minor executed his new will at his home on July 11. He bequeathed $500 apiece to Samuel Booker T. Shepard, J.T. Shepard, Nemiah Smith, Trask, and Young. He bequeathed the remaining funds in his checking account to Halla and Young. All else was left to Halla. Halla was outside working in the field during this time. His fiancee, Shirley McPipe was in the house but excused herself from the room. After the will was signed, Judge Minor instructed Halla to pay the attorney’s bill. Halla did so with a check from Judge Minor’s checkbook.

¶ 8. The following October, Judge Minor died.

STANDARD OF REVIEW

¶ 9. Undue influence is a question of fact. Watkins v. Watkins, 142 Miss. 210, 229, 106 So. 753, 755 (1926). A chancellor’s findings of fact will not be disturbed unless manifestly wrong or clearly erroneous. Sanderson v. Sanderson, 824 So.2d 623, 625(¶ 8) (Miss.2002). This Court will not disturb the findings of a chancellor when supported by substantial credible evidence unless the chancellor abused his or her discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Id. at 625-26(¶ 8). Legal questions are reviewed de novo. Russell v. Performance Toyota, Inc., 826 So.2d 719, 721(¶5) (Miss.2002).

ANALYSIS

¶ 10. Although Trask and Young list four issues, all the issues go to whether Halla overcame the presumption of undue influence. Trask and Young argue that Halla did not meet the clear and convincing burden of proof, because their evidence was more credible. They also question the sufficiency of Halla’s evidence. Halla responds he provided sufficient evidence to overcome the presumption of undue influence.

¶ 11. A will secured through undue influence is not valid. Madden v. Rhodes, 626 So.2d 608, 623 (Miss.1993). A presumption of undue influence arises when there is a confidential relationship, and the fiduciary took some active part in getting the will written. Croft v. Alder, 237 Miss. 713, 722-23, 115 So.2d 683, 686 (1959).

¶ 12. Once the presumption is established, the burden shifts to the fiduciary to rebut the presumption by clear and convincing evidence. Id. In order for Hal-la to overcome the presumption, he must show (1) that he exhibited good faith in the fiduciary relationship with Judge Minor; (2) Judge Minor acted with knowledge and deliberation when he executed his will, and (3) Judge Minor exhibited independent consent and action. Rogers v. Pleasant, 729 So.2d 192, 193(¶ 7) (Miss.1998).

¶ 13. First, we consider whether there was substantial credible evidence that Hal-la acted in good faith. To determine this element, we must examine five factors: (1) who sought the preparation of the will, (2) where and in whose presence was the will executed, (3) what was the fee that was paid to execute the will, (4) who paid the fee, and (5) was the will executed openly or secretly. Id. at 194 (¶¶ 8-11). Halla testified that it was Judge Minor’s idea to visit the attorney, and Halla did not know why. There was testimony that Judge Minor had called Sturgeon several times during the month of June 2001. Mr. Sturgeon testified it was Judge Minor who approached him about drafting his will. The will was executed at Judge Minor’s home in the presence of Mrs. Sturgeon, Edward and Sedonia Anthony, and Cora Sherman. Mrs. Sturgeon and Judge Minor went over the contents of the will alone in the kitchen. The will was signed in the living room in the presence of Mrs. Sturgeon, the An-thonys, and Sherman. Halla was outside working, and his fiancee was neither in the kitchen nor living room. The fees for the will and power of attorney were paid together at $827. Judge Minor paid the fees. The will execution was quite open, as it was in the middle of the day, in Judge Minor’s living room, in front of three witnesses, none of whom were beneficiaries. We find there was substantial credible evidence to support the chancellor’s finding that Halla acted in good faith.

¶ 14. Next, we look at whether Judge Minor acted with knowledge and deliberation when the will was executed. We must consider four factors: (1) Judge Minor’s awareness of his total assets and their general value, (2) an understanding by Judge Minor of the persons who would be the natural inheritors of his bounty under the laws of intestacy or under a prior will and how the proposed change would legally effect the prior will or natural distribution, (3) whether non-relative beneficiaries would be excluded or included, and (4) knowledge of who controls Judge Minor’s finances and business and by what method, and if controlled by another, how dependent was Judge Minor on him and how susceptible to his influence. Id. at 194(¶ 13).

¶ 15. When discussing the changes to the will, Mr. Sturgeon questioned Judge Minor about his assets. They discussed the survey that showed Judge Minor only owned seventy acres. He was aware that this was different than his understanding that he always had 100 acres. Mr. Sturgeon testified that Judge Minor knew he owned a main house and a smaller house. He was aware of his LTD automobile, but felt that since it was not running, it would not be worth what it would cost any beneficiary to fix. Judge Minor accurately recounted that he had $2,500 in his bedroom. He knew of his checking account at Commercial Bank. He correctly believed he did not have any money left over in the Masonic Relief Fund. He did not know if he ever had any in the State Retirement System. He instructed Mr. Sturgeon to check on both these funds. Trask testified that Judge Minor was aware of the timber on his land and its value. Finally, Halla testified that Judge Minor was aware that Young was stealing items of personal property out of his house. There was a question about whether he knew he still had a cow.

¶ 16. Sturgeon and Celeste Holland testified that Judge Minor understood that his 1994 will divided up the land among related and non-related parties. He now wanted the land kept intact and given to a Minor. He also wanted the land given to a person who was going to stay on it and use it. He knew Halla was a likely candidate, because he stayed and helped on the farm for many years. Judge Minor understood the new will was disinheriting several people out of land. He provided for five of those people to be given cash. Mr. Sturgeon suggested he just do a deed to Halla and reserve a life estate in himself. Judge Minor said no, he wanted a will recorded in the Chancery Court’s will book.

¶ 17. The same non-relative beneficiaries, inter alia Trask and Young, who had been included in the first will were included in the second will. However, these beneficiaries were given smaller inheritances in favor of Judge Minor’s nephew Halla.

¶ 18. Finally, the testimony was that Judge Minor was in charge of his finances and business. Halla served as his “legs.” There was testimony from several witnesses that Judge Minor was in charge, and Halla only did “what the Judge sa[id] do.” Judge Minor made the decision to have Halla added as a signatory on his account. Halla never exercised this power unless instructed by Judge Minor. It was Judge Minor’s decision to give Halla an extra key to his safety deposit box. Halla only opened the safety deposit box once and that was at Judge Minor’s instruction. It was Judge Minor’s decision to give Hal-la power of attorney. Halla never acted on his power of attorney. The only financial decision he was able to talk Judge Minor into was to buy a certificate of deposit on which the Judge drew interest. Halla deposited Judge Minor’s Social Security checks into the Judge’s account. Judge Minor exclusively handled his landlord-tenant relationship with hunters who leased the smaller house on his land. Judge Minor handled his own land survey and will drafting. There was substantial credible evidence to support the chancellor’s finding that Judge Minor acted with knowledge and deliberation when the will was executed.

¶ 19. The final element we must examine is whether Judge Minor exhibited independent consent and action. Several witnesses testified that Judge Minor was an intelligent, sharp and strong-willed individual, and this never changed despite his age. Judge Minor initiated the new will, without telling Halla. Although Halla drove his ninety-seven-year-old uncle to the lawyer’s office, he did not know the purpose of the visit and excused himself from all three discussions about the will.

¶ 20. Holland testified that Judge Minor had previously confided in her, outside of Halla’s presence, that he wanted all the land to go to Halla. Mrs. Sturgeon read the will paragraph-by-paragraph to Judge Minor. At the end of each he replied, “That’s what I want.” Mrs. Sturgeon then testified that she had Judge Minor read the will. Mr. Anthony testified that he overheard Judge Minor tell Mrs. Sturgeon that the will was what he wanted. Sherman testified that when Mrs. Sturgeon and Judge Minor returned from reading the will in the kitchen, Judge Minor remarked, “I always read what I sign.” He then signed the will. All the witnesses to the will execution testified Judge Minor was in good spirits. Jessie Stewart testified that he visited Judge Minor later that same day. Outside of Halla’s presence, Judge Minor told Stewart that he was happy, because he had just executed his will. The supreme court has affirmed a finding of independent consent and action where the fiduciary was ignorant of the new will and the testator was strong-willed. Id. at 194-95(¶ 18). That being the case here, we likewise affirm the finding of independent consent and action.

¶ 21. In sum, there was substantial credible evidence to support the chancellor’s finding that Halla overcame the presumption of undue influence by clear and convincing evidence.

¶ 22. Nevertheless, Trask and Young insist that there was conflicting evidence, so Halla cannot be said to have borne his burden of proof. That evidence is in conflict means only that there is a triable issue. It does not prevent a trier of fact from assessing whether one side has proven its case by clear and convincing evidence. See, e.g., Bacot v. Duby, 724 So.2d 410, 419(¶44) (Miss.Ct.App.1998) (holding that whether adverse possession was proven by clear and convincing evidence is a factual determination made by the chancellor).

¶ 23. Trask and Young next urge that whether facts were proven by clear and convincing evidence is a question of law, and therefore we must conduct a de novo review of the evidence. To support this contention they cite In re Will of Carney, 758 So.2d 1017 (Miss.2000), and In re Estate of Homburg, 697 So.2d 1154 (Miss.1997). Both of these cases say that application of the rules of construction and interpreting the testator’s intent are questions of law. Carney, 758 So.2d at 1019(¶ 8); Homburg, 697 So.2d at 1157 (¶¶ 10-11). These cases do not say that whether a burden of proof is met is a question of law. Indeed, it is one of fact.

¶ 24. Finally, Trask and Young maintain that Halla did not sustain his burden of proof, because their witnesses were more credible. The chancellor found Halla to be a credible witness. In assessing conflicting evidence, the chancellor, sitting as the trier of fact, retains the sole authority to determine the credibility of the witnesses. Mullins v. Ratcliff, 515 So.2d 1183, 1189 (Miss.1987). We give deference to the chancellor’s credibility findings since he is the only one who hears the testimony and observes the demeanor of witnesses. In re Estate of Carter, 912 So.2d 138, 143(¶ 18) (Miss.2005). He is in the best position to judge their credibility, and it is not this Court’s province to undermine the chancellor’s authority by replacing his judgment with our own. Id.

¶ 25. We affirm the chancellor’s finding that the Last Will and Testament of Samuel B. Minor, dated July 11, 2001, was not the product of undue influence.

¶ 26. THE JUDGMENT OF THE CHANCERY COURT OF WILKINSON COUNTY IS HEREBY AFFIRMED. ATT, COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, CHANDLER, BARNES, ISHEE AND ROBERTS, JJ., CONCUR.


author: SMITH, Justice.

text:
    AMERICAN RESOURCES INSURANCE COMPANY v. H & H STEPHENS CONSTRUCTION, INC.
    1040054.
    Supreme Court of Alabama.
    March 24, 2006.

      Michael S. Jackson of Beers, Anderson, Jackson, Patty & Van Heest, P.C., Montgomery, for appellant.
    K. Donald Simms and Benjamin J. Woolf of Austill, Lewis & Sims, P.C., Birmingham, for appellee.
    Robert A. Huffaker of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for amicus curiae Property Casualty Insurers Association of America, in support of the appellant.
    Joe Espy III and J. Flynn Mozingo of Melton, Espy & Williams, P.C., Montgomery, for amici curiae Susanne E. Giganti, as personal representative of the estate of Garnet Michelle Garvin, and Matthew Phillips, in support of the appellee.
   SMITH, Justice.

American Resources Insurance Company appeals from an order of the Bibb Circuit Court holding that American Resources was obligated to provide insurance coverage under an umbrella insurance policy American Resources issued to H & H Stephens Construction, Inc. We reverse the trial court’s judgment and render a judgment in favor of American Resources.

Facts and Procedural History

On April 11, 2003, Kenneth Gilmore, an employee of H & H Stephens acting within the scope of his employment duties, was operating a vehicle that collided with a vehicle driven by Garnet Michelle Garvin. Garvin was killed, and her passenger, Matthew Phillips, was injured.

On the date of the collision, H & H Stephens was insured by three policies issued by American Resources: (1) policy no. BA22989, entitled “Commercial Auto Coverage Part Business Auto” (“the auto policy”); (2) policy no. CP64842, entitled “Commercial Lines Policy” (“the general-liability policy”); and (3) policy no. XL52606, entitled “Commercial Umbrella Policy” (“the umbrella policy”). In addition, H & H Stephens had in place an automobile-liability policy issued by Canal Insurance Company (“the Canal policy”).

Susanne Giganti, Garvin’s mother and the personal representative of her estate, subsequently sued H & H Stephens seeking damages for wrongful death. Phillips also notified H & H Stephens that he intended to sue H & H Stephens to seek recovery for the injuries he suffered in the accident. In accordance with the Canal policy, Canal Insurance undertook H & H Stephens’s defense and tendered $1,000,-000 — the full limits of its policy — to Gigan-ti and Phillips, as the injured parties. American Resources, however, refused to defend H & H Stephens, contending that its three policies provided no coverage to H & H Stephens for the accident involving Giganti and Phillips.

H & H Stephens filed a third-party complaint naming American Resources, Gigan-ti, and Phillips as third-party defendants. In its third-party complaint, H & H Stephens sought a judgment declaring that American Resources had a duty to provide coverage to H & H Stephens under one or more of the three policies American Resources had issued to H & H Stephens. H & H Stephens, American Resources, Gi-ganti, and Phillips submitted the declaratory-judgment action to the trial court on stipulated facts and jointly introduced exhibits.

After conducting a hearing on the declaratory-judgment action at which the trial court heard oral arguments, the trial court ruled that American Resources had no obligation to defend or to provide coverage to H & H Stephens under the auto policy or the general-liability policy. However, the trial court held that the umbrella policy “is ambiguous and, further, that a reasonably prudent person would have understood and expected the Umbrella policy to extend coverage to Giganti’s claims and Phillips’[s] claims.”

The trial court concluded that the umbrella policy was ambiguous because although the title page of the policy is captioned “Commercial Umbrella Policy” and the declarations page includes an “Endorsement Schedule” stating that the policy contains an “Umbrella Coverage Form,” the policy does not include an “Umbrella Coverage Form.” Instead, the policy contains an “Occurrence Excess Policy” provision that is not mentioned in the “Endorsement Schedule.”

The trial court held that the discrepancy between the title page, the declarations page, and the policy provisions was “significant” and “patently misleading.” Central to the trial court’s conclusion was the distinction it drew between “umbrella policies” and “excess policies.” Those types of policies, in the trial court’s view, “serve distinct and competing objectives.” The trial court explained:

“Excess policies provide an additional step of coverage above underlying primary insurance and, as such, generally do not provide any broader coverage than that provided by the underlying policy. Scottsdale Ins. Co. v. Safeco Ins. Co. Of America, 111 F.Supp.2d 1273, 1278 (M.D.Ala.2000). In contrast, umbrella policies provide the broadest coverage available. Id. at 1277. As recently observed by the Alabama Supreme Court in Royal Ins. Co. of America v. Thomas, [879 So.2d 1144, 1155 (Ala.2003)], ‘Umbrella policies differ from standard insurance excess insurance policies in that they are designed to fill gaps in coverage both vertically (by providing excess coverage) and horizontally (by providing primary coverage).’ ”

The trial court then discussed the “Auto Liability Following Form” endorsement in the umbrella policy (“the umbrella endorsement”), which states that the policy provides no coverage for “ ‘bodily injury’ or ‘property damage’ arising out of the ownership, maintenance, use or en-trustment to others of any ‘auto’ ” unless “coverage is provided in ‘underlying insurance.’ ” The definitions section of the umbrella policy defines “underlying insurance” as “the coverage(s) afforded under insurance policies designated in Item 7 of the Declarations and any renewals or replacements of those policies.” Item 7 of the declarations lists three policies: the general-liability policy, the auto policy, and a workers’ compensation policy issued by Midwest Employers Casualty Company.

The insurance policy in effect on the vehicle operated by Gilmore- — that is, the Canal policy — is not designated in Item 7 of the declarations in the umbrella policy. American Resources, citing this Court’s decision in Greene v. Hanover Insurance Co., 700 So.2d 1354 (Ala.1997), therefore argued that the umbrella policy did not provide coverage to H & H Stephens for the events giving rise to Giganti’s and Phillips’s claims.

The trial court rejected American Resources’ argument that the umbrella endorsement was unambiguous and should be enforced to deny coverage to H & H Stephens. The trial court stated that an umbrella policy generally serves two objectives. First, the trial court explained that “[t]he purpose of an umbrella policy is to fill gaps, both vertically and horizontally, when coverage is otherwise unavailable.” Second, the trial court reasoned that an umbrella policy “is supposed to remove the risks associated with placing excess insurance on the wrong exposure.”

The trial court rejected American Resources’ argument that the umbrella policy provided H & H Stephens with “umbrella coverage for general liability claims not involving automobiles and .... umbrella coverage for automobile liability insured by American Resources.” In the trial court’s view, accepting American Resources’ argument would frustrate both of the objectives identified' — 'that is, “H & H Stephens would be left with a vertical gap (excess) in coverage .... [and], assuming the Canal policy did not exist, H & H Stephens would be left with a horizontal gap too.”

The trial court also rejected American Resources’ contention that this Court’s decision in Greene, supra, was controlling. Instead, the trial court relied upon the following language from Royal Insurance Co. of America v. Thomas, 879 So.2d 1144, 1155 (Ala.2003):

“An umbrella policy could not fill a horizontal gap in coverage by providing primary coverage if it provided coverage only for insureds who were covered by underlying insurance. In effect, Royal is arguing that the umbrella policy it issued affords only excess coverage rather than umbrella coverage. However, the designation of the coverage as ‘umbrella’ on the declarations page of the Royal policy forecloses that argument.”

Noting that “H & H Stephens is engaged in the business of hauling and toward such end operates a fleet of trucks” and that “[o]bviously, auto liability coverage is important to [H & H Stephens],” the trial court concluded:

“It therefore follows that a reasonably prudent person relying on the American Resources Commercial Umbrella policy would find his expectations defeated if American Resources could deny coverage under its Umbrella policy. As such, ‘those policy terms should be ignored in accordance with the reasonable expectations rule.’ Allen D. Windt, Insurance Claims and Disputes, § 6.13 at 409 (3d ed.1995). In other words, this Court rejects a construction of the policy that would negate its umbrella character. Occidental Fire & Cas. Co. of North Carolina v. Brocious, 772 F.2d 47, 54 (3d Cir.1985).”

The trial court therefore ordered that American Resources was obligated to provide coverage to H & H Stephens under the umbrella policy for Giganti’s and Phillips’s claims, and American Resources appealed.

Standard of Review

The trial court in this case applied the law to undisputed, stipulated facts. Our review therefore is de novo.

“When reviewing a case in which the trial court sat without a jury and heard evidence in the form of stipulations, briefs, and the writings of the parties, this Court sits in judgment of the evidence; there is no presumption of correctness. Old Southern Life Ins. Co. v. Williams, 544 So.2d 941, 942 (Ala.1989); Craig Constr. Co. v. Hendrix, 568 So.2d 752, 756 (Ala.1990). When this Court must determine if the trial court misapplied the law to the undisputed facts, the standard of review is de novo, and no presumption of correctness is given the decision of the trial court. State Dep’t of Revenue v. Garner, 812 So.2d 380, 382 (Ala.Civ.App.2001); see also Ex parte Graham, 702 So.2d 1215 (Ala.1997). In this case the trial court based its decision upon the stipulations, briefs, writings, and arguments of the parties’ attorneys. No testimony was presented. Therefore, we must sit in judgment of the evidence, and the trial court’s ruling carries no presumption of correctness.”

Bean Dredging, L.L.C. v. Alabama Dep’t of Revenue, 855 So.2d 513, 516-17 (Ala.2003).

Analysis

I.

American Resources argues first that the trial court erred in concluding that the umbrella policy is ambiguous. As noted, the trial court concluded that the umbrella policy is ambiguous because of the discrepancy between the use of the term “umbrella” in the title and declarations page of the policy and the later use in the policy of the words “occurrence excess policy.” Because of that discrepancy, the trial court concluded, the umbrella endorsement should be disregarded.

“ ‘The issue whether a contract is ambiguous or unambiguous is a question of law for a court to decide. McDonald v. U.S. Die Casting & Dev. Co., 585 So.2d 853, 855 (Ala.1991). “If the terms within a contract are plain and unambiguous, the construction of the contract and its legal effect become questions of law for the court....” Id. ...
“ ‘ “The test to be applied by [a] court in determining whether there is ambiguity is not what the insurer intended its words to mean, but what a reasonably prudent person applying for insurance would have understood them to mean.” Lee R. Russ & Thomas F. Segalla, Couch on Insurance § 21:14, pp. 21-23 (3d ed. 1997).... In determining whether an ambiguity exists, a court should apply the common interpretation of the language alleged to be ambiguous. See Alabama Farm Bureau Mut. Cas. Ins. Co. v. Goodman, 279 Ala. 538, 541, 188 So.2d 268, 270 (1966). This means that the terms of an insurance policy should be given a rational and practical construction. Green v. Merrill, 293 Ala. 628, 308 So.2d 702 (1975). Also, a court cannot consider the language in the policy in isolation, but must consider the policy as a whole. Turner v. United States Fidelity & Guar. Co., 440 So.2d 1026 (Ala.1983).’ ”

Nationwide Ins. Co. v. Rhodes, 870 So.2d 695, 696-97 (Ala.2003) (quoting State Farm Fire & Cas. Co. v. Slade, 747 So.2d 293, 308-09 (Ala.1999)).

American Resources contends that the umbrella endorsement is a valid exclusion that bars coverage for Giganti’s and Phillips’s claims. See Royal Insurance, 879 So.2d at 1149 (“An exclusion in an insurance policy is a provision that eliminates coverage that would have existed in the absence of the exclusion.”). The umbrella endorsement states:

“Except to the extent coverage is provided in ‘underlying insurance’, this insurance does not apply to ‘bodily injury’ or ‘property damage’ arising out of the ownership, maintenance, use or entrustment to others of any ‘auto’:
“1. While away from premises you own, rent or occupy; or
“2. Owned by or rented or loaned to any insured.
“ ‘Use’ is defined as including operation and ‘loading or unloading.’ ”

As noted, the definitions section of the umbrella policy defines “underlying insurance” as “the coverage(s) afforded under insurance policies designated in Item 7 of the Declarations and any renewals or replacements of those policies.” Thus, the umbrella endorsement unambiguously states that unless “coverage is provided” in one or more of the “insurance policies designated in Item 7 of the Declarations” section of the umbrella policy, the umbrella policy does not cover claims of “ ‘bodily injury’ or ‘property damage’ arising out of the ownership, maintenance, use or en-trustment to others of any ‘auto.’ ” In this case, the only policy in effect on the auto driven by Gilmore was the Canal policy. Because the Canal policy is not a policy “designated in Item 7 of the Declarations” section of the umbrella policy, the umbrella policy does not apply to Giganti’s and Phillips’s claims against H & H Stephens.

H & H Stephens argues, however, that, when read in conjunction with paragraph 10 of section V of the umbrella policy, the umbrella endorsement is ambiguous. According to H & H Stephens, it is reasonable to construe the umbrella endorsement “to mean that umbrella coverage ... for auto liability is available under the American Resources Umbrella Policy to the same extent such coverage is available under either American Resources’ Automobile Liability Policy or a similar policy such as the [Canal policy].” (H & H Stephens’s brief, p. 57.) We disagree. This Court in Greene rejected an argument similar to the one made by H & H Stephens in this case. Greene, 700 So.2d at 1357-58 (“Greene contends that the general language of the ‘Excess Insurance’ section of the Umbrella Policy provides excess coverage ... if the underlying insurance ... is inapplicable.... This argument misses the point. Regardless of whether the Umbrella Policy coverage takes the form of excess or nonexcess coverage, it is still subject to the Umbrella Endorsement’s exclusion for injuries arising from the use of automobiles.” (footnote omitted)).

Moreover, for the umbrella policy to apply to the claims brought by Giganti and Phillips, the umbrella endorsement unambiguously required H & H Stephens (1) to have had a separate policy on the automobile Gilmore was driving at the time of the accident, and (2) to have had that separate policy listed in Item 7 of the declarations section of the umbrella policy. H & H Stephens complied with the first condition; the automobile driven by Gilmore was covered by the Canal policy. But because the Canal policy is not designated in Item 7 of the declarations section of the umbrella policy, H & H Stephens did not satisfy the second condition.

H & H Stephens argues in its brief, however, that an ambiguity is created by the use of the word “coverage” — which is not defined in the umbrella policy — in the umbrella endorsement, in the definition of “underlying insurance,” and in Item 7 of the declarations section of the umbrella policy. Item 7 states:

“Item 7: Schedule of ‘Underlying Insurance’ Policies:
“Carrier and Policy Number
Coverage
Underlying Limits of Liability
“AMERICAN RESOURCES INS CO. CP64842 06/14/02 TO 06/14/03
GENERAL LIABILITY
$1,000,000 EACH OCCURRENCE $2,000,000 GENERAL AGGREGATE $2,000,000 PRODUCT AGGREGATE
“American Resources Insurance Company, Inc. BA22989
Include Automobile Liability
$1,000,000 CSL INCL HIRED/NONOWNED
“MIDWEST EMPLOYERS CASUALTY CO. 22140S00AL 01/01/02 TO 01/01/03
Include Liability
$1,000,000 Each Accident $1,000,000 Disease-Policy Limit $1,000,000 Disease-Each Employee”

(Capitalization in original.)

H & H Stephens argues that the phrase “Include Automobile Liability” in the column headed “Coverage ” means that Item 7 encompasses all automobile-liability policies H & H Stephens had in effect; H & H Stephens reasons that the Canal policy therefore was “designated” in Item 7. This argument, however, is without merit. The descriptions in the “Coverage ” column in Item 7 serve only to describe generally the specific policies listed in the “Carrier and Policy Number” column. Thus, rather than referencing “a similar policy” as H & H Stephens argues, the phrase “Include Automobile Liability” is a general description of the coverage provided under American Resources policy BA22989 — the auto policy.

Moreover, the definition of “underlying insurance” in the umbrella policy forecloses H & H Stephens’s argument regarding the word “coverage.” “Underlying insurance” is defined as “the coverage(s) afforded under insurance policies designated in Item 7 of the Declarations.” Clearly, the Canal policy is not listed in the column in Item 7 entitled “Carrier and Policy Number.” The umbrella endorsement therefore unambiguously excludes Giganti’s and Phillips’s claims from coverage under the umbrella policy.

II.

H & H Stephens argues that enforcing the umbrella endorsement would render the umbrella policy illusory and would defeat the “reasonable expectations” of a purchaser of an umbrella policy. H & H Stephens maintains that this Court’s decision in Royal Insurance requires us to disregard the umbrella endorsement.

We disagree. Royal Insurance is distinguishable from the present ease. The umbrella insurer in Royal Insurance, Royal Insurance Company, conceded that Thomas, the driver of the vehicle involved in the accident in that case, was an “insured” under the Royal umbrella policy. Because Thomas was an “insured” under the Royal umbrella policy, Thomas was not an insured under a separate, “garage” policy issued by Certain Interested Underwriters at Lloyd’s of London (“Lloyd’s London”) because of an exclusion in that policy. 879 So.2d at 1148, 1154. Thus, under the terms of the Royal umbrella policy, Thomas was not covered by “underlying insurance” or “other insurance.” 879 So.2d at 1154-55.

The Royal umbrella policy provided coverage only for “ ‘sums in excess of the “retained limit” which the insured becomes legally obligated to pay as damages.’” 879 So.2d at 1148. Where an insured, like Thomas, was not covered by “underlying insurance” or “other insurance,” the Royal policy defined the “retained limit” as “ ‘the amount stated in Item 4 of the declarations as the Retained Limit/Each Occurrence.’ ” 879 So.2d at 1148. However, “[i]n Item 4 of the declarations page, '$’ with no amount beside it appeared] opposite ‘Retained Limit/Each Occurrence.’ ” 879 So.2d at 1155.

This Court rejected Royal’s argument “that the absence of an amount beside the '$’ means that the policy does not cover an insured who does not have ‘underlying insurance’ or other insurance.” 879 So.2d at 1155. This Court explained:

“[T]he Royal policy definition of ‘insured,’ which does not condition coverage by the Royal policy on there being coverage by ‘underlying insurance’ or other insurance, contradicts Royal’s argument. Likewise, the very nature of umbrella coverage reveals the fallacy in the argument made by Royal. ‘Umbrella policies differ from standard excess insurance policies in that they are designed to fill gaps in coverage both vertically (by providing excess coverage) and horizontally (by providing primary coverage).’ Commercial Union [Ins. Co. v. Walbrook Ins. Co., 7 F.3d 1047, 1053 (1st Cir.1993) ]. An umbrella policy could not fill a horizontal gap in coverage by providing primary coverage if it provided coverage only for insureds who were covered by underlying insurance. In effect, Royal is arguing that the umbrella policy it issued affords only excess coverage rather than umbrella coverage. However, the designation of the coverage as ‘umbrella’ on the declarations page of the Royal policy forecloses that argument.
“Because we must interpret insurance policies ‘to give meaning and effect, if possible, to every word and phrase in the contract’ and cannot adopt ‘a construction which neutralizes any provision,’ J. Appleman, Instmnce Law and Practice, [§ 4909.85 at 452-53 (1981) ], we must interpret the absence of an amount beside the '$’ where the amount of the ‘Retained Limit/Each Occurrence’ is to be designated in Item 4 of the declarations page as the expression of an intent to specify that the ‘Retained Limit/Each Occurrence’ was zero when there was no applicable ‘underlying insurance’ or other insurance and that, therefore, the ‘retained limit’ applicable to Thomas under the Royal policy is zero. This interpretation means that the Royal policy affords Thomas primary coverage for [the] claims.”

879 So.2d at 1155.

Thus, the issue addressed by this Court in Royal Insurance was whether the absence of an amount beside “Retained Limit/Each Occurrence” in Item 4 of the declarations of the umbrella policy in that case meant that the Royal policy did not provide coverage. Unlike the present case, this Court in Royal Insurance was not faced with the effect of an unambiguous exclusion in an umbrella policy. Royal Insurance therefore does not stand for the proposition that an unambiguous exclusion from coverage in an umbrella policy is invalid, and the trial court in this case erred in so reading Royal Insurance.

This Court’s decision in Greene recognizes that an umbrella policy may exclude coverage for damages arising out of an automobile accident unless the automobile involved in the accident is covered by an underlying insurance policy. In Greene, a vehicle driven by Scott James Vance (“Scott”) was involved in a collision in which Greene sustained injuries. Vance Electrical Contractors, Inc. (“VEC”), Scott’s employer and the owner of the vehicle driven by Scott, had in effect two insurance policies issued by Hanover Insurance Company and Massachusetts Bay Insurance Company (collectively “Hanover”). The first policy, an automobile-liability policy, “contained an exclusion endorsement ... that specifically excluded Scott from coverage.” 700 So.2d at 1355.

The second policy was an umbrella policy that contained the following exclusion in an endorsement to the policy:

“‘COMMERCIAL UMBRELLA LIABILITY
“ ‘THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
“‘FOLLOW FORM-AUTO LIABILITY
“ ‘This endorsement modifies insurance provided under the COMMERCIAL UMBRELLA LIABILITY COVERAGE FORM.
“ ‘This insurance does not apply to “bodily injury,” “property damage” or “personal injury” arising out of the ownership, maintenance, use or entrustment to others of any “auto.”
“ ‘This exclusion does not apply to the extent that valid and collectible insurance is provided by “underlying insurance,” except with respect to limits of insurance or limits of liability.’ ”

700 So.2d at 1358 n. 5 (capitalization in original).

Greene argued
“that the general language of the ‘Excess Insurance’ section of the Umbrella Policy provides excess coverage (i.e., coverage in excess of the underlying policy limits) with respect to VEC’s employees, including Scott, if the underlying insurance (i.e., Hanover’s [automobile-liability policy]) is inapplicable.

Thus, Greene argues that if we hold that the [automobile-liability policy] does not cover Scott, then we must hold that the Umbrella Policy does cover Scott as ‘excess insurance.’

“ ‘2. FAILURE TO MAINTAIN “UNDERLYING INSURANCE”
‘In the event you fail to maintain “underlying insurance” as required in 9. MAINTENANCE OF UNDERLYING INSURANCE in SECTION VI — CONDITIONS, this insurance shall not replace such “underlying insurance” but shall apply as if the “underlying insurance” were valid and collectible.’ ”

700 So.2d at 1357-58 (capitalization in original). This Court, however, rejected Greene’s argument, stating:

“This argument misses the point. Regardless of whether the Umbrella Policy coverage takes the form of excess or nonexcess coverage, it is still subject to the Umbrella Endorsement’s exclusion for injuries arising from the use of automobiles. The Umbrella Endorsement unambiguously provides that the Umbrella Policy does not cover ‘ “bodily injury,” “property damage” or “personal injury” arising out of the ownership maintenance, use or entrustment’ of VEC’s vehicles.”

700 So.2d at 1358 (footnote omitted; emphasis added).

The trial court here did not attempt to distinguish Greene, relying instead on Royal Insurance. Greene recognizes, however, that an unambiguous exclusion in an umbrella policy is enforceable. The unambiguous umbrella endorsement in American Resources’ umbrella policy therefore excludes coverage under that policy for Giganti’s and Phillips’s claims.

Even so, H & H Stephens contends that enforcing the umbrella endorsement would violate the reasonable-expectations doctrine. In State Farm Fire & Casualty Co. v. Slade, supra, this Court discussed the reasonable-expectations doctrine:

“The rule (or doctrine) of reasonable expectations of the parties is based on Aetna Casualty & Surety Co. v. Chapman, 240 Ala. 599, 200 So. 425 (1941). In Chapman, this Court embraced the following rule of construction:
“ ‘Policies of insurance being carefully prepared by the insurer, when containing provisions reasonably subject to different constructions, one favorable to the insurer and one favorable to the insured, the construction favorable to the insured shall prevail. As sometimes stated the insured is entitled to the protection which he may reasonably expect from the terms of the policy he purchases.’
240 Ala. at 602, 200 So. at 426-27. However, the Chapman Court also stated:
“ ‘In giving effect to this rule, it is equally important that the contract made by the parties shall prevail, and no new contract be interpolated by construction.
“ ‘Provisions clearly disclosing their real intent are not to be given a strained construction to raise doubts where none reasonably exist. No citation of authority need be made in support of these well settled principles.’

“Id.”

Slade, 747 So.2d at 311. The trial court here held that the reasonable-expectations doctrine required that it disregard the umbrella endorsement. The trial court reasoned that enforcing the umbrella endorsement would “negate” the policy’s “umbrella character” because, in the trial court’s view, the purely excess nature of the endorsement was inconsistent with the purpose of a true umbrella policy. But Greene makes it clear that “[rjegardless of whether the Umbrella Policy coverage takes the form of excess or nonexcess coverage, it is still subject to the Umbrella Endorsement’s exclusion.” 700 So.2d at 1358.

The trial court also justified disregarding the umbrella endorsement because the endorsement schedule in the policy states that the policy includes an “Umbrella Coverage Form,” but the policy instead contains provisions with the caption “Occurrence Excess Policy.” Although this discrepancy might justify a finding of ambiguity in the policy, under the circumstances it does not require that the umbrella endorsement be disregarded.

First, we note that in addition to the “Umbrella Coverage Form,” the endorsement schedule also refers to the “Auto Liability Following Form.” Thus, regardless of whether the use of the phrase “Umbrella Coverage Form” in the endorsement schedule created an ambiguity, that same endorsement schedule unambiguously refers the.policyholder to the exclusion on which American Resources is relying. Slade, 747 So.2d at 312 (“The State Farm policy at issue here clearly limits its coverage by citing the policyholder to a specific ensuing section of the policy that contains several exclusions from coverage. At least one court has found that such a reference gives the insured reasonable notice of the exclusion.” (citing Kane v. Royal Ins. Co., 768 P.2d 678, 684 (Colo.1989))).

Second, the doctrine of reasonable expectations is not so expansive that any ambiguity in a policy will automatically justify disregarding an unambiguous exclusion in the policy. See Slade, 747 So.2d at 312 (“for the rule of reasonable expectations to apply, there [must] be, as a predicate, doubts as to the real intent of the policy”). In Slade, this Court found that the term “dwelling” in the policy at issue there was ambiguous. 747 So.2d at 309-10. Even so, the Slade Court enforced an unambiguous exclusion in the policy. This Court refused to use the reasonable-expectations doctrine to disregard that exclusion because

“expectations that contradict a clear exclusion are not ‘objectively reasonable.’ Wellcome v. Home Ins. Co., 257 Mont. 354, 359, 849 P.2d 190, 194 (1993). Such a limit on the doctrine of reasonable expectations is necessary. Otherwise, this Court would be faced with the strong temptation to substitute its notion of equity for the unambiguous terms of a contract and the doctrine could be used to invalidate every policy exclusion. See Millar v. State Farm Fire & Cas. Co., 167 Ariz. 93, 97, 804 P.2d 822, 826-27 (Ct.App.1990), review denied, 168 Ariz. 144, 811 P.2d 1081 (Ariz.1991) (‘If ... all that was required to defeat the operation of a policy exclusion under the reasonable expectation doctrine was a provision attempting to qualify or limit the scope of policy coverage, then every policy exclusion would be invalid as contrary to the insured’s reasonable expectation of coverage.’).
“Accordingly, we conclude that the Slades’ expectations of coverage do not require us to construe their policy so as to find coverage. Their expectations were limited by the unambiguous terms of their policy and therefore their expectations of coverage could not be ‘objectively reasonable.’ See Wellcome, supra. Moreover, because we are remanding this case for further proceedings on the issue of coverage, we cannot say that the contract is unconscionable. Unless the terms of an exclusion so narrowly restrict coverage as to render the contract unconscionable, the Legislature, and not the Court, is the proper forum for correction of what some may deem to be an excessively broad exclusion. This is particularly true in a case such as this one, in which the coverage is not mandated by a legislative statement of public policy, such as, for example, the statutory requirement that automobile-liability insurers offer uninsured-motorist coverage. Compare Lambert [v. Liberty Mut. Ins. Co., 331 So.2d 260, 263 (Ala.1976)]. Therefore, we hold that the Slades’ doetrine-of-rea-sonable-expectations argument does not provide a basis for finding coverage for the Slades’ loss.”

747 So.2d at 312.

Thus, regardless of any discrepancy between the “Commercial Umbrella Policy” caption on the title page, the use in the endorsement schedule of the phrase “Umbrella Coverage Form,” and the provisions in the policy captioned “Occurrence Excess Policy,” H & H Stephens could not have reasonably expected — in the face of the unambiguous exclusion in the umbrella endorsement — that the umbrella policy would provide coverage for Giganti’s and Phillips’s claims.

Conclusion

The judgment of the trial court is reversed, and a judgment is rendered for American Resources.

REVERSED AND JUDGMENT RENDERED.

NABERS, C.J., and SEE, LYONS, HARWOOD, WOODALL, STUART, and BOLIN, JJ., concur.

PARKER, J., concurs in the result.

      . Regarding those two policies, the trial court’s order states:
      “The Court finds as a matter of law that the language of the Auto policy is unambiguous and, further, that a reasonably prudent person would have understood that the Auto policy does not extend coverage • to Giganti’s claims. According to the Auto policy, coverage is extended to only specifically designated 'autos' listed in the 'schedule of covered autos you own,' including replacements of such autos. The auto owned and operated by the insured, H & H Stephens, involved in the accident giving rise to this lawsuit is not a scheduled auto listed in the 'schedule of covered autos you own.’ Moreover, there is no evidence in the record before the Court that the auto is a replacement of one of the autos listed in the 'schedule of covered autos you own.’ Accordingly, coverage is unavailable to H & H Stephens under the Auto policy for the claims made against it in the Giganti lawsuit.
      “The Court finds as a matter of law that the language of the General Liability policy is unambiguous and, further, that a reasonably prudent person would have understood that the General Liability policy does not extend coverage to Giganti’s claims. Coverage under the General Liability policy is addressed in the General Liability coverage form, which contains an exclusion that excludes coverage for ' “bodily injury’’ or “property damage” arising out of the ownership, maintenance, use or entrustment to others of any aircraft, “auto” or watercraft owned or operated by or rented or loaned to any insured.' ‘Auto’ is defined as 'a land motor vehicle, trailer or semi-trailer designed for travel on public roads, including any attached machinery or equipment.’ Based upon the clear meaning of such exclusion and definition, .... coverage is unavailable to H & H Stephens under the General Liability policy for the Claims made against it in the Giganti lawsuit.”
      H & H Stephens did not appeal from those parts of the trial court’s order finding that H & H Stephens does not have coverage under the auto policy or the general-liability policy for Giganti’s and Phillips’s claims.

      . The trial court’s order refers both to Phillips’s “anticipated claims” and to his "claims” against H & H Stephens. In actuality, Phillips had not yet sued H & H Stephens at the time of the trial court’s order from which American Resources appeals. However, the trial court’s order explains that Phillips had notified H & H Stephens of his intention to seek recovery from H & H Stephens for injuries he sustained in the accident. In addition, briefs to this Court from H & H Stephens as appellee and from Phillips as amicus curiae indicate that approximately one month after the trial court's order, Phillips indeed sued H & H Stephens. For the sake of simplicity, when discussing whether American Resources is obligated to provide coverage to H & H Stephens under the umbrella policy, we refer to Phillips’s ''claims” rather than to his ''anticipated claims.”

      . The trial court did not make its declaratory-judgment order a final judgment under Rule 54(b), Ala. R. Civ. P. We therefore remanded the case to the trial court on January 19, 2006, in accordance with this Court's policy as stated in Foster v. Greer & Sons, Inc., 446 So.2d 605, 609 (Ala.1984), overruled on other grounds by Ex pane Andrews, 520 So.2d 507, 510 (Ala.1987). On January 26, 2006, the trial court certified its declaratory-judgment order as a final judgment under Rule 54(b), Ala. R. Civ. P. The record has been supplemented to include that Rule 54(b) certification. See Donegal Mut. Ins. Co. v. McConnell, 562 So.2d 201, 203 n. 4 (Ala.1990).

      . Paragraph 10 of section V of the umbrella policy states:
      "10. Other insurance "If other valid and collectible insurance is available to the insured for 'ultimate net loss’ we cover under this policy, our obligations under this policy are limited as follows:
      "A. As this insurance is excess over any other insurance, whether primary, excess, contingent or on any other basis, except such insurance as is specifically purchased to apply in excess of this policy’s Limit of Insurance, we will pay only our share of the amount of 'ultimate net loss', if any, that exceeds the sum of:
      "(1) The total amount that all such other insurance would pay for the loss in the absence of this insurance; and
      "(2) The total of all deductible and self-insured amounts under this or any other insurance.
      "B. We will have no duty under Coverages A or B to defend any ‘claim’ or suit’ that any other insurer has a duty to defend. If no other insurer defends, we may undertake to do so, but we will be entitled to the insured’s rights against all other insurers.”

      . As indicated, the trial court held that the auto policy provides no coverage to H & H Stephens for Giganti’s and Phillips’s claims. See supra note 1.

      . Thomas, a customer of Carl Cannon Chevrolet-Olds, Inc. ("Carl Cannon"), was operating a vehicle Carl Cannon had loaned her at the time of the collision giving rise to the coverage dispute in Royal Insurance. Thus, Thomas met the definition of "insured” in the Royal umbrella policy. 879 So.2d at 1146— 48. The Royal policy defined an "insured” as follows:
      " ‘IV. WHO IS AN INSURED
      " T. If you [Carl Cannon] are designated in the declarations as:
      " '(a) An organization other than a partnership, joint venture or limited liability company, you are an insured....

      " '2. Each of the following is also an insured:

      " '(d) Any person who has your permission to use an "automobile” owned by, loaned to, or hired for use by you, and any person or organization legally responsible for the use of that "automobile” ....'"
      879 So.2d at 1147-48.

      “4The Excess Insurance Section of the Umbrella Policy provides:
      “ ‘1. OTHER INSURANCE
      “ ‘This insurance is excess over “underlying insurance” whether or not valid and collectible, or any other valid and collectible insurance which is specifically purchased by the insured as excess insurance over the insurance provided by this policy. “ ‘If there is no “underlying insurance” or valid and collectible insurance available to the insured with respect to an “occurrence” to which this insurance applies, then this policy shall apply as excess over the Retained Limit stated in the DECLARATIONS except:

      “ ‘c. When you fail to maintain “underlying insurance” in accordance with 9. MAINTENANCE OF UNDERLYING INSURANCE in SECTION VI — CONDITIONS.

      . We decline H & H Stephens's request to reject or overrule Greene in favor of the decision of the Supreme Court of Louisiana in Futch v. Commercial Union Insurance Co., 625 So.2d 1019, 1020-21 (La.1993), in which that court concluded that an endorsement entitled “Automobiles — Limitation of Coverage” was ambiguous. The language of the endorsement in Futch was significantly different from the umbrella endorsement in this case and the endorsement in Greene. The endorsement in Futch stated:
      "It is agreed that, except insofar as coverage is available to the Insured for the full limits of liability as set forth for policies of underlying insurance issued by the Commercial Union Insurance Company, the American Employers' Insurance Company, The Employers' Fire Insurance Company and The Northern Assurance Company of America in Item 3 of the Declarations, this policy shall not apply to the ownership, maintenance, operation, use, loading or unloading of any automobile.”
      625 So.2d at 1020-21. The endorsement at issue in the present case, however, is more analogous to the endorsement the Greene Court concluded was unambiguous.
      Moreover, our conclusion that the umbrella endorsement is unambiguous is consistent with a decision of the United States District Court for the District of Maryland regarding a similarly worded exclusion in an umbrella policy. In Harleysville Insurance Co. v. Mac’s Septic Service, 225 F.Supp.2d 595, 598 (D.Md.2002), the exclusion was entitled "Auto Liability Limitation” and stated that the umbrella policy

        "does not apply to any liability for 'bodily injury’, 'property damage' or ‘personal injury’ arising out of the ownership, maintenance, operation, use, loading or unloading or any 'auto’ unless the liability is covered by valid and collectible ‘underlying insurance’ as listed in the Schedule of Underlying Insurance, for the full limit shown, and then only for the hazards for which coverage is afforded by 'underlying insurance.' ”
      The district court, applying Maryland law, enforced the exclusion to deny coverage under the umbrella policy at issue. 225 F.Supp.2d at 598-99.

      . As noted, supra, Item 7 of the declarations section of the umbrella policy lists the auto policy as one of the "underlying insurance” policies. H & H Stephens concedes that the auto policy covered up to 18 vehicles, all with an operating radius of 50 miles or less. (H & H Stephens's brief, p. 17 n. 2.) Thus, the umbrella policy could have applied to claims brought against H & H Stephens for damages relating to a number of vehicles, provided those vehicles were covered by the auto policy. This supports our conclusion that enforcing the umbrella endorsement does not render the umbrella policy "illusory.”