author: PER CURIAM. CRAWLEY, Presiding Judge, BRYAN, Judge,

text:
    Virginia VEST v. Bernie VEST.
    2040332.
    Court of Civil Appeals of Alabama.
    Dec. 1, 2006.
    Rehearing Denied May 11, 2007.
    Certiorari Denied July 20, 2007 Alabama Supreme Court 1061212.

      Kenneth J. Lay of Legal Services Alabama, Inc., Birmingham; and Jessica D. Kirk, Birmingham, for appellant.
    Michael Lipscomb of Lipscomb & Lipscomb, Bessemer; and Stan Brobston of Brobston & Brobston, Bessemer, for ap-pellee.
   On Application for Rehearing

PER CURIAM.

The no-opinion affirmance of April 14, 2006, is withdrawn, and the following is substituted therefor.

Virginia Vest (“the wife”) appeals a summary judgment in favor of Bernie Vest (“the husband”) in a postdivorce proceeding.

The parties were divorced by a judgment entered on November 18, 2002. With regard to the marital residence, the divorce judgment provided as follows:

“7B. With regard to the homeplace of the parties, it shall be sold as soon as practicable with the net proceeds to be divided 40% to [the wife] and 60% to [the husband].... [The wife] shall have the exclusive use and possession of the residence for a period of thirty (30) days from the date of this order after which she shall vacate the premises and have the keys delivered to [the husband]. [The husband] shall continue to be responsible for paying the mortgage until the homeplace is sold.
“7C. As an option to 7B above [the - husband] may obtain exclusive title and ownership of the homeplace of the parties by tendering to [the wife] within thirty (30) days hereof, her 40% interest in the net equity of the homeplace, which the Court deems to be $20,000.... Upon tender of this amount to [the wife] she shall immediately execute a quitclaim deed to [the husband] devising her interest in the subject property to him.
“10. The Court shall retain jurisdiction for a period of forty-five days (⅛5) days from the date of this Order to ensure all acts requiring performance (e.g., physical transfer of property; execution of documents) are performed. Should a party feel aggrieved hereunder (e.g., allege that they cannot retrieve property because adverse party is denying access) they shall file an appropriate motion for relief within said forty-five (⅛5) day period or be deemed to have forfeited the property awarded or waived the provision in their favor, it being the intent of the Court to resolve all such disputes expeditiously and without the need for subsequent Rule Nisi filings.”

(Emphasis added.)

On December 18, 2002, the husband moved the trial court to order the wife to vacate the marital residence and to hold her in contempt because, he said, she had not vacated the marital residence within the time limit imposed by the divorce judgment. The wife alleged that she had not vacated the marital residence because she had been bedridden due to an illness. On February 26, 2003, the trial court denied the husband’s motion.

On May 23, 2003, the wife filed a rule nisi petition, seeking an order compelling the husband either to tender her $20,000 or to place the marital residence on the market for sale immediately. Moving the trial court to dismiss the wife’s petition, the husband argued that the wife had forfeited her interest in, the marital residence by failing to seek enforcement of the divorce judgment within the 45-day period specified by paragraph 10 of the divorce judgment. The trial court dismissed the wife’s petition on October 6, 2003.

On November 5, 2003, the wife moved the trial court to alter, amend, or vacate the judgment dismissing her rule nisi petition. However, before the trial court had ruled on her postjudgment motion, the wife filed a notice of appeal to this court on November 17, 2003. While the wife’s appeal was pending, the trial court held a hearing on her postjudgment motion and, on December 4, 2003, set aside its judgment dismissing the wife’s petition. This court subsequently dismissed the wife’s appeal on December 19, 2003. See Vest v. Vest, 898 So.2d 935 (Ala.Civ.App.2003) (table).

On January 23, 2004, the husband moved for a summary judgment with respect to the wife’s rule nisi petition. In his motion, the husband argued that he was entitled to a judgment as a matter of law because, he said, the trial court, in its divorce judgment, unambiguously reserved jurisdiction for only 45 days following the entry of the divorce judgment, the wife had not timely appealed that judgment, and, therefore, the wife had forfeited her interest in the marital residence as provided by paragraph 10 of the divorce judgment.

On February 27, 2004, the wife filed a motion to clarify and enforce the divorce judgment. On March 1, 2004, the trial court held a hearing on the parties’ motions and then denied the husband’s motion for a summary judgment.

On May 14, 2004, the husband again moved the trial court for a summary judgment, based on the same arguments he had asserted in his January 23, 2004, motion. On May 25, 2004, the husband amended his motion for a summary judgment, arguing that he was entitled to a judgment as a matter of law because, he said, the wife’s petition for a rule nisi was barred because it was a compulsory counterclaim that she was obligated to plead in response to his December 18, 2002, motion to enforce the divorce judgment and she had not pleaded it in response to that December 18, 2002, motion.

On June 1, 2004, the wife moved the trial court to dismiss the husband’s motion for a summary judgment. On June 16, 2004, the trial court held a hearing on the parties’ motions and received ore tenus evidence. The trial judge indicated at the hearing that he was going to grant the husband’s summary-judgment motion on the ground that the divorce judgment limited the jurisdiction of the trial court to a period of 45 days following the entry of the divorce judgment.

On September 23, 2004, the trial court entered a written summary judgment in favor of the husband. In the written summary judgment, the trial court did not specify its grounds for entering the summary judgment. The wife filed a post-judgment motion, which was subsequently denied. The wife then timely appealed the summary judgment.

On appeal, the wife argues that the trial court erred in granting the husband’s motion for a summary judgment. Specifically, she argues that the husband is not entitled to a summary judgment because, she argues, (1) trial courts have the inherent power to enforce their judgments; (2) the parties cannot comply with the divorce judgment because it is ambiguous and it is impossible for the parties to comply with; (3) the trial court denied the wife due process of law by limiting its power to enforce the divorce judgment to a period of 45 days following the entry of the divorce judgment; (4) a genuine issue of a material fact exists regarding whether the husband complied with the divorce judgment; and (5) she pleaded several meritorious affirmative defenses.

“We review a summary judgment de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So.2d 72, 74 (Ala.2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that there exists no genuine issue of material fact and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 952 (Ala.2004).”

Turner v. Westhampton Court, L.L.C., 903 So.2d 82, 87 (Ala.2004). Additionally,

“in Callaway v. Whittenton, 892 So.2d 852 (Ala.2003), this Court stated:
“ ‘ “ ‘Regarding a question of law, ... this Court indulges no presumption of correctness as to the trial court’s ruling.’ ” ’
“(Quoting Eagle Prods., Inc. v. Glasscock, 882 So.2d 280, 282 (Ala.2003), quoting in turn Bell v. T.R. Miller Mill Co., 768 So.2d 953, 956 (Ala.2000).)”

State Farm Mut. Auto. Ins. Co. v. Brown, 894 So.2d 643, 647 (Ala.2004). Furthermore, “ ‘[w]hen a trial judge’s ruling is not based substantially on testimony presented live to the trial judge, review of factual issues is de novo.’” Goodwyn, Mills & Cawood, Inc. v. Market Ins. Co., 911 So.2d 1044, 1047 (Ala.2004) (quoting Rogers Found. Repair, Inc. v. Powell, 748 So.2d 869, 871 (Ala.1999)).

Article 1, § 13, of the Alabama Constitution of 1901, states: “That all courts shall be open; and that every person, for any injury done him, in his lands, goods, person, or reputation, shall have a remedy by due process of law; and right and justice shall be administered without sale, denial or delay.” Furthermore, “[t]his section of our constitution secures every citizen against arbitrary action of those in authority....” McCollum v. Birmingham Post Co., 259 Ala. 88, 95, 65 So.2d 689, 695 (1953). Moreover, “ ‘[d]ue process requires that the court which assumes to determine the rights of parties shall have jurisdiction to hear and determine.’ ” McCollum, 259 Ala. at 95, 65 So.2d at 694-95 (quoting Board of Revenue of Covington County v. Merrill, 193 Ala. 521, 546, 68 So. 971, 979 (1915)).

In Ex parte Franklin, 792 So.2d 444 (Ala.Crim.App.2001), the Court of Criminal Appeals held that the trial court’s judgment prohibiting an inmate from filing any postconviction petitions violated the Due Process Clause of the Fourteenth Amendment of the United States Constitution. The Franklin court stated:

“ ‘Courts have an “inherent power ... to regulate the activities of abusive litigants by imposing carefully tailored restrictions under the appropriate circumstances.” Cotner v. Hopkins, 795 F.2d 900, 902 (10th Cir.1986). While those conditions may be “onerous,” they “cannot be so burdensome, however, as to deny a litigant meaningful access to the courts.” Cotner, 795 F.2d at 902.’ ”

Ex parte Franklin, 792 So.2d at 445-46 (quoting Peoples v. State, 531 So.2d 323, 326-27 (Ala.Crim.App.1988)). See also Ex parte Magouirk, 804 So.2d 308 (Ala.Crim. App.2001).

In the case now before us, the trial court, by limiting the wife’s ability to seek postjudgment relief to a period of 45 days following the entry of the divorce judgment, improperly purported to limit the wife’s access to the courts in violation of Art. 1, § 13, Ala. Const, of 1901. Cf, Ex parte Franklin, supra; and Ex parte Magouirk, supra. Moreover, because the provision of the divorce judgment purporting to limit the wife’s ability to seek post-judgment relief to a period of 45 days was invalid, the trial court erred in entering a summary judgment in favor of the husband on the basis of that invalid provision. Consequently, we reverse the trial court’s judgment and remand the case for further proceedings consistent with this opinion.

APPLICATION GRANTED; NO-OPINION AFFIRMANCE OF APRIL 14, 2006, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED.

CRAWLEY, P.J., concurs in the result, with writing.

THOMPSON and MURDOCK, JJ„ concur in the result, without writing.

BRYAN, J., dissents, with writing, which PITTMAN, J., joins.

CRAWLEY, Presiding Judge,

concurring in the result.

In light of the well-settled principle that a trial court has the inherent power to interpret, implement, or enforce its own judgments, see Helms v. Helms’ Kennels, Inc., 646 So.2d 1343 (Ala.1994); and Hallman v. Hallman, 802 So.2d 1095 (Ala.Civ.App.2001), I believe it is unnecessary to reach the constitutional issues addressed in the main opinion.

Because the duty of á trial court in ruling on a motion for a summary judgment is not to try issues of fact but to determine whether such issues exist, see generally, Annot., Admissibility of Oral Testimony at State Summary Judgment Hearing, 53 A.L.R.4th 527 (1987), it is difficult to see why the trial court conducted an ore tenus proceeding in this case. Nevertheless, I agree with the main opinion that the basis for the court’s ruling on the motion for a summary judgment was a question of law: whether the court had the power to enforce the divorce judgment after 45 days following its entry.

BRYAN, Judge,

dissenting.

On original submission, the wife presented argument challenging one of the grounds upon which the husband based his summary-judgment motion, i.e., the ground that the divorce judgment limited the trial court’s jurisdiction to a period of 45 days following the entry of the divorce judgment. However, the wife did not present argument challenging the second ground upon which the husband based his summary-judgment motion, i.e., the ground that the wife’s claim for a rule nisi was barred because it was a compulsory counterclaim that she was obligated to plead in response to the husband’s December 18, 2002, motion.

Because “an appellate court[, subject to exceptions not applicable in this case,] can affirm a summary judgment on any valid argument, regardless of whether the argument was presented to, considered by, or even rejected by the trial court,” Ex parte Ryals, 773 So.2d 1011, 1013 (Ala.2000) (citing Ex parte Wiginton, 743 So.2d 1071 (Ala.1999), and Smith v. Equifax Servs., Inc., 537 So.2d 463 (Ala.1988)) (emphasis added), the wife, in order to win a reversal of the summary judgment, was obligated to present not only argument successfully challenging the first ground of the summary-judgment motion but also argument successfully challenging the second ground of the summary-judgment motion. See Foreman v. State, 676 So.2d 303 (Ala.1995), overruled on other grounds by Willis v. University of North Alabama, 826 So.2d 118 (Ala.2002) (affirming a summary judgment in favor of two of the three appellees because, on appeal, the appellant presented argument challenging only one of the two grounds upon which those ap-pellees had based their summary-judgment motion).

I note that the main opinion does not address the merits of the second ground upon which the husband based his summary-judgment motion. If it did so, it would violate the well-established principle that “it is not the function of an appellate court to create, research, or argue an issue on behalf of the appellant.” Gonzalez v. Blue Cross/Blue Shield of Alabama, 760 So.2d 878, 883 (Ala.Civ.App.2000).

Therefore, because the wife presented argument successfully challenging only one of the two grounds upon which the husband based his summary-judgment motion, I respectfully dissent from the grant of the wife’s application for rehearing and the reversal of the summary judgment.

PITTMAN, J., concurs.

      . Alabama courts have likened the due-process provision of Ala. Const, of 1901, Art. 1, § 13, to the Due Process Clause of the Fourteenth Amendment of the United States Constitution. See Moore v. Ray Sumlin Constr. Co., 570 So.2d 573, 575 (Ala.1990) (concluding that remanding for a new trial without first giving the appellee the opportunity to explain its race-neutral peremptory challenges would violate both the Due Process Clause of the Fourteenth Amendment and Art. 1, § 13, Ala. Const, of 1901).


source: Caselaw Access Project

author: PITTMAN, Judge.

license: Public Domain

text:
    Robert JERNIGAN d/b/a Jernigan Construction Company v. Charles HAPPOLDT and Melinda Happoldt.
    2050123.
    Court of Civil Appeals of Alabama.
    Feb. 16, 2007.
    Rehearing Denied April 20, 2007.
    Certiorari Denied Aug. 17, 2007 Alabama Supreme Court 1061116.

      Charles R. Godwin and Timothy J. God-win, Atmore, for appellant.
    Everette A. Price, Jr., Brewton, for ap-pellees.
   PITTMAN, Judge.

This appeal concerns the availability of prejudgment interest as an element of recoverable damages in the context of a dispute involving a construction contract.

Robert Jernigan, a sole proprietor who does business under the trade name “Jer-nigan Construction Company,” entered into an agreement in November 2001 with Charles Happoldt and Melinda Happoldt under which Jernigan agreed to construct a new residence for the Happoldts. According to the parties’ written contract, payment for Jernigan’s work was to be made partially on a fixed-wage basis and partially on a “cost-plus” basis, with Jerni-gan being responsible for providing the Happoldts with copies of bills with respect to his materials and his subcontractors’ charges and with the Happoldts being responsible for paying each of those bills plus a 10% additional charge. Although Jernigan estimated that the Happoldts’ residence would cost $151,400 to build, there is no indication in the contract documents that Jernigan agreed to be bound by that figure, and the evidence in the record indicates that a number of changes were made to the original plan of the residence during its construction.

At the end of each month for the first five months after Jernigan began performance under the contract, Jernigan gave the Happoldts a copy of his bills and a copy of the time sheet listing the hours that Jerni-gan’s personnel had worked, after which the Happoldts wrote checks to Jernigan in satisfaction of those obligations; the sum of those payments exceeded $100,000. However, when Jernigan presented bills to the Happoldts in March 2002, the Hap-poldts represented to Jernigan that “they were out of money,” after which Jernigan briefly discontinued work. The Happoldts then told Jernigan that they wanted him to complete his performance under the contract and stated that they would pay him from the proceeds of a long-term mortgage loan (to be secured by the residence) that they would be obtaining after the residence was completed; Jernigan then resumed his work on the residence and his presentation of bills to the Happoldts. On July 5, 2002, after all work had been performed on the residence except for installation of carpeting, roofing materials, and siding, and Jernigan had presented all of his bills (totaling $41,929.38) to the Hap-poldts for payment without protest, Jerni-gan was informed by Charles Happoldt that the Happoldts would be occupying the nearly completed residence, that the final mortgage loan would soon be closed, and that Jernigan would be paid immediately thereafter. However, one week later, Charles Happoldt told Jernigan that the Happoldts “did not have the money” and would not pay Jernigan any further sums.

In September 2002, Jernigan filed in the Escambia Circuit Court a civil action naming as defendants the Happoldts, their mortgage company, and a paint supplier that had allegedly supplied materials directly to the Happoldts but had charged Jernigan for those materials. As to the Happoldts, Jernigan asserted fraud, breach-of-contract, and conspiracy claims and sought the imposition of a lien upon the real property upon which the residence had been constructed. The Happoldts asserted a counterclaim against Jernigan sounding in fraud and breach of contract, and the paint supplier asserted a counterclaim against Jernigan, a cross-claim against the Happoldts, and a third-party claim against Jernigan’s son. The claims asserted by and against the paint supplier were dismissed pursuant to a settlement agreement, and a nonfinal summary judgment was entered as to all claims asserted by Jernigan against the mortgage company, leaving only Jernigan’s claims and the Happoldts’ counterclaims pending.

Although the case was placed on the trial court’s administrative docket in March 2004 after the Happoldts had sought relief in the United States Bankruptcy Court for the Southern District of Alabama, the trial court subsequently set the case for trial after the bankruptcy court entered an order lifting its automatic stay. After an ore tenus proceeding, the trial court entered a judgment on September 6, 2005, generally in favor of Jernigan. In that judgment, the Happoldts were directed to pay Jernigan $37,488.31 plus 12% interest on that amount, and a lien on the pertinent real property was imposed. The judgment also expressly denied the Hap-poldts’ counterclaims.

On September 7, 2005, the Happoldts filed a “motion to reconsider” the judgment entered on the previous day; in that motion, the Happoldts asserted that a copy of the judgment (as proposed by counsel for Jernigan) had been sent via facsimile transmission to their attorney on September 2, 2005, but that the Hap-poldts’ attorney had not had an opportunity to review the proposed judgment and state objections to its contents before its entry. The Happoldts argued that “additional time [was] required to review and research the judgment and [that] the judgment [was due to] be set aside.” Counsel for the Happoldts then submitted a proposed “Order to Vacate Judgment” deleting the references to prejudgment interest — deletions to which Jernigan objected. Nonetheless, the trial court entered the proposed postjudgment order on September 29, 2005; that order vacated the September 6, 2005, judgment and replaced it with a new judgment that was identical to the original judgment in all respects except that no prejudgment interest was awarded.

Jernigan appeals from the trial court’s substituted judgment, challenging the deletion of the prejudgment-interest provision from the trial court’s original judgment. As to the applicable standard of appellate review, we agree with Jerni-gan that because the trial court’s determination concerning the availability of prejudgment interest is a legal one, focusing on the application of law to the facts rather than the resolution of factual disputes, no presumption of correctness applies to that determination, and we review it de novo. Continental Cas. Co. v. Plantation Pipe Line Co., 902 So.2d 36, 45 (Ala.2004).

Section 8-8-8, Ala.Code 1975, provides:

“All contracts, express or implied, for the payment of money, or other thing, or for the performance of any act or duty bear interest from the day such money, or thing, estimating it at its money value, should have been paid, or such act, estimating the compensation therefor in money, performed.”

We noted in Wood v. Central Bank of the South, 435 So.2d 1287 (Ala.Civ.App.1982), that “[u]nder this statute, pre-judgment interest runs ... on such sums as are certain or are capable of being made certain ” (emphasis added), and that “[tjhree general rules have been laid out for determining the allowance of interest in Alabama: ‘(1) The amount due must be certain; (2) the time when it is due must be certain; (3) the amount due and time of payment must be known to the debtor.’ ” 435 So.2d at 1291 (quoting Grand Bay Land Co. v. Simpson, 207 Ala. 303, 306, 92 So. 789, 791 (1922)).

The record in this ease reveals that the parties entered into an express written contract under which Jernigan was to receive wage payments of $19 per hour for his own work, $16 per hour for work performed by carpenters he employed, and $9 per hour for work performed by his other laborers. Jernigan was also contractually bound to “provide the [Happoldts] with proof [of] bills for material and subcontractor work with an additional 10% of [the] total [to be] added to each bill.” The written contract envisioned that Jernigan would be paid as to wages every two weeks and as to material and subcontractor work no later than the eighth day of each month. Although the parties appeared to have adhered to that presentment and payment schedule for the first few months of the construction, the Hap-poldts’ representation in March 2002 that they were “out of money” appears to have ended that practice. In contrast, when Jernigan resumed work on the residence, he did so on the stated basis that he would be paid the sums owed him after the residence was completed from the proceeds of the Happoldts’ long-term mortgage loan. Although Jernigan presented final bills to the Happoldts upon their moving into the house, Jernigan received no further payment from the Happoldts.

The trial court’s reversal of its position with respect to its award of prejudgment interest may stem from its view, expressed during a colloquy during trial, that prejudgment interest would not be awardable except pursuant to a written contract. We question the application of that view to the facts of this case, in which the parties undisputedly did enter into a written contract but later orally agreed to modify the Happoldts’ payment obligations under that contract. It is well settled that “[a] written contract may, in the absence of statutory provisions requiring a writing, be modified by a subsequent oral agreement,” Winegardner v. Burns, 361 So.2d 1054, 1057 (Ala.1978), and there is no contention in this case that the parties’ contract was one that, by statute, could be modified only in writing. Moreover, by its plain terms, § 8-8-8 speaks to all contracts, whether express or implied, and contains no language that would bar its application to only written contracts.

The Happoldts contend that Jernigan’s damages were not capable of being made certain at the time of the Happoldts’ breach of the contract, relying upon evidence tending to show that Jernigan’s $151,400 cost estimate was merely a “ballpark figure” that did not show precisely what the residence would cost to build and that was based upon inexact prices. However, as we have noted, the Happoldts initially agreed to pay specified wages plus 110% of subcontractor charges and material expenses that were billed by Jernigan on a monthly basis; that obligation was modified only as to the due date of payment to Jernigan by the parties’ subsequent agreement for Jernigan to accept payment from the Happoldts’ mortgage-loan proceeds. At the time that Jernigan presented the Happoldts with invoices for labor and materials expended as to the residence after Jernigan returned to work after March 2002, the Happoldts could have determined that Jernigan would have been damaged in the precise amount of those invoices plus 10% by a failure or refusal to pay. In this case, then, each of the prerequisites for awarding prejudgment interest — certainty of the amount due and the time when it is due and knowledge of the debtor as to the amount due and the time of payment — is present.

We conclude that the trial court erred in denying prejudgment interest on the damages awarded to Jernigan. The judgment is reversed and the cause is remanded for the trial court to calculate prejudgment interest on the damages amount ($37,-488.31) from the date of the Happoldts’ loan closing in July 2002, at the statutory interest rate of 6% per annum. See Ala. Code 1975, § 8-8-1 (“[ejxcept as otherwise provided by law, the maximum rate of interest upon the loan or forbearance of money, goods, or things in action, except by written contract is $6 upon $100 for one year”), and Burgess Mining & Constr. Corp. v. Lees, 440 So.2d 321, 338 (Ala.1983).

REVERSED AND REMANDED WITH INSTRUCTIONS.

THOMPSON, P.J., and BRYAN, THOMAS, and MOORE, JJ., concur.

      . "A contract is express if its terms are stated by the parties, either orally or in writing, and it is implied if its terms are not so stated!, z.e.,] some or all of the terms are inferred from the conduct of the parties and the circumstances of the case.” 17A Am.Jur.2d Contracts § 12 (2004) (footnotes omitted).


author: THOMPSON, Presiding Judge. MOORE, Judge,

text:
    Julie DOWNS v. Denise Ann DOWNS.
    2050964.
    Court of Civil Appeals of Alabama.
    April 13, 2007.
    Rehearing Denied June 15, 2007.
    Certiorari Denied Aug. 31, 2007 Alabama Supreme Court 1061380.

      Gerald D. Colvin, Jr., and Lucy A. Hester of Bishop, Colvin, Johnson & Kent, Birmingham, for appellant.
    Will Beard and Jim Beard of Beard & Beard, Guntersville, for appellee.
   THOMPSON, Presiding Judge.

William M. Downs (“the husband”) and Denise Ann Downs (“the first wife”) were divorced by a November 21, 1995, judgment of the trial court. That divorce judgment incorporated an agreement reached by the parties that provided, in pertinent part:

“The husband and [the first] wife agree that they will maintain the $75,000 life-insurance policy presently in force with Allstate [Life] Insurance Company by each paying one-half the monthly premiums until such time as said policy is paid- up. The parties agree that the husband will pay his one-half [of] the premium in the amount of $35 per month to the [first] wife and that the [first] wife will pay the total premium when due.”

At the time of the divorce judgment, the first wife was listed as the beneficiary of the life insurance policy (“the life insurance policy”) issued by Allstate Life Insurance Company (“Allstate”). After the husband and the first wife divorced, the husband married' Julie Downs (“the second wife”). In October 2004, the husband changed the beneficiary of the life insurance policy to the second wife, rather than the first wife. It is undisputed that the husband and the first wife continued to comply with the payment portion of the above-quoted provision (hereinafter “the relevant provision”) of the divorce judgment by each paying ⅜ of the premiums until the husband’s death on December 20, 2004. Following the husband’s death, the first wife and the second wife each contacted Allstate to assert a claim to the proceeds of the life insurance policy.

Faced with the competing claims, Allstate filed in the trial court a complaint for interpleader, paying the proceeds of the insurance policy plus interest into the trial court. In its complaint, Allstate requested, among other things, that the trial court determine the lawful beneficiary of the insurance policy and that it be discharged from any further liability in the matter and dismissed from -the action. The first wife and the second wife each filed motions for a summary judgment in, which each asserted a claim to the proceeds of the life insurance policy. .

In August 2005, the trial court entered an order dismissing Allstate as a party to the action. See Rule 22(b), Ala. R. Civ. P. (“Any party seeking interpleader ... may deposit with the court the amount claimed, ... and the court may thereupon order such party discharged from liability as to such claims, and the action continued as between the claimants of such money or property.”). The trial court certified that order as final pursuant to Rule 54(b), Ala. R. Civ. P., ,and neither the first wife nor the second wife appealed that order. Allstate is not a party to this appeal.

Also in August 2005, the trial court received oral arguments on the remaining parties’ claims to the proceeds of the life insurance policy. On June 21, 2006, the trial court entered a judgment in favor of the first wife. In ruling in favor of the first wife, the trial court found that the relevant provision of the divorce judgment restricted the husband from altering the beneficiary of the life insurance policy. The second wife timely appealed, challenging that conclusion. The appeal was transferred to this court by our supreme court pursuant to § 12-2-7, Ala.Code 1975.

The pertinent facts of this case, set forth above, are not in dispute. The issue to be resolved in this appeal is whether the trial court correctly concluded that the relevant provision of the divorce judgment prohibited the husband from changing the designation of the beneficiary of the life insurance policy from the first wife to the second wife.

“The trial court based its decision on the pleadings, documentary and other evidence introduced at the hearing on the motion for a summary judgment, and arguments of counsel. ‘[W]hen a trial court sits in judgment on facts that are undisputed, an appellate court will . determine whether the trial court misapplied the law to those undisputed facts.’ Craig Constr. Co. v. Hendrix, 568 So.2d 752, 756 (Ala.1990).... ‘“[0]n appeal, the ruling on a question of law carries no presumption of correctness, and this Court’s review is de novo.”’ Rogers Found. Repair, Inc. v. Powell, 748 So.2d 869, 871 (Ala.1999) (quoting Ex parte Graham, 702 So.2d 1215, 1221 (Ala.1997)). See also Hacker v. Carlisle, 388 So.2d 947, 950 (Ala.1980) (trial court’s judgment is afforded no presumption of correctness in a case tried without a jury on stipulations, briefs, and documentary evidence and in which no testimony was admitted on any material matter).”

Moss v. Williams, 822 So.2d 392, 394-95 (Ala.2001).

We note that the appellate courts of this state have considered cases in which a provision of a divorce judgment pertaining to maintaining a life insurance policy specified that the former spouse or the parties’ children remain primary beneficiaries or irrevocable beneficiaries of the policy. See Williams v. Williams, 276 Ala. 43, 158 So.2d 901 (1963); Brown v. Brown, 604 So.2d 365 (Ala.1992); McKinnis v. McKinnis, 564 So.2d 451, 452 (Ala.Civ.App.1990); and Posey v. Prudential Ins. Co., 383 So.2d 849 (Ala.Civ.App.1980). In this case, however, the relevant provision does not, through its express language, make reference to maintaining a specific beneficiary. Therefore, the second wife contends that the language of the relevant provision requires only that the parties “maintain” the life insurance policy merely by paying the premiums and that it did not restrict the husband from altering the designation of the beneficiary of the policy. In response, the first wife argues that the relevant provision clearly required the husband and the first wife to preserve the life insurance policy in the same state in which it existed at the time the divorce judgment was en7 tered and, therefore, that she was the only lawful beneficiary under the life insurance policy.

In arguing their positions before this court, both parties contend that the relevant provision is clear and unambiguous. In its June 21, 2006, judgment, the trial court concluded that the provision was unambiguous. “The mere fact that adverse parties contend for different constructions does not of itself force the conclusion that the disputed language is ambiguous.” Antram v. Stuyvesant Life Ins. Co., 291 Ala. 716, 720, 287 So.2d 837, 840 (1973).

“A judgment of divorce is to be interpreted or construed like other written instruments.” Sartin v. Sartin, 678 So.2d 1181, 1183 (Ala.Civ.App.1996).

“Whether an agreement is ambiguous is a question of law.... Terry Cove North v. Baldwin County Sewer Authority, Inc., 480 So.2d 1171 (Ala.1985). When the agreement is reasonably susceptible to more than one meaning, an ambiguity exists. The instrument is unambiguous if only one reasonable meaning clearly emerges. Blue Cross & Blue Shield of Alabama v. Beck, 523 So.2d 121 (Ala.Civ.App.1988). The words of an agreement are to be given their ordinary meaning, and the intention of the parties is to be derived from the provisions of the contract. Smith v. Citicorp Person-to-Person Financial Centers, Inc., 477 So.2d 308 (Ala.1985). When the provisions are certain and clear, it is the duty of the trial court to analyze and determine the meaning of the provisions. Pate v. Merchants National Bank of Mobile, 428 So.2d 37 (Ala.1983).”

Vainrib v. Downey, 565 So.2d 647, 648 (Ala.Civ.App.1990). “Consistent with the foregoing principles, our cases hold that a trial court has the inherent authority to interpret, implement, or enforce its own judgments.” Jardine v. Jardine, 918 So.2d 127, 131 (Ala.Civ.App.2005).

In determining that the relevant provision of the divorce judgment was unambiguous, the trial court concluded:

“[T]he court first looks to the applicable provision of the separation agreement and the plain language therein. The wording of said provision states that, the husband and [the first] wife agree that they will maintain the insurance policy presently in force. As defined in Black’s Law Dictionary, to ‘maintain’ means to ‘hold or preserve in any particular state of condition; keep from change.’ ”

In reaching its ultimate determination with regard to the merits, the trial court concluded:

“That [the husband] did not ‘maintain’ the life-insurance policy in its existing state as it was when he and [the first wife] entered into their separation agreement. [The husband] did cause the policy’s beneficiary to be changed to reflect the name of [the second wife]. The separation agreement clearly mandates that the changing of any of the policy’s provisions, including that of the named beneficiaries, was prohibited. Upon the signing of the separation agreement between [the husband] and [the first wife], each of them became vested with an equitable interest in the policy and neither of them retained the power to change the then-named beneficiaries.”

The second wife advocates that we apply other definitions from Black’s Law Dictionary of the word “maintain” instead of the definition cited by the trial court in its judgment. However, in interpreting the relevant provision, the word “maintain” is not to be read in isolation, and the entire provision must be examined in determining its meaning. This court has explained:

“[I]n Horsley v. Horsley, 390 So.2d 1058 (Ala.Civ.App.), cert. denied, 390 So.2d 1060 (Ala.1980), we stated the rule for construction of judgments when we said:
“ ‘Judgments and decrees are to be construed like other written instruments, and, if there is any uncertainty, the court must construe them so as to express the intent of the parties. Price v. Price, Ala.Civ.App., 360 So.2d 340 (1978); Reeder v. Reeder, Ala. Civ.App., 356 So.2d 202 (1978). Such intent can be derived from the provisions of the agreement. Reeder v. Reeder, supra.
“Thus, where a judgment can be construed in such a manner as to express the intention of the parties, it must stand.”

Epperson v. Epperson, 437 So.2d 571, 572 (Ala.Civ.App.1983) (emphasis added). Further, “ ‘[a]mbiguities will not be inserted into contracts [ (or judgments) ] by strained and twisted meaning where no such ambiguities exist.’ ” Ex parte Awtrey Realty Co., 827 So.2d 104, 108 (Ala.2001) (quoting P & S Bus., Inc. v. South Cent. Bell Tel. Co., 466 So.2d 928, 931 (Ala.1985), citing Michigan Mut. Liab. Co. v. Carroll, 271 Ala. 404, 123 So.2d 920 (1960)).

In this case, the clear language of the relevant provision of the divorce judgment requires that the husband and the first wife “maintain the $75,000 life-insurance policy presently in force with Allstate-” (Emphasis added.) The provision specifies that the policy will be maintained by the husband and the first wife sharing the cost of the premiums. Importantly, although the husband and the first wife were to share the cost of the premiums, the relevant provision specified that after receiving the husband’s share of the premium for the life insurance policy, the first wife was to pay the total premium to the insurance company. Thus, the specification that the first wife be in charge of ensuring that the policy premiums be paid indicates that the trial court and the parties intended to allow the first wife to protect and maintain her interest in the policy by ensuring that the premiums were in fact paid and were paid in a timely fashion. It is difficult to accept that the first wife would agree, or the trial court would order her, to be the party in charge of preserving the insurance policy on the husband’s life but allow for the possibility that her doing so would inure to the benefit of a different beneficiary, such as the second wife. In interpreting a judgment, “[w]e are free to review ‘all the relevant circumstances surrounding the judgment,’ and ‘the entire judgment ... should be read as a whole in the light of all the circumstances as well as of the conduct of the parties.’ ” Boykin v. Law, 946 So.2d 838, 848 (Ala.2006) (quoting Hanson v. Hearn, 521 So.2d 953, 955 (Ala.1988)).

In this case, the trial court determined that the relevant provision confined the husband to maintaining the policy, including the designation of the beneficiary, as it existed at the time of the divorce judgment. “Such a construction is a reasonable reading of the parties’ intent.” Gilliland v. Gilliland, 422 So.2d 299, 301 (Ala.Civ.App.1982). We affirm the trial court’s determination that the relevant provision of the divorce judgment unambiguously prohibited the alteration of the designation of the beneficiary from that that existed at the time of the divorce judgment. Accordingly, the trial court’s judgment in favor of the first wife is affirmed.

AFFIRMED.

PITTMAN and BRYAN, JJ., concur.

MOORE, J., dissents, with writing, which THOMAS, J., joins.

MOORE, Judge,

dissenting.

I respectfully dissent. The clause in the 1995 divorce judgment at issue in this case provides:

“The husband and [the first] wife agree that they will maintain the $75,000 life-insurance policy presently in force with Allstate Insurance Company by each paying one-half the monthly premium until such time as said policy is paid up. The parties agree that the husband will pay his one-half the premium in the amount of $35.00 per month to the [first] wife and that the [first] wife will pay the total premium when due.”

It is undisputed that at the time of the entry of the divorce judgment the first wife was listed as the beneficiary in the case of the husband’s death; however, in 2004, the husband changed the beneficiary to his then current wife.

The sole issue to be decided in this ease is whether the divorce judgment precluded the husband from changing beneficiaries. While the appellate courts of this state have issued numerous opinions finding that a divorce judgment vested the ex-spouse or children with an equitable interest in the proceeds of a life insurance policy that prevented a change of beneficiary without their consent, in every one of those cases the divorce judgment unambiguously declared that the life insurance policy was to be maintained for the benefit of the ex-spouse or children. See, e.g., McKinnis v. McKinnis, 564 So.2d 451, 452 (Ala.Civ.App.1990) (construing divorce judgment ordering husband to “ ‘name the [wife] as the primary beneficiary on his existing life insurance policy ... so long as the [wife] shall live or remain unmarried’ ”); Williams v. Williams, 276 Ala. 43, 46, 158 So.2d 901, 903 (1963) (construing divorce judgment requiring husband to make minor children “irrevocable beneficiaries” of life-insurance policy and to keep said insurance in effect during the minority of the children); Brown v. Brown, 604 So.2d 365 (Ala.1992) (divorce judgment ordered husband to name child “irrevocable beneficiary” of life insurance policy); Frawley v. U.S. Steel Mining Co., 496 So.2d 731 (Ala.1986) (construing agreement to make minor child “irrevocable beneficiary”); and Posey v. Prudential Ins. Co. of America, 383 So.2d 849 (Ala.Civ.App.1980) (declaring effect of divorce judgment requiring husband to designate minor child “irrevocable beneficiary” of life insurance policy).

Unlike the above-cited cases, in the present case the language used in the divorce judgment makes no mention of the beneficiary of the policy and does not specifically indicate that the beneficiary designation cannot be changed. Instead, the language merely requires each party to pay a portion of the insurance premiums. Also unlike the above-cited cases, one cannot infer from the language of the divorce judgment in this case that the parties intended the designation of the beneficiary to be irrevocable. Although no particular language must be used to evidence an intent to make a beneficiary designation irrevocable, the language must indicate in some manner that the policy is to be maintained for the benefit of the party claiming a right to its proceeds.

In this case, the trial court interpreted the life insurance clause in the parties’ divorce judgment to require the parties to leave the policy terms, including the designation of beneficiaries, unchanged, based on the definition of “maintain” in the sixth edition of Black’s Law Dictionary as to “hold or preserve in any particular state or condition; keep from change.” Of course, the proper interpretation of the terms of an unambiguous divorce judgment is a question of law to which no presumption of correctness applies. Laney v. Laney, 833 So.2d 644, 646 (Ala.Civ.App.2002). Hence, this court is to give no deference to the trial court’s interpretation.

At the time the divorce judgment was entered, the sixth edition of Black’s Law Dictionary more fully defined “maintain” as follows:

“The term is variously defined as acts of repairs and other acts to prevent a decline, lapse or cessation from existing state or condition; bear the expense of; carry on; commence; continue; furnish means for subsistence or existence of; hold; hold or keep in an existing state or condition; hold or preserve in any particular state or condition; keep from change; keep from falling, declining, or ceasing; keep in existence or continuance; keep in force; keep in good order; keep in proper condition; keep in repair; keep up; preserve; preserve from lapse, decline, failure, or cessation; provide for; rebuild; repair; replace; supply with means of support; supply with what is needed; support; sustain; uphold.”

Black’s Law Dictionary 953 (6th ed.1990) (emphasis added). In isolation, the term “maintain” carries multiple meanings, including the definition ascribed by the trial court and the meaning proffered by the second wife. However, in this case the agreement does not simply state that the parties would “maintain” the policy. It says the parties will maintain the policy “by each paying one-half the monthly premium until such time as said policy is paid up.” This language indicates that the parties intended that they would “maintain” the policy by each bearing the expense of the policy.

The majority stresses that the divorce judgment states that the parties will “maintain the ... life-insurance policy presently in force.” (Emphasis added.) However, this language is nothing more than a description of the life insurance policy at issue. The language “presently in force” simply means the policy that is currently covering the risk of loss of life. It does not mean that the parties are to maintain the terms of the policy “as presently in force,” which language would support the conclusion reached by the majority-

In Hanner v. Metro Bank, 952 So.2d 1056 (Ala.2006) (opinion on return to remand), our Supreme Court indicated that a minor child obtained a vested interest in a life insurance policy when the divorce judgment required the father “to maintain his life insurance policy and to name [the minor child] as the irrevocable beneficiary.” 952 So.2d at 1063. Although the Court did not have the precise issue in this case before it, its recitation of the facts indicated that the Court considered the act of maintaining the policy to be different than the act of naming the child as an irrevocable beneficiary.

The Alabama bench and bar have clearly recognized a distinction between maintaining a policy “in force” and designating an irrevocable beneficiary. See Ray v. Ohio Nat’l Life Ins. Co., 537 So.2d 915-16 (Ala.1989) (considering divorce agreement that required the husband to “ ‘keep his current $50,000.00 life insurance policy ... in full force and effect with the minor children of the parties as primary beneficiaries’ ” and that required the wife to “ ‘keep her current $10,000.00 life insurance policy in full force and effect with minor children of the parties as primary beneficiaries thereon’ ”); Berryman v. Adams, 883 So.2d 214, 215 (Ala.Civ.App.2003) (quoting divorce judgment requiring husband to “ ‘maintain and keep paid up to date a policy of insurance on his life ..., with the children named as irrevocable beneficiaries’ ”); Slaton v. Slaton, 455 So.2d 34, 34-35 (Ala.Civ.App.1984) (noting clause that required husband to maintain and keep in force life insurance policy “ ‘by paying the premium thereon when due ... and ... irrevocably designate as primary beneficiary’ ” the wife); Whitten v. Whitten, 592 So.2d 183, 184 (Ala.1991) (“ ‘[father] shall keep in full force and effect all life insurance on his life with the parties’ minor child as the irrevocable beneficiaries [sic] of such insurance’ ”); and Ezell v. Ezell, 486 So.2d 446, 448 (Ala.Civ.App.1986) (“ ‘The parties agree that the Plaintiff shall pay the various premiums on his life insurance policies currently in force and that the Plaintiff shall be named as beneficiary on said policies and receive the proceeds, if any, thereto.’ ”). In all of these cases, the parties or the trial court required one or both of the spouses both to maintain a policy of life insurance presently in force and to designate an irrevocable beneficiary. This practice devolves from the understanding that maintaining a policy of life insurance and designating an irrevocable beneficiary are two different requirements. Because the clause at issue in this case does not mention the second requirement, it cannot reasonably be read to contain that second requirement.

The majority nevertheless asserts that this court should consider the circumstances surrounding the judgment as well as the conduct of the parties. However, an appellate court may only consider those factors when it construes the trial court’s judgment. Boykin v. Law, 946 So.2d 838, 848 (Ala.2006). When faced with an unambiguous provision in a judgment, the court cannot look beyond the four corners of the judgment, see Ex parte Littlepage, 796 So.2d 298 (Ala.2001), but must apply the plain meaning of the words without construing them. See Wall v. Borosky, 850 So.2d 351 (Ala.Civ.App.2002).

Relying on its right to review the entire circumstances of the judgment, the majority finds it illogical and inconceivable that the first wife would agree, and the trial court would order her, to pay an equal share of the premiums on the life insurance policy at issue without securing her right to its proceeds. This argument overlooks the fact that the life insurance policy also insured the life of the first wife and the parties’ children and that the first wife was designated the primary beneficiary in case of the death of one of the insured children. Regardless of these facts, by taking this position, the majority is looking into the logic and reasoning of the first wife and the trial court. In the case of an unambiguous contract, like a divorce settlement, the objective, not subjective, intent of the parties controls, and that intent is derived from the plain meaning of the words used. See Murray v. Alfab, Inc., 601 So.2d 878 (Ala.1992).

I agree that the language in the settlement agreement and the divorce judgment is unambiguous, but I disagree that this language prevented the husband from changing beneficiaries. Therefore, I respectfully dissent.

THOMAS, J., concurs.


text:
    Marcus Neal LEGG v. FORTIS INSURANCE COMPANY and John Alden Life Insurance Company.
    2060550.
    Court of Civil Appeals of Alabama.
    June 29, 2007.
    James R. Howison of Lambert & Howi-son, P.C., Huntsville, for appellant.
    Jennifer M. Busby, Richard C. Keller, and R. Frank Springfield of Burr & For-man, LLP, Birmingham, for appellees.
   PITTMAN, Judge.

Marcus Neal Legg appeals from a summary judgment entered by the Madison Circuit Court on his claims against Fortis Insurance Company (“Fortis”) and John Alden Life Insurance Company (“John Alden”) of breach of contract and bad-faith refusal to pay an allegedly valid insurance claim. We affirm.

The pertinent facts in this case are undisputed. Therefore, we review the trial court’s application of the law to the facts to determine whether Fortis and John Alden were entitled to a judgment as a matter of law. See Carpenter v. Davis, 688 So.2d 256, 258 (Ala.1997). No presumption of correctness attaches to the decision of a trial court on a summary-judgment motion, and our review is de novo. See Gossett v. Twin County Cable T.V., Inc., 594 So.2d 635, 638 (Ala.1992).

The record reveals that on June 24, 2003, Legg executed a “Short Term Medical Enrollment Form” seeking short-term medical-insurance coverage from John Alden that would indemnify him with respect to particular medical expenses he might incur; on that form, Legg elected to pay the required initial premium of $161.96 and subsequent monthly premiums of $121.96 by means of personal checks rather than via credit card. In response, John Alden issued Legg a “Short Term Medical Certificate” providing medical-insurance coverage for a maximum period of 185 days; that certificate indicated that the insurance coverage was “administered” by Fortis. John Alden also issued Legg monthly premium-payment coupons directing that premium payments were to be made to Fortis at a post-office box in Milwaukee, Wisconsin, owned by U.S. Bank.

Under Alabama law, “disability insurance” includes insurance of natural persons against, among other things, “expense resulting from sickness.” Ala.Code 1975, § 27-5-4. In Alabama, disability-insurance policies, such as the short-term health-insurance certificate issued to Legg, must contain certain provisions that are required by statute. See Ala.Code 1975, § 27-19-3(a). Among those mandatory provisions is one providing for a “grace period” for delinquent premium payments. See Ala.Code 1975, § 27-19-6. Under § 27-19-6, a disability-insurance policy with a monthly premium must contain a provision that “ ‘[a] grace period of ... not less than ... “10” ... days will be granted for the payment of each premium falling due after the first premium’ ” and that during the grace period “ ‘the policy shall continue in force.’ ” Id. However, in contrast to various statutes pertaining to mandatory provisions of various policies of “life insurance” (see Ala.Code 1975, § 27-5-2), a disability-insurance policy need not contain language permitting deduction of unpaid premium payments from benefits otherwise payable under a particular policy if a claim should arise during the grace period. Compare AIa.Code 1975, § 27-19-6, with Ala.Code 1975, §§ 27-15-7, 27-16-4, and 27-17-3.

In response to Legg’s intent to pay his premium on a monthly basis, an “Optional Monthly Premium Rider” amending the short-term health-insurance certificate was issued to Legg. That rider reiterated that the certificate was “billed monthly for [y]our convenience and to make the payments more affordable” and that Legg’s insurance protection would remain in force for up to 185 days “as long as you pay your monthly premium to John Alden Life Insurance Company or its administrator as it becomes due.” Also, in conformity with § 27-19-6, the rider contained the following provision:

“GRACE PERIOD: There is a grace period of 10 days for the payment of each premium due after the first premium. The policy or certificate will stay in force during this grace period. If the premium is not received at Our Home Office by the end of the grace period, this policy or certificate will lapse.”

(Emphasis added.)

It is undisputed that Legg made monthly premium payments in a timely manner so as to extend his coverage through at least October 28, 2003, and that a monthly premium payment was due on October 29, 2003. Legg did not make that payment on or before its due date, thereby triggering the 10-day grace period as set forth in the rider to the certifícate and as mandated by § 27-19-6; that period extended to November 8, 2003. On October 31, 2003, during the grace period, Legg underwent hernia surgery and incurred medical expenses incident thereto. Legg testified at his deposition that on November 7, 2003, one day before the expiration of the grace period, he sent a premium check via regular mail; however, it is undisputed that that check was not received until November 17, 2003, after the grace period had expired, and Legg admitted that he had no proof of having mailed the check. Fortis refunded that premium payment and a subsequent payment received from Legg on December 15, 2003, noting in its letters to Legg that the last date of coverage had been October 28, 2003, and that no premium payments had been received within 10 days of October 29, 2003. Moreover, Legg’s claim for medical benefits under the policy with respect to the October 31, 2003, surgery was denied on the basis that the certificate had lapsed.

Legg filed a two-count complaint in the trial court naming John Alden and Fortis as defendants. In that complaint, Legg asserted that the defendants had breached the certificate by failing to pay a claim for benefits arising out of the October 31, 2003, surgery and that the defendants had tortiously acted in bad faith in allegedly failing to investigate and pay that claim; he sought damages of $20,074.75 as to each count. The cause was removed to federal court, but it was later remanded. The defendants then filed a motion for a summary judgment, which was supported by excerpts from Legg’s deposition transcript, evidentiary exhibits submitted at that deposition, and an affidavit of one of Fortis’s supervisory employees. Legg filed a response in opposition, supported by his own affidavit. After a hearing, the trial court entered a summary judgment in favor of the defendants.

The fundamental question presented by the appeal, as framed by the parties’ submissions in connection with the defendants’ summary-judgment motion, is whether Legg’s claim for benefits as to his October 31, 2003, surgery was properly denied. Because that question is due to be answered in the affirmative as a matter of law, as is demonstrated in this opinion, the trial court did not err in entering its summary judgment.

A “grace period,” such as that mandated by § 27-19-6 and provided for under the rider to the certificate issued to Legg, is, at bottom, “[a] period of extra time allowed for taking some required action (such as making payment) without incurring the usual penalty for being late.” Black’s Law Dictionary 717 (8th ed.2004). Stated another way, a grace period allows an otherwise-tardy performance of an act to be legally effective as if it had been performed in a timely manner. However, as a noted treatise on the law of insurance notes, a provision for a grace period “does not change the date when the premium is due”; thus, “a grace provision does not contemplate free insurance, but is merely an extension of an opportunity to pay, and ultimate payment for the period is expected.” 5 Lee R. Russ & Thomas F. Segalla, Couch on Insurance § 76:57 (3d ed.1996). Couch on Insurance further points out that when a loss occurs during a grace period, “it is no bar to recovery that the premiums have not been paid, provided that they are paid prior to the expiration of the ... grace period, at least where such was the intent of the parties.” Id. at § 76:58. The prevailing rule can thus be summarized:

“A statute providing for a mandatory grace period protects an insured whose policy would otherwise lapse upon a failure to pay a premium when due, but if the insurance company does not receive the premium within the grace period, the policy lapses as of the date the premium was due or the policy expired, and the insurer may refuse to provide retroactive coverage.”

44 Am.Jur.2d Insurance § 841 (2003) (emphasis added and footnotes omitted); see also id. at § 843 (noting that other than as to life-insurance policies, insurers are not liable for any losses during grace periods when premiums are not paid or tendered during the pertinent grace period).

As the defendants point out in their brief on appeal, New York, like Alabama, requires the inclusion of a grace-period provision in health-insurance policies providing that such policies will “continue in force” during the applicable grace period; however, in Zaitschek v. Empire Blue Cross & Blue Shield, 166 Misc.2d 161, 632 N.Y.S.2d 434 (Civ.Ct.1995), aff'd, 172 Misc.2d 864, 662 N.Y.S.2d 171 (Sup.1997), New York’s grace-period statute was interpreted so as not to require an insurer to pay a health-insurance claim arising during a grace period when a premium payment was never paid. In Zaitschek, it was contended that the pertinent statute barred the insurer from “retroactively canceling [its] policy at the end of [the] grace period for nonpayment of [the] premium back to the date that the premium originally became due.” 166 Misc.2d at 164, 632 N.Y.S.2d at 435. That contention was, however, soundly rejected by the court in Zaitschek, which held that the grace period was provided “to give a policy-holder currently in arrears the opportunity to make a belated payment” and not in order to bestow “a free bonus month of insurance coverage added to every contract.” 166 Misc.2d at 164, 632 N.Y.S.2d at 436; accord Makastchian v. Oxford Health Plans, Inc., 281 A.D.2d 197, 198, 721 N.Y.S.2d 351, 352 (2001) (“it is only after grace period expires and premiums have not been paid that coverage terminates retroactively to the end of last month for which the subscriber did pay”).

On appeal, Legg cites, for the first time, a case decided by our predecessor court, Blue Cross-Blue Shield of Alabama v. Colquitt, 42 Ala.App. 471, 168 So.2d 251, cert. denied, 277 Ala. 696, 168 So.2d 256 (1964), that he contends supports the proposition that his claim was valid and should have been paid despite his failure to pay the premium due on October 29, 2003, because his claim arose during the grace period. We assume, without deciding, that Legg’s reliance upon Colquitt on appeal despite his failure to bring Colquitt to the attention of the trial court does not amount to an improper assertion of a new theory on appeal than that advanced by Legg in the trial court. See Home Indem. Co. v. Reed Equip. Co., 381 So.2d 45, 50 (Ala.1980) (“[t]he rule requiring adherence to the theory relied on below ... does not mean the parties are limited in the appellate court to the same reasons or arguments advanced in the lower court upon the matter or question in issue”); but cf. Kingvision Pay-Per-View, Ltd. v. Ayers, 886 So.2d 45, 50 n. 1 (Ala.2003) (refusing to consider argument that default judgment should be vacated because defendant adduced evidence satisfying three-factor analysis enunciated in Kirtland v. Fort Morgan Auth. Sewer Serv., Inc., 524 So.2d 600 (Ala.1988), when defendant did not cite Kirtland in the trial court nor specifically argue that its evidence satisfied the three-factor -analysis).

In Colquitt, an insured under one group policy of health insurance changed employers and requested a transfer from the former employer’s group to the new employer’s group, although the insured continued to remit premium payments through his former employer for several months. However, the insured failed to remit a premium payment due on February 15,1960. The pertinent insurance contract provided for a 10-day grace period and also provided that the insurer would not be liable for payment as to any hospital services rendered to an insured after the due date unless the premium was paid within the grace period. The Alabama Court of Appeals affirmed (conditioned upon a remittitur) a judgment in favor of the insured on his breach-of-contract claim, rejecting the insurer’s argument that no coverage was in effect:

“It is argued ... that the forfeiture clause of the contract came into operation because the premium due February 15 was never paid. The loss (to use insurance terminology) which occurred on February 20, it is argued, was after the expiry of the term of the policy. Under cases such as Inland Mutual Ins. Co. v. Hightower, 274 Ala. 52, 145 So.2d 422 [ (1962) ], a new consideration moving from the insured to the underwriter would be necessary to support an extension of the term of the contract.
“This would be valid except for the fact that the contract provides for a ten-day grace period. Our courts are committed to the rule that when a loss occurs within the grace period, giving rise to an obligation by the underwriter to the insured for an unencumbered sum at least equal to the unpaid premium, 'then the premium is deemed to have been paid and the term of the policy is appropriately extended. McMaster v. New York Life Ins. Co., 183 U.S. 25, 22 S.Ct. 10, 46 L.Ed. 64 [ (1901) ]; Kubala v. United States, 5 Cir., 210 F.2d 943 [ (1954) ], citing with approval United States v. Morrell, 4 Cir., 204 F.2d 490 [ (1953) ]; Cilek v. New York Life Ins. Co., 97 Neb. 56, 149 N.W. 1071 [ (1914) ]; Williston on Contracts, 3d Ed., § 908.
“In Equitable Life Assur. Soc. of United States v. Roberts, 226 Ala. 8, 145 So. 157 [ (1932) ], the court recognized this principle, stating that, with respect to otherwise undesignated dividends, there is a legal obligation on the ‘insurer’ to apply such dividends to the payment of the premium in order to avoid forfeiture of the policy.
“Again in Benefit Ass’n Ry. Employees v. Bray, 226 Ala. 444, 147 So. 640 [ (1933) ], accruing sick benefits were applied to avoid lapse for nonpayment of premiums, and Foster, J., stated, as a general rule, ‘that an insurance policy cannot be canceled by the insurance carrier for nonpayment of premiums when it has a credit to the insured of an amount equal to such premium otherwise unappropriated by the insured.’ See also Prudential Ins. Co. v. Gray, 230 Ala. 1, 159 So. 265 [ (1934) ].”

Colquitt, 42 Ala.App. at 474-75, 168 So.2d at 254-55 (emphasis added).

The assumption made by the Court of Appeals in Colquitt was that a loss occurring during a grace period provided for in a disability-insurance policy “g[ave] rise to an obligation by the underwriter to the insured” to pay the claim, thereby somehow creating a “credit” from which the delinquent premium could be retroactively paid (via a setoff) under the authority of the Alabama caselaw cited. That assumption was erroneous. As this court subsequently noted in Blue Cross-Blue Shield of Alabama v. Craig, 46 Ala.App. 352, 242 So.2d 398 (Civ.1970), in Colquitt “there was no ‘credit’ held by the insurer for the benefit of the insured at the time the premium became delinquent, nor at the time services were rendered on behalf of insured, which could have been used to pay the delinquent premium.” 46 Ala.App. at 356, 242 So.2d at 402 (emphasis added). In other words, Craig stands for a proposition contrary to that espoused in Colquitt: the mere occurrence of a loss during the grace period that might have been payable under a particular policy of disability insurance does not thereby excuse the insured’s failure to make the tardy premium payment. Thus, this court, in effect, rejected the holding in Colquitt more than 35 years ago.

The Alabama Supreme Court has never cited Colquitt as authority, nor does its denial of certiorari review in Colquitt “necessarily indicate [that court’s] approval of all the language used, nor of the statements of law made in” Colquitt. Ex parte Opelika Cocar-Cola Bottling Co., 286 Ala. 460, 460, 241 So.2d 331, 332 (1970). Similarly, any action by the legislature to reenact laws governing disability-insurance grace periods since Colquitt was decided cannot properly be said to have indicated an intent to adopt the interpretation in Colquitt of the effect of grace-period provisions. See Town of Kitten v. Clemmons, 963 So.2d 670, 673 n. 3 (Ala.Civ.App.2007). “Although we have a healthy respect for the principle of stare decisis, we should not blindly continue to apply a rule of law that does not accord with what is right and just,” Ex parte State Farm Fire & Cas. Co., 764 So.2d 543, 545 (Ala.2000), and it is not “right and just” that an insured receive an extra period of coverage at no cost. See Zaitschek, 166 Misc.2d at 165, 632 N.Y.S.2d at 436. Accordingly, we agree with the defendants that Colquitt should not be followed; to the extent that Col-quitt is inconsistent with our opinion in this case, Colquitt is overruled.

Under the facts of record adduced in connection with the defendants’ summary-judgment motion, Legg could not, as a matter of law, have prevailed on his breach-of-contract claim. Coverage was promised to Legg “only as long as [he paid his] monthly premium to John Alden Life Insurance Company or its administrator as it becomes due,” and Legg failed to cause a monthly premium payment, due on or before October 29, 2003, to be transmitted to the appropriate post-office box by the due date for that payment or by the end of the 10-day grace period mandated by § 27-19-6 and set forth in the rider to his certificate. Since “the premium [wa]s not received at [John Alden’s] Home Office by the end of the grace period,” the defendants properly treated the certificate as having lapsed as of October 29, 2003, and correctly deemed any medical procedures performed upon Legg on. October 31, 2003, not to be covered. Thus, the trial court did not err in entering a summary judgment in favor of the defendants as to Legg’s breach-of-contract claim. Moreover, because “one who cannot prove [entitlement] to benefits under an insurance policy cannot recover on a bad-faith claim,” Acceptance Ins. Co. v. Brown, 832 So.2d 1, 16 (Ala.2001), we conclude that the defendants were also entitled to a judgment as a matter of law with respect to Legg s bad-faith tort claim. See also Auto-Owners Ins. Co. v. Abston, 822 So.2d 1187, 1193 (Ala.2001).

Based upon the foregoing facts and authorities, the summary judgment entered in favor of John Alden and Fortis on Legg’s claims is due to be affirmed.

AFFIRMED.

THOMPSON, P.J., and BRYAN, THOMAS, and MOORE, JJ., concur.

      . Further, the defendants acted within their rights by returning Legg's tardy premium payments. See Carolina Cas. Ins. Co. v. Miss Deanna’s Child Care-Med Net, L.L.C., 869 So.2d 1169, 1173 (Ala.Civ.App.2003) (noting that under Alabama law, “when an insurer accepts a premium payment from an insured with knowledge that an otherwise-covered occurrence has happened during a period of lapse,” the insurer may "return the premium for the lapsed period”).


author: WOODALL, Justice.

text:
    Ex parte Marcus Neal LEGG. (In re Marcus Neal Legg v. Fortis Insurance Company and John Alden Life Insurance Company).
    1061495.
    Supreme Court of Alabama.
    Aug. 31, 2007.
    Michael C. Lambert and Jeremy D. Cameron of Lambert & Puckett, P.C., Huntsville, for petitioner.
   WOODALL, Justice.

The petition for the writ of certiorari is denied.

In denying the petition for the writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Civil Appeals’ opinion. Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973).

WRIT DENIED.

COBB, C.J., and SEE, LYONS, STUART, SMITH, BOLIN, PARKER, and MURDOCK, JJ., concur.


author: PER CURIAM.

text:
    C.D.S. v. K.S.S.
    2060907.
    Court of Civil Appeals of Alabama.
    July 27, 2007.

      Bryant F. Williams, Jr., Ozark, for appellant.
    John C. White of Cobb, Derrick, Boyd & White, Dothan, for appellee.
   PER CURIAM.

On July 9, 2007, C.D.S. (“the father”) filed a notice of appeal and a motion in this court to vacate a circuit court’s June 28, 2007, judgment and to stay that court’s proceedings pending the appeal of that court’s judgment modifying custody. We grant the father’s motion to vacate; we also remand this case and order that it be reassigned to a different circuit court judge upon remand. Further proceedings in this case shall be stayed until the circuit court judge to whom the case is reassigned has had an opportunity to conduct an evi-dentiary hearing on the matter of the children’s custody pursuant to the Ex parte McLendon, 455 So.2d 863 (Ala.1984), standard and this court’s order of June 27, 2007. Our action in reassigning this case is not intended to disparage the circuit court judge in this case; instead, as we further explain below, it is merely intended to preserve the appearance of justice.

As an initial observation, we note that this is not the first time we have been called to address the postdivorce custody dispute between the father and K.S.S. (“the mother”). On March 2, 2007, this court dismissed a previous appeal by the father as being from a void judgment. C.D.S. v. K.S.S., 963 So.2d 125 (Ala.Civ.App.2007). In that case, the circuit court, on January 19, 2006, entered an order determining that the children of the mother and the father, K.S. and R.P.S., were dependent. As we noted in C.D.S., the circuit court did not have jurisdiction to find the children dependent. Section 12-15-30(a), Ala.Code 1975, provides that “ ‘[t]he juvenile court shall exercise exclusive original jurisdiction of proceedings in which a child is alleged to be ... depen-dant. ...”’ C.D.S., 963 So.2d at 127 n. 1. The circuit court on that same day then entered another order transferring the proceedings to the juvenile court. The Houston County circuit judge presiding over this matter is also designated to serve as the juvenile court judge in Houston County. The juvenile court hearing the matter entered an order on March 14, 2006, “returning physical custody of the children to the father; maintaining legal custody in the Department of Human Resources (‘DHR’); and denying, as moot, the guardian ad litem’s petitions to find the children dependent.” C.D.S., 963 So.2d at 127. The juvenile court then heard evidence, and, on July 20, 2006, entered a judgment purporting to, among other things, relieve DHR of custody of K.S. and R.P.S.; return K.S. to the custody of the father; find the father unfit to have custody of R.P.S.; and grant custody of R.P.S. to the mother. In addressing this court’s appellate jurisdiction over the father’s appeal from the juvenile court’s July 20, 2006, judgment, we stated:

“[T]he juvenile court’s denial of the dependency petitions on March 14, 2006, not only terminated the dependency proceedings but also constituted a determination on the allegations of circumstances constituting an emergency with regard to the emotional welfare of the children. Those allegations were- the sole basis for the juvenile court’s concurrent jurisdiction over custody issues under the circumstances of this case. Thus, when it entered its purported judgment on July 20, 2006, the juvenile court did not have subject-matter jurisdiction over the parties’ custody dispute, and, therefore, that purported judgment is void.
“Under the circumstances of this case, the only court that had subject-matter jurisdiction over the parties’ custody dispute after the juvenile court denied the dependency petitions was the circuit court. Consequently, the juvenile court should have transferred case no. DR-03-752.02 back to the circuit court for it to adjudicate the custody dispute in accordance with the standard enunciated by the Alabama Supreme Court in Ex parte McLendon, 455 So.2d 863 (Ala.1984), instead of proceeding further.
“Because the juvenile court’s purported July 20, 2006, judgment is void, we dismiss the father’s appeal insofar as it seeks review of the purported July 20, 2006, judgment of the juvenile court, and we direct the juvenile court (1) to set aside its purported judgment of July 20, 2006, and (2) to transfer case no. DR-03-752.02 back to the circuit court for it to adjudicate the custody dispute in accordance with the McLendon standard.”

C.D.S., 963 So.2d at 130 (footnote'omitted). Subsequent to this court’s dismissal of the appeal in C.D.S., the proceedings at the circuit court level have led the father to file in this court a petition for a writ of mandamus directing, among other things, the circuit court judge to recuse himself (case no. 2060633), as well as motions for stays of the circuit court’s orders and motions to vacate those orders (case no. 2060779 and case no. 2060907). However, what is most pertinent to our decision today is the circuit court judge’s difficulty in putting out of his mind his previously expressed views or findings as to custody that we have determined are based, at least in part, on evidence received by the juvenile court in proceedings it did not have jurisdiction to conduct.

Significantly, after this court dismissed the father’s appeal in C.D.S. and apparently after the juvenile court transferred the case to the circuit court, the circuit court heard ore tenus evidence on April 25, 2007. At that April 25, 2007, hearing the circuit court only permitted the presentation of evidence regarding events that had occurred subsequent to the entry of the juvenile court’s July 20, 2006, judgment purporting to resolve the custody dispute. Therefore, the father moved to introduce the records of all previous proceedings concerning the custody dispute, and the circuit court admitted them.

On May 7, 2007, the circuit court entered an order that stated: “The court adopts the statement of facts contained in its Juvenile Order of July 20, 2006.” Continuing, the May 7, 2007, order also stated that “[t]he evidence is clear that unless the Department of Human Resources and this court remain involved with [the father, who had physical custody of the children], there will be no meaningful visitation” allowed the mother. The circuit court’s order further found “[t]hat it would materially promote the best interest of the minor child [R.P.S.] if the mother ... had custody.” The circuit court ordered that custody of R.P.S. be transferred to the mother, but it also ordered that the custody of K.S. shall remain with the father.

On June 5, 2007, the father filed a notice of appeal from the May 7, 2007, order (case no. 2060779), and this court ordered a stay of that order. Then, on June 7, 2007, the mother filed in the juvenile court a motion for a temporary order placing R.P.S. with the mother pending the resolution of the father’s appeal. The circuit court then entered an order on June 8, 2007, purportedly in both cases — case no. JU-06-019 and case no. DR-03-752— that stated that upon this court’s stay of the May 7, 2007, order, “the previous order [apparently referring to the circuit court’s January 19, 2006, order] adjudicating dependency and granting custody of the children to DHR is now effective.” The circuit court continued: “Therefore, [the] mother’s motion for temporary custody is denied. The children remain dependent and custody is given to DHR with placement of [R.P.S.] with [the] mother.”

On June 14, 2007, the father filed in case no. 2060779 a motion to vacate the circuit court’s order and to enforce the decision of this court issued on March 2, 2007. After informing the parties that we would treat the father’s motion as a petition for a writ of mandamus and requesting and receiving answers to the father’s petition from the mother and the guardian ad litem, this court entered an order on June 27, 2007, in case no. 2060779 stating:

“IT IS ORDERED that the petition be, and the same is hereby, granted. Pursuant to this court’s order of June 19, 2007, appellant’s motion to vacate lower court order and enforce order of this Court is treated as a petition for writ of mandamus. Petition for writ of mandamus is granted. This court, having previously found in its opinion of March 2, 2007, that the January 19, 2006, order of the circuit court adjudicating dependency and placing custody of the children with DHR to be void, now finds that the June 8, 2007, temporary order in which the circuit court revived the January 19, 2006, order is void. The court further finds the May 7, 2007, order of the circuit court to be void due to its adoption of the juvenile court’s July 20, 2006, order which this court also determined was void in our March 2, 2007, opinion. The circuit court is to follow the March 2, 2007, opinion of this court wherein it was stated: ‘[T]he circuit court [is] to adjudicate the custody dispute in accordance with the McLen-don [Ex parte McLendon, 455 So.2d 863 (Ala.1984)] standard.’ (Emphasis added.) Until such time, the circuit court’s January 18, 2005, order[] is in effect.”

The day after this court issued the above order the circuit court entered an order finding that K.S. had visited the mother only once since August 2006, that the father continued a pattern of alienating the affections of the children toward the mother, and that “it would materially promote the best interests of [R.P.S.] if [the] mother were to be granted custody.” The circuit court also ordered that physical custody of R.P.S. be transferred to the mother, that K.S. remain in the custody of the father, that the parties exchange income affidavits and compute child support within 30 days of the date of the order, and that the father pay the mother attorney fees.

In entering its order on June 28, 2007, the day after this court had vacated the May 7, 2007, order, the circuit court did not “adjudicate” the custody dispute in a manner consistent with this court’s instructions in its March 2, 2007, opinion, given the context in which those instructions were issued. Significantly, in our opinion of March 2, 2007, we noted that on March 14, 2006, the juvenile court had entered an order denying the dependency petitions, which “not only terminated the dependency proceedings, but also constituted a determination of the allegations of circumstances constituting an emergency with regard to the emotional welfare of the children.” C.D.S., 963 So.2d at 130. It was after the juvenile court entered its March 14, 2006, order that the juvenile court proceeded to conduct a hearing and receive ore tenus testimony regarding the mother’s petition seeking a modification of the order determining custody. As stated in our previous opinion, “the juvenile court should have transferred case no. DR-03-752.02 back to the circuit court for it to adjudicate the custody dispute in accordance with the standard enunciated by the Alabama Supreme Court in Ex parte McLendon, 455 So.2d 863 (Ala.1984), instead of proceeding further.” 963 So.2d at 130.

Given the context in which we made the above statement, “adjudicate” means more than merely permitting the presentation of evidence regarding events that had occurred subsequent to the entry of the juvenile court’s July 20, 2006, judgment purporting to resolve the custody dispute. Because the juvenile court lacked jurisdiction to conduct any hearing regarding the children’s custody following the entry of its March 14, 2006, order, and because the juvenile court’s judgment of July 20, 2006, was void for lack of subject-matter jurisdiction, the circuit court in this case must allow the parties to conduct a full trial in the circuit court without reliance upon the void juvenile court proceedings to properly “adjudicate” the issue of the children’s custody. See Summerhill v. Craft, 425 So.2d 1055, 1056 (Ala.1982) (holding that a circuit court had erred in admitting a probate court’s order when the probate court’s order was void because of a lack of jurisdiction); see also 32A C.J.S. Evidence § 863 (2007) (noting that when proceedings are void, the record thereof is inadmissible); cf. Charles W. Gamble, McElroy’s Alabama Evidence § 484.02(2) (5th ed.1996) (noting that “circuit courts do not take judicial notice of the records of another court”).

Although the circuit court conducted an ore tenus hearing on April 25, 2007, the circuit court only allowed the presentation of evidence regarding events that had occurred subsequent to the entry of the juvenile court’s July 20, 2006, judgment purporting to resolve the custody dispute. In this situation the father was faced with an unenviable “catch-22” dilemma. The father had to choose between, on the one hand, introducing the records from the previous proceedings and risking this court’s determining that his action had invited error and, on the other hand, not introducing the records from the previous proceedings and risking this court’s determining that the judgment must be affirmed because the record on appeal was incomplete. We decline to hold that the father invited error by electing to introduce the records from the previous proceedings in the custody dispute under these circumstances.

The circuit court’s June 28, 2007, judgment, entered the day after the entry of this court’s order vacating the May 7, 2007, judgment, also appears to have been made in reliance, at least in part, upon proceedings in the juvenile court that the juvenile court was without jurisdiction to conduct and without affording the father an opportunity to conduct a full evidentia-ry hearing.

In summation, by considering evidence presented in the proceedings that the juvenile court was without jurisdiction to conduct and by not allowing the father to present evidence of events that occurred before the entry of the juvenile court’s July 20, 2006, judgment purporting to resolve the custody dispute, the circuit court has not adjudicated this dispute in a manner consistent with this court’s March 2, 2007, opinion.

Considered as a whole, the circuit court judge’s errors in this custody dispute indicate that the circuit court judge may have had some difficulty in putting aside the views regarding custody that he expressed when he acted as a juvenile court judge in performing the task at hand as a circuit court judge. Therefore, we find it advisable to order the reassignment of the case to a different circuit court judge. We take the opportunity presented by this situation to explain the necessity and the basis for our action.

As an initial matter, we note that this court’s power to order the reassignment of a case upon remand derives from several subsections of Art. VI, § 141, Ala. Const. 1901 (Official Recomp.). Article VI, § 141(c), provides: “The court of criminal appeals and the court of civil appeals shall have no original jurisdiction except the power to issue all writs necessary or appropriate in aid of appellate jurisdiction of the courts of appeals.” Thus, under § 141(c), this court may issue an order reassigning a case to a different trial judge when such an order is in aid of our appellate jurisdiction to enforce compliance with this court’s previous opinions or orders.

Our authority to order a reassignment is also derived from Art. VI, § 141(b), which provides: “The court of civil appeals shall consist of such number of judges as may be provided by law and shall exercise appellate jurisdiction under such terms and conditions as shall be provided by law and by rules of the supreme court.” (Emphasis added.) The law. governing the exercise of our appellate jurisdiction includes § 12-3-11, Ala.Code 1975. Under § 12-3-11 this court, like the Court of Criminal Appeals, has the authority to grant injunctions and to issue such writs as “are necessary to give it a general superintendence and control of jurisdiction inferior to it and in matters over which it has exclusive appellate jurisdiction.”

Despite the facts that what is now Art. VI was ratified after § 12-3-11, Ala.Code 1975, was enacted and that Art. VI, § 141(d), which tracks the language of § 12-3-11, pertains only to the Court of Criminal Appeals, the ratification of what is now Art. VI should not be construed to eviscerate this court’s authority under § 12-3-11. Indeed, we have invoked that section in numerous cases. See State Health Planning & Dev. Agency v. Baptist Med. Ctr., 446 So.2d 619, 622 (AIa.Civ.App.1983) (invoking § 12-3-11 and stating that this court is empowered to issue necessary remedial orders or writs to prevent judicial disorder and ordering the consolidation of numerous appeals from an administrative agency into one circuit court); Department of Indus. Relations v. Pickett, 437 So.2d 1303, 1304-05 (Ala.Civ.App.1983) (remanding a case for the trial court to follow this court’s mandate within 14 days); and Abbett v. Treadwell, 816 So.2d 477, 482-83 (Ala.Civ.App.2000) (Crawley, J., joined by Thompson, J., concurring in the result)(noting that this court has general superintendence and control of trial courts in domestic-relations matters under Ala.Code 1975, § 12-3-11). Additionally, in Ex parte Department of Mental Health, 511 So.2d 181, 185 (Ala.1987), our supreme court quoted with approval portions this court’s opinion in Ex parte Department of Mental Health & Mental Retardation, 491 So.2d 956, 959 (Ala.Civ.App.1986), in which this court stated that, when trial courts do not cooperate concerning concurrent jurisdiction over a juvenile, “ ‘this court will not hesitate to exercise its supervisory powers over these , courts pursuant to Ala.Code (1975), § 12-3-11.’ ” 511 So.2d at 185.

Typically, the appellate courts in this state have not ordered the reassignment of a case as much as they have ordered trial judges to recuse themselves from cases when necessary. One scholar has described the difference between recu-sal and reassignment in the context of federal actions as follows:

“The reassignment procedure is distinct from the recusal procedures. Re-.cusal arises either from a litigant’s petition, under Section 144 of 28 U.S.C., or by the district judge, under Section 455 of 28 U.S.C. The recusal statutes direct the judge to recuse herself when there is a conflict of interest, when there is ‘an opinion that derives from an extrajudicial source,’ or when there is ‘a high degree of favoritism or antagonism as to make fair judgment impossible.’ Reassignment arises when an appellate panel determines that it would further justice for a different district judge to proceed on remand.”

James A. Worth, Destigmatizing the Reassignment Power, 17 Geo. J. Legal Ethics 565, 565 (2004) (footnotes omitted). In United States v. White, 846 F.2d 678 (11th Cir.1988), the United States Court of Appeals for the Eleventh Circuit explained:

“In cases where there is no proof of personal bias, the Second Circuit has persuasively enumerated factors which should be considered by an appellate court in deciding whether to exercise its supervisory authority to reassign a case. These criteria include:
“ ‘(1) whether the original judge would reasonably be expected upon remand to have substantial difficulty in putting out of his or her mind previously-expressed views or findings determined to be erroneous or based on evidence that must be rejected, (2) whether reassignment is advisable to preserve the appearance of justice, and (3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness.’
“United States v. Robin, 553 F.2d 8, 10 (2d Cir.1977) (en banc). Although this Court has not explicitly adopted these criteria, we have cited Robin with approval. See United States v. Long, 656 F.2d 1162, 1166 n. 7 (5th Cir. Unit A Sept.1981). Moreover, other circuits have applied these principles. See, e.g., United States v. Garcia, 694 F.2d 294 (1st Cir.1982); United States v. Sears, Roebuck & Co., 785 F.2d 777 (9th Cir.), cert. denied, [479] U.S. [988], 107 S.Ct. 580, 93 L.Ed.2d 583 (1986).”

846 F.2d at 696. Recently, the Alabama Court of Criminal Appeals applied a similar test in addressing the issue of the recusal of a trial judge in State v. Moore, [Ms. CR-06-0747, May 11, 2007] — So.2d -, - (Ala.Crim.App.2007). We adopt and apply the factors set out in United States v. Robin, 553 F.2d 8 (2d Cir.1977), to this matter. In doing so, we are mindful of the statement the United States Court of Appeals for the Second Circuit made in Robin, i.e., that reassignment on remand “does not imply any personal criticism of the trial or sentencing judge.” 553 F.2d at 10. That being noted,

“[i]n the rare case where a judge has repeatedly adhered to an erroneous view after the error is called to his attention, see, e.g., United States v. Brown, 470 F.2d 285, 288 (2d Cir.1972) (court twice used improper sentencing procedure), reassignment to another judge may be advisable in order to avoid ‘an exercise in futility in which the Court is merely marching up the hill only to march right down again.’ United States v. Tucker, 404 U.S. 443, 452, 92 S.Ct. 589, 594, 30 L.Ed.2d 592 (1972) (Blackmun, J., dissenting).”

Robin, 553 F.2d at 11. Applying the Robin factors to this case, we have determined that reassignment of this case to a different circuit court judge is warranted because it is likely that “ ‘the original judge would have difficulty putting his previous views and findings aside.’ ” United States v. Martin, 455 F.3d 1227, 1242 (11th Cir.2006)(quoting United States v. Torkington, 874 F.2d 1441, 1447 (11th Cir.1989)). The reassignment of this case to a different circuit court judge is also “advisable to preserve the appearance of justice.” Robin, 553 F.2d at 10. Additionally, we do not believe that reassigning this case to a different circuit court judge would entail “waste ... out of proportion to any gain in preserving the appearance of fairness.” White, 846 F.2d at 696.

To summarize, our June 27, 2007, order vacated the May 7, 2007, judgment appealed from, and we now vacate the June 28, 2007, order of the circuit court because of the circuit court judge’s difficulty in putting out of his mind his previously expressed views as to custody that we have determined are based, at least in part, on evidence received by the juvenile court in proceedings it did not have jurisdiction to conduct and because the circuit court has not held a full evidentiary hearing in order to apply the McLendon test to determine custody. We also remand the case and order the reassignment of this case upon remand to a different circuit court judge, in order to conduct the full evidentiary hearing and apply the McLendon standard to the custody dispute. In reassigning the case to a different circuit court judge, we instruct the circuit court judge to take into consideration the principles regarding reassignment our Supreme Court established in Ex parte Jim Walter Homes, Inc., 776 So.2d 76 (Ala.2000). Finally, as we noted in our June 27, 2007, order, the original judgment divorcing the father and the mother will govern the custody of the children until a new circuit court judge has been appointed and has had an opportunity to conduct a hearing.

MOTION TO VACATE JUNE 28, 2007, ORDER, GRANTED; CASE REMANDED AND REASSIGNMENT ORDERED; STAY ISSUED PENDING REASSIGNMENT OF CASE ON REMAND.

All the Judges concur.

      . We have summarized the holding of Ex parte McLendon in numerous cases; for example, in Barber v. Moore, 897 So.2d 1150, 1153 (Ala.Civ.App.2004), we stated:
      "In Ex parte McLendon, supra, our supreme court held that the proper standard to be applied in child-custody cases wherein a parent has either voluntarily forfeited custody or has lost custody due to a prior judgment is whether there has been a material change in circumstances since the prior judgment; whether a change in custody will materially promote the best interests of the child; and whether the benefits of the change in custody will more than offset the inherently disruptive effect caused by uprooting the child. 455 So.2d at 865.”
      Other cases that similarly reiterate the Ex parte McLendon standard include: Ex parte Martin, 961 So.2d 83, 87 (Ala.2006) (stating the McLendon standard); Bratton v. Romine, 819 So.2d 58, 61-62 (Ala.Civ.App.2001) (reciting the McLendon standard and noting that it is well-established); and Sims v. Sims, 515 So.2d 1, 3 (Ala.Civ.App.1987) (noting the McLendon standard).

      . Among the facts alleged by the father in his petition for the writ of mandamus seeking the recusal of the circuit court judge are his claims that the circuit court judge refused to allow the father to impeach the credibility of the mother and, according to the father, "deemed that the father had abandoned his case when [the father] insisted on making an offer of proof." This court denied that petition.

      . Incidentally, we also note that during the course of the father’s appeal in C.D.S., this court granted a stay of the juvenile court’s judgment. Subsequent to that stay being ordered, the juvenile court issued an order on August 3, 2006, that stated that the custody of the youngest child would remain with the mother pending appeal. This court then granted the father’s motion to vacate that order.

      . The January 18, 2005, order divorced the mother and the father; awarded the parties joint legal custody of the two children; awarded the father primary physical custody of the children; and awarded the mother visitation.

      . In this case the circuit court indicated at the April 25, 2007, proceeding that it was taking judicial notice of the evidence presented in the juvenile court; indeed, as noted above, the circuit court's May 7, 2007, judgment stated: "The court adopts the statement of facts contained in its Juvenile Order of July 20, 2006.”

      . In addition, we note that the circuit court’s June 28, 2007, judgment is not a final judgment because it does not address the issue of child support, except to require the parties to submit income affidavits to the circuit court within 30 days.

      . What is currently Art. VI, Ala. Const. 1901, was formerly, i.e., before the "Official Recompilation of the Constitution of Alabama of 1901, as amended” was completed in 2005, Amendment No. 328 to Alabama’s Constitution, which was proposed by Acts 1973, No. 1051, p. 1676. Amendment No. 328 was ratified on December 27, 1973.