author: MURDOCK, Justice. WOODALL, Justice

text:
    Patricia POFFENBARGER and Michael Poffenbarger v. MERIT ENERGY COMPANY and David Hertel.
    1041707.
    Supreme Court of Alabama.
    May 11, 2007.
    George W. Finkbohner III, David G. Wirtes, Jr., and George M. Dent III of Cunningham, Bounds, Crowder, Brown & Breedlove, L.L.C., Mobile, for appellants.
    A. Danner Frazer, Jr., D. Brent Baker, and Mary Margaret Bailey of Frazer, Greene, Upchurch & Baker, L.L.C., Mobile, for appellees.
   MURDOCK, Justice.

Pursuant to Rule 5, Ala. R.App. P., Patricia Poffenbarger and Michael Poffenbar-ger, husband and wife, appeal from a partial summary judgment entered by the Mobile Circuit Court in favor of Merit Energy Company (“Merit”) and David Hertel, Merit’s operations manager. We affirm.

I. Facts and Procedural History

In 1955, oil was discovered beneath the surface of land located in and around Ci-tronelle, Alabama. This discovery led to the development of what is known as the “Citronelle oil field.”

In 1995 and 1999, Merit acquired substantial interests in the Citronelle oil field. On August 29, 2002, a leak was discovered in a section of one of the oil pipelines acquired by Merit. That section of pipeline, although located on land adjacent to a 32-acre tract of land owned by the Poffen-bargers, ran along, and in close proximity to, the boundary of that 32-acre tract. Oil had escaped through a hole in the pipeline and had entered the Poffenbargers’ land. This 32-acre tract is uninhabited woodlands and, except for pipelines and other equipment associated with the production of oil, is undeveloped.

Merit contracted with M & M Industrial Services (“M & M”) to remove the spilled oil from the Poffenbargers’ property. After containing the oil, M & M replaced the leaking section of pipeline. M & M was on-site cleaning the oil spill from August 29, 2002, through October 1, 2002. Merit spent approximately $42,000 on the initial cleanup of the Poffenbargers’ property.

In November 2002, Merit’s operations engineer, Laura Nofziger, informed Mrs. Poffenbarger by letter that Merit had completed its cleanup of the property. Merit admits that Nofziger’s assertion to Mrs. Poffenbarger was incorrect and that oil remains on the Poffenbargers’ property-

On March 21, 2003, the Poffenbargers sued Merit and Hertel, among Others, asserting claims of trespass, nuisance, wantonness, and negligence. They sought “compensatory and punitive damages in an amount deemed appropriate by the jury, plus costs.” Merit and Hertel filed a joint answer in which they denied the material allegations of the complaint and asserted various affirmative defenses. Later, Merit and Hertel amended their answer by adding, in further response to the Poffenbar-gers’ punitive-damages claim, an affirmative defense that stated, in part, that “[o]n August 9, 2004, [Merit] entered into a consent agreement with the U.S. Environmental Protection Agency and pursuant to that agreement paid a fine of $78,672.00, which was in part a penalty for the spill which is at issue in this case.”

On February 11, 2005, Merit and Hertel filed a motion for a partial summary judgment as to the proper measure of compensatory damages for the contamination of real property. In their supporting brief, Merit and Hertel noted that the Poffen-bargers were seeking, as damages, the cost to remediate their property and that, according to the Poffenbargers’ expert witness, the cost of that remediation was estimated to be $2,608,740. Merit and Hertel pointed out that an appraisal of the Poffen-bargers’ 32-acre tract had been obtained and that the appraisal indicated a $38,628 value before the contamination ($1,200 per acre) and a postcontamination value of $32,628.

Merit and Hertel argued that the proper measure of damages for an injury to real property is not the cost to remediate the property, but, instead, is the diminution in the fair market value of the property resulting from the injury. Merit.and Hertel asserted that, although a property owner may recover the cost of remediation if the injury to the property is “temporary” rather than permanent, the repair costs recovered cannot exceed the diminution in the fair market value of the property caused by the injury. They argued that, because the cost of remediating the Poffenbargers’ property exceeded the diminution in its value, the proper measure of damages for the injury to the Poffenbargers’ property was the diminution in the value of the property.

In response, the Poffenbargers argued that the leak of oil onto their property caused what Alabama cases refer to as a “temporary” injury and that, accordingly, they were entitled under Alabama law to recover the cost of restoring the real property to its predamaged condition. They also argued that the rule of law limiting damages for injuries to real property caused by pollution to the diminution in value of the property was antiquated, given the “emerging area of environmental law and pollution control,” as well as the implementation of statutes and regulations seeking to limit pollution.

On August 1, 2005, the trial court granted Merit and Hertel’s motion and entered a partial summary judgment in their favor. In its order, the trial court found “that there [was] no genuine issue of material fact as to [the Poffenbargers’] claim[ ] for remediation costs which exceed diminution in fair market value of the land ... and that [Merit and Hertel] are entitled to a summary judgment in their favor on [this] claim[ ] as a matter of law.” The trial court held

“that the proper measure of compensatory damages in this action, which is based on alleged damages to [the Pof-fenbargers’] real property, is the difference between the fair market value of the property before and after the alleged damage, not to exceed the fair market value of the property before the alleged damage.”

The trial .court certified its judgment as final pursuant to Rule 54(b), Ala. R. Civ. P. It also certified that an immediate appeal from the judgment would materially advance the ultimate termination of the litigation because it involved a controlling question of law as to which there was a substantial ground for a difference of opinion. According to the trial court, the controlling question of law was: “[W]hat is the appropriate measure of compensatory damages for contamination to land where the remediation or clean-up costs exceed the fair market value of the land before it was contaminated?” Thereafter, the trial court amended its order nunc pro tunc, eliminating the language making the order final under Rule 54(b).

Pursuant to Rule 5, Ala. R.App. P., the Poffenbargers petitioned this Court for permission to appeal from the trial court’s partial summary judgment. This Court granted the Poffenbargers’ petition.

II. Standard of Review

A summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56, Ala. R. Civ. P. We review the trial court’s ruling on a motion for a summary judgment de novo. Bruce v. Cole, 854 So.2d 47, 54 (Ala.2003). In the present case, our review is de novo for the additional reason that the material facts are undisputed and the only issue presented involves a pure question of law. See Christian v. Murray, 915 So.2d 23, 25 (Ala.2005).

III. Analysis

This appeal presents, for the first time, a fact situation that directly raises the following question: Under Alabama law, what is the general rule for the measurement of direct, compensatory damages for an injury to real property when the cost to remediate the property exceeds the diminution in the value of the property caused by the injury? The Poffenbargers assert that the proper measure of damages is the full cost to remediate the property; Merit and Hertel assert that the proper measure of damages generally is the diminution in the value of the property. We agree with Merit and Hertel, and we therefore conclude that the trial court’s judgment is due to be affirmed.

Although this is the first time this Court has been confronted with a case in which the cost to remediate injured real property exceeds the diminution in its value caused by the injury, this Court, on numerous occasions, has addressed the issue of the proper measure of damages for injury to real property. Those cases, as well as the authorities on which they rely, inform our conclusion in the present case.

At issue in Brinkmeyer v. Bethea, 139 Ala. 376, 35 So. 996 (1904), was a trespass to real property that involved the removal from the real property of clay, dirt, and topsoil. This Court described the common-law measure of damages for injuries to real property as follows:

“ ‘In actions for injury to real property, when the injury is done to the realty itself, the measure of damages is the difference in the value of the land before and after the trespass, or in some cases the amount necessary to restore the property to the condition in which it was before the trespass was committed.’ — [5] Am. & Eng. Ency. Law, 36; 3 Sedg. on Damages (8th Ed.) § 932.”

139 Ala. at 378, 35 So. at 997 (emphasis added). The quoted passage from The American and English Encyclopedia of Law is followed in that Encyclopedia by a footnote explaining as follows: “Where the cost of putting the premises in the same condition in which they were before the trespass exceeds the increased value thereby added to the land, the depreciation in value of the land will usually be held to be the measure of damages.” 5 American and English Encyclopedia of Law 36 n. 1 (John Houston Merrill ed., 1888). Section 932 of Sedgwick on Damages, the other source upon which this Court relied in Brinkmeyer, similarly states:

“The general principle upon which compensation for injuries to real property is given, is that the plaintiff should be reimbursed to the extent of the injury to the property. The injury caused by the defendant may be of a permanent nature; in such a case the measure of damages is the diminution of the market value of the property. If the injury caused a total or partial loss of the land for a limited time, the diminution in rental value is the measure. One of these two measures is always applicable. If the injury is easily reparable, the cost of repairing may be recovered. But it must be shown that the repairs were reasonable; and if the cost of repairing the injury is greater than the diminu tion in market value of the land, the latter is always the true measure of damages. Strictly speaking, therefore, the cost of repairs is not the measure of damages, but only evidence of the amount of damages.”

3 Theodore Sedgwick, A Treatise on- the Measure of Damages § 932 (8th ed. 1891) (emphasis added; footnotes omitted).

In Sloss-Sheffield Steel & Iron Co. v. Mitchell, 161 Ala. 278, 49 So. 851 (1909), this Court again addressed the proper measure of damages for an injury to real property. This Court described the facts before it in that case as follows:

“This was an action for damages for the overflow of appellee’s land, caused by the defendant’s obstruction of the natural flow of waters in a creek or branch. ...
“Plaintiff had a number of tenant houses upon his land and it appeared in evidence that the overflow of water invaded some of the houses, leaving in those invaded, and under all of them, and on the land, slime, mud, and debris, causing the floors to swell, and piers to settle, and the sills to rot. The plaintiff testified that he had cleaned up the land and houses, and partially repaired the injuries done to the foundations and floors of the houses. This had been accomplished at an expenditure of $300, and had so far restored the premises to their original condition that the rent received from each of the houses had been diminished by 50 cents a month only. There had been no loss of soil, nor had any part of the premises been seriously or permanently overlaid by soil deposited upon them.”

161 Ala. at 280-83, 49 So. at 852-53. Discussing the appropriate measure of damages, we stated:

“On these facts, without more, the plaintiff was not entitled to compensation as
for the lasting detriment of his land — as . for detriment not to be averted or removed by reasonable effort and expenditure. 4 Suth. Dam. §§ 1017, 1018; Abercrombie v. Windham, 127 Ala. 179, 28 South. 387 [ (1900) ]. So far as these injuries are concerned, the true measure of plaintiffs damages was the reasonable expense of restoring the premises and the loss of income pending their restoration with reasonable effort, expenditure, and expedition. The plaintiff was in duty bound to make reasonable effort to prevent the accumulation of damages.”

161 Ala. at 283, 49 So. at 853.

In reaching its decision in Sloss-Shef-field, this Court relied, among other things, on 4 J.G. Sutherland, A Treatise on the Law of Damages §§ 1017-18 (3d ed.1904). Sections 1017 and 1018 of that treatise state, in part, as follows:

“§ 1017. ... Wherever, by one act, a permanent injury is done the damages . are assessed once for all, even though separate parcels of land are affected, and any depreciation in the value of the property will be an element of damages according to the extent and duration of the plaintiffs estate. ...
“§ 1018. ... If the wrong consists in the destruction or removal of some addition, fixture or part of the premises the loss may be estimated upon the diminution of their value if any results, or upon the value of the part severed considered either as a part of the premises or detached .... When occasion requires it the rule is generally announced to be that when the reasonable cost of repairing the injury by restoring the premises is less than the damage done such cost measures the damages; but if the cost of restoration is more than the diminished value the latter generally determines the amount of the recovery.”

4 Sutherland on Damages §§ 1017-18 (emphasis added; footnotes omitted).

In Fuller v. Fair, 202 Ala. 430, 80 So. 814 (1919), this Court stated the general measure of damages for injury to real property as follows:

“(1) If the land is taken, or its value totally destroyed, the owner is entitled to recover the market value thereof at the time of the taking or destruction, with legal interest thereon to the time of the trial. (2) If the land is permanently injured, but not totally destroyed, the owner will be entitled to recover the difference between the market value of the land at the time immediately preceding the injury and the market value of the land in its immediate condition after the injury, with legal interest thereon to the time of the trial. (3) If the land is temporarily, but not permanently,[] injured, the owner is entitled to recover the amount necessary to repair the injury or to put the land in the condition it was at the time immediately preceding the injury, with legal interest thereon to the time of the trial.”

202 Ala. at 432, 80 So. at 816.

The legal authorities on which the Fuller Court relied with regard to the measure of damages included § 7229 of Commentaries on the Law of Negligence, which viewed the cost of repair as a limitation on recoverable damages:

“Where the injury to real estate is permanent, the damages may be assessed on the basis of a permanent depreciation of the value of the property. ... Where the injury is temporary and may be abated, the recovery is limited to the amount necessary to put the land in as good a condition as it was before the injury, and, in addition, compensation for any loss of use during the time it was rendered unfit for occupancy.”

6 Seymour D. Thompson, Commentaries on the Law of Negligence § 7229 (1905) (emphasis added; footnotes omitted).

In Pan American Petroleum Co. v. Byars, 228 Ala. 372, 153 So. 616 (1934), a landowner sued based on the contamination of water wells that resulted from the leakage of gasoline from tanks and pumping equipment maintained by the defendant. This Court stated:

“In actions like the one now before the court the measure of damages, as a general rule, in the event the injury to the land is permanent, is the difference between the market value of the land before the injury, and its market value after the injury.
“If the injury is not permanent, but temporary, the measure of damages ordinarily is the difference between the rental value of the land before the injury and the rental value after the injury. But, in addition to a recovery for the loss in market value of the property or its rental value, the plaintiff may, in such cases, recover any special or incidental damages which he may have suffered thereby, and which proximately resulted from the wrong, whether the injury was permanent or temporary.”

228 Ala. at 376,153 So. at 619.

We addressed the proper measure of damages for injury to real property more recently in Borland v. Sanders Lead Co., 369 So.2d 523 (Ala.1979). In Borland, the plaintiffs owned property on which they farmed and raised cattle. A lead plant was located on adjacent property. On two occasions, the filtering process at the lead plant failed, allegedly causing an accumulation of lead particulates and sulfoxide deposits on the plaintiffs’ property. Following a trial at which evidence was presented ore tenus, the trial court entered a judgment in favor of the defendant on the basis that the defendant’s compliance with the Alabama Air Pollution Control Act, Ala.Code 1975, § 22-28-1 et seq., shielded the defendant from liability, and that the plaintiffs had not been damaged because the value of their property had been increased by the presence of the lead plant.

On appeal, this Court reversed the trial court’s judgment. 369 So.2d at 525. First, this Court held that compliance with the Alabama Air Pollution Act, by its plain language, did not shield the defendant company from liability. 369 So.2d at 526. Separately, as to the issue of damages, we stated:

“On remand, the issue of the proper measure of damages will undoubtedly arise. In its final decree, the trial Court held that the Plaintiffs’ property had increased in value as commercial property due to its proximity to the Defendant’s lead plant; therefore, Plaintiffs were not allowed to recover of the Defendant. As noted earlier, such a rule would allow industries, as here, to have absolute control over the use of another’s property. This clearly is not the rule for measuring damages in trespass cases. Moreover, it overlooks the fact that the appreciation factor is totally unrelated to the wrongful acts complained of.
“It is often stated that the measure of damages in trespass cases is the difference between the value of the land before and after the trespass. ...
“We note, however, that this may not be a case where the damages are to be based on the difference in value before and after the trespass. This rule is subservient to the underlying proposition for measuring damages in trespass cases: The Plaintiff is ordinarily entitled to an amount which will compensate him for actual damages sustained. Thomas v. Bank of Hurtsboro, 243 Ala. 658, 11 So.2d 370 (1942). In 75 Am.Jur.2d, Trespass § 51, it is stated:
“ ‘No hard and fast principles can be laid down for the measurement of damages in this class of cases. Generally, the rules to be applied depend upon whether or not the injury is permanent or temporary in character. As is the rule generally, in the case of permanent injury, the recovery must include all damages, both past and future. The proper measure of damages is the difference between the value of the realty before the injury and its value after the injury, except where there is a total destruction, when the owner is entitled to recover the entire value.
“ ‘As to temporary injuries, the authorities are not in agreement as to the proper rule generally for their computation. Some courts have applied the rule in actions of trespass that the cost of restoring the property to its former condition is the proper measure of damages for a temporary injury thereto when this is less than the diminution of the market value of the whole property by reason of the injury, but where the cost of restoration is more than the diminution in the market value, the latter is generally the true measure of damages. In general, the measure of damages for wrongfully depriving the plaintiff of the use of his property is the rental value or the reasonable value of the use of the property during the time he is deprived thereof Thus for a wrongful ouster of the plaintiff from a portion of his farm, damages may be awarded equal to the difference in the rental value of the farm with and without such portion.’ (Emphasis [added in Borland ].)
“In conclusion, in determining the amount of damages recoverable by a plaintiff whose property has been trespassed upon, the law is flexible and the rule simple: What will compensate the plaintiff for the injury he has received? In a case such as the present one, it must first be determined whether the alleged intrusion is of a permanent nature or of a continuing nature. If the injury is permanent, damages must be recovered for all time — past, present and future. The measure of damages means the difference in the fair market value of the property before and after the trespass, based on the plaintiffs use of the property or adaptability of the property to a particular use prior to the trespass.
“If the nature of the injury is continuous (i.e., during the tenure of the trespass), the plaintiff can recover for the use of his property or its fair rental value. (Also, plaintiff may be able to recover the cost of restoration if this, plus rental value, is less than the diminution in value.) Any damages for future loss must be recovered in a later action if and when a subsequent trespass occurs.”

369 So.2d at 530-31 (emphasis added unless otherwise indicated).

Intermediate appellate court decisions from this State also have addressed the measure of damages for injury to real property. In Jackson v. Bohlin, 16 Ala.App. 105, 75 So. 697 (1917), the plaintiff sought damages for trespass to his property. The Court of Appeals stated the measure of damages for injury to real property as follows:

“ ‘In actions for injury to real property, when the injury is done to realty itself, the measure of damages is the difference in the value of the land before and after the trespass, or in some cases the amount necessary to restore the property to the condition in which it was before the trespass was committed.’
“Where the injury is such as may be remedied by restoring the property to its condition when the trespass was committed, and the cost of restoring the property is less than the depreciation in the value of the land, and the wrong is not attended with such circumstances of aggravation as to authorize the imposition of exemplary damages, and consequential damages are not recoverable in the action under the principles hereinafter stated, the cost of restoring the property is the measure of damages.”

16 Ala.App. at 108, 75 So. at 700 (emphasis added; citations omitted).

In City of Birmingham v. Kircus, 19 Ala.App. 614, 99 So. 780 (1924), the defendant appealed a judgment in the plaintiffs favor in an action by the plaintiff to recover for damage allegedly caused by the defendant’s construction and maintenance of sewers and drains. In addressing the measure of damages for injuries to real property, the Court of Appeals stated:

“When the damage caused by the erection of a dam or sewer diverting or concentrating the water from its natural flow is recurring, the right of action for each recurring injury is in the owner of the land at the time the injury results. Where the injury is permanent, by a casual or recurrent overflow of water on land, the measure of damages is the difference between the market value of the land with and without the injury at the time thereof. But in cases of temporary or occasional injuries, and where the damage may he repaired at less costs than the diminution in value, the measure of damages is the costs of restoring the land to its former condition.”

19 Ala.App. at 618, 99 So. at 784 (emphasis added; citations omitted).

In addition to the foregoing, several legal treatises indicate that the measure of damages for abatable injuries to real property generally is limited by the diminution in the value of the property caused by the complained-of injury. In 25 C.J.S. Damages § 135 (2002), we find the following statement:

“Where the injury to real property is merely temporary, or where the property can be restored to its original condition, the measure of damages may be, or should include, the cost of repairs or restoration, as where the injury is susceptible of remedy at a moderate or reasonable expense and the cost of restoration may be shown with reasonable certainty, or where the cost of restoration is less than the diminution in the value of the property. ...
“The cost of restoration, however, cannot be adopted as the measure of damages where the cost of restoring the property would exceed the value thereof in its original condition, or the depreciation in the value thereof, or the actual damage sustained by plaintiff, or where restoration is impracticable.”

(Footnotes omitted.) Similarly, 22 Am. Jur.2d Damages § 265 (2003) states:

“Most courts agree that when the injuries to real estate are found to be temporary or reparable, the diminished market value of the property will not be used as the measure of recovery. For the purposes of measuring damages for injury to real property, a diminution in value may be determined by the cost of repairing the damage, provided that that cost does not exceed the former value of the property and provided also that the repairs do not enhance the value of the property over what it was before it was damaged.
“Along with decisions stating that restoration cost should be awarded only if it is less than the difference in the value of the property before and after the injury, some authorities hold that the measure of damages is either the diminution in the rental value unless the land can be restored to its former condition for a lesser sum, or it is the [diminution in] rental value plus the cost of restoration where this is less than the depreciation in the value of the premises.”

(Footnotes omitted.)

We hold that the appropriate measure of direct, compensatory damages to real property generally is the diminution in the value of that property, even when the cost to remediate the property exceeds the diminution in thé value thereof. That is the measure of damages to be applied in the present case. In so holding, we need not determine whether the injury to the Poffenbargers’ property is more appropriately termed “permanent” or “temporary”; regardless of which term is applied, the measure of damages would be the same because the cost to remediate the property exceeds the diminution in the value thereof.

The Poffenbargers argue that “[l]and ... is unique, non-fungible, and irreplaceable,” Poffenbargers’ brief at 43 (citing Doming v. Williams, 238 Ala. 551, 554, 191 So. 221, 222-23 (1939) (noting that “ ‘a specific tract [of land] is unique and impossible of duplication by the use of any amount of money’ ”)), and, accordingly, that the “transient ‘fair market value’ of land” should not be all that stands between the land and its destruction. The Poffen-bargers also argue that “compensatory damages should make the innocent victim whole, while polluters should have a disincentive to pollute,” Poffenbargers’ brief at 49, and that the rule of law affirmed here today will provide no incentive to potential polluters to act responsibly in maintaining and repairing their systems and equipment because it could be cheaper to take the risk that, if sued, they might have to pay a landowner no more- than the market value of affected land.

We are not unsympathetic to the concerns reflected in the Poffenbargers’ arguments. Compensatory damages should indeed be adequate to make the victim whole. As this Court noted in Borland, the “underlying proposition for measuring damages in trespass cases [is that] [t]he [p]laintiff is ordinarily entitled to an amount which will compensate him for actual damages sustained.” 369 So.2d at 530. Awarding money damages in an amount many times over the actual value of the land at issue, however, may not serve the end of making the victim whole as much as it raises the specter of a windfall to a victim who, in many cases, will have little or no incentive to spend those moneys to repair land that, even upon full remediation, will be worth only a small fraction of the money so expended. The rule we apply today, by definition, serves to make victims of pollution whole, at least in an objective or pecuniary sense, without allowing for economic waste.

What the rule we apply today admittedly does, not do, however, is address intangible or subjective loss that may accompany the contamination or other injury to a specific tract of land. In some cases, this rule also admittedly will not provide a disincentive to polluting another’s land. In these respects, we note that the Rule 5 question before us is limited to the general, common-law measure of direct, compensatory damages. We do not have before us the separate questions of consequential and punitive damages. Nor do we have before us the question whether and under what circumstances the separate remedy of injunctive relief may be available to require a trespasser to remove objects or substances tortiously placed on the affected land. We also note that a variety of environmental laws have been adopted by our national and state legislatures.

The Poffenbargers also argue that measuring their compensatory damages by the diminution in value of their real property will, in effect, facilitate a taking of their property without their consent in violation of § 23 of the Alabama Constitution of 1901. Among other things, § 23 prohibits the “taking of private property for private use without the owner’s consent.” Section 23, however, is a limitation on governmental action, not private action, and therefore is inapplicable to the present case. See id,.; Gober v. Stubbs, 682 So.2d 430, 433 (Ala.1996) (The power of eminent domain “is a power inherent in every sovereign state. Section 23 merely places certain limits on the exercise of the power of eminent domain.”).

It is true, as the Poffenbargers point out, that this Court held in Borland that allowing a defendant to escape payment for injuries it caused to land simply because of market factors unrelated to the defendant’s tortious conduct “would permit private condemnation, which, unquestionably, is impermissible.” The holding in Borland is inapposite to the present case, however. The issue in Borland was whether a plaintiff would be prevented from recovering for injury to his real property caused by the tortious actions of an adjacent landowner because additional, nontortious actions of the defendant increased the overall value of the plaintiffs real property. This Court answered that question in the negative, in effect holding that in order to determine the diminution in value of real property, one must isolate the inquiry to the effect upon the value of the property caused by the tortious conduct. The rule that we apply today is not inconsistent with Borland, does not allow a defendant to escape responsibility for injuring a plaintiffs property, and does not permit “private condemnation.”

Finally, the Poffenbargers argue that limiting compensatory damages in the present case to the diminution in fair market value of their real property would contravene the guaranty in § 13 of the Alabama Constitution that every person has a remedy “for any injury done him, in his lands, goods, person or reputation.” We disagree. Our holding in this case allows the Poffenbargers to seek a remedy in the form of damages measured by their objective, pecuniary loss.

IV. Conclusion

Based on the foregoing, we find that the proper measure of direct, compensatory damages for any injury to the Poffenbar-gers’ real property is the diminution in the fair market value of that real property as a result of the alleged injury. We therefore affirm the trial court’s judgment.

AFFIRMED.

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

WOODALL and BOLIN, JJ., dissent.

WOODALL, Justice

(dissenting).

In my opinion, this Court, in granting the Poffenbargers permission to appeal, has ignored the plain requirement of Rule 5, Ala. R.App. P., that the order appealed from involve “a controlling question of law.” Consequently, I repeat what I have previously said under similar circumstances:

“Under Rule 5, Ala. R.App. P., an appeal by permission may be allowed where an ‘interlocutory order involves a controlling question of law as to which there is substantial ground for difference of opinion.’ (Emphasis added.) Here, although the interlocutory order involves a question of law, it certainly does not involve a ‘controlling’ question of law. Therefore, I must respectfully dissent, because I would dismiss the appeal without prejudice.”

City of Prattville v. Corley, 892 So.2d 845, 852 (Ala.2003) (Woodall, J., dissenting).

In urging this Court to grant the Poffen-bargers permission to appeal, Merit stated:

“Defendants agree that an immediate appeal would materially advance the termination of this litigation and avoid future litigation. [The Poffenbargers] are likely to be more amenable to settlement if this Court affirms the trial court’s order. Additionally, an affirmance would prevent litigation by other owners of oil field property having unreasonable expectations of receiving windfall awards with no requirement that the money be spent on remediation.”

As I stated in Corley, “[w]hile [an] interest in settlement is understandable, and while pretrial settlements are to be encouraged, those factors do not make the issue presented ‘controlling’ for purposes of Rule 5.” 892 So.2d at 852 (Woodall, J., dissenting).

BOLIN, J., concurs.

      . The record reflects that this 32-acre tract of land was, itself, the subject of an oil and mineral rights lease between the Poffenbar-gers and a third-party lessee.

      . Merit and Hertel's motion also sought a partial summary judgment on the question of whether the Poffenbargers were entitled to recover damages for any mental anguish they may have suffered.

      . In contrast, the defendants have proposed two plans for the remediation of the Poffen-bargers’ property. One would cost between $10,000 and $15,000; the other would cost between $40,000 and $56,000.

      .There was evidence that the oil spill affected only 5 of the 32 acres in the tract at issue. The change in value from $38,628 to $32,628 was based upon the assumption that the 5 contaminated acres lost all their value, while the remainder of the acreage lost no value, as a result of the spill.

      . The trial court also entered a summary judgment in favor of Merit and Hertel on their assertion that the Poffenbargers are not entitled to mental-anguish damages. The present appeal does not involve that portion of the trial court’s judgment.

      . The trial court's decision to eliminate the language making its order final under Rule 54(b) was appropriate. As this Court recently stated, “ '[F]or a Rule 54(b) certification of finality to be effective, it must fully adjudicate at least one claim or fully dispose of the claims as they relate to at least one party.’ ” Scrushy v. Tucker, 955 So.2d 988 (Ala.2006) (quoting Haynes v. Alfa Fin. Corp., 730 So.2d 178, 181 (Ala.1999)) (emphasis added).

      . References to "temporary” and "permanent” injury to land in many of the cases referenced in this opinion may relate not just to whether the injury naturally will abate, i.e., correct itself, within some period of time, but whether the injury is reparable by human intervention. In Sloss-Sheffield Steel & Iron Co., this Court stated:
      “Where permanent (that is, irreparable) injury is done to the freehold, it would seem that the only proper measure of damages is the difference between the value of the premises with and without such injury at the time thereof. ...
      "But where the injury is not permanent, and the premises may be restored to their original condition, a different rule prevails in this state.”
      181 Ala. at 581, 61 So. at 936 (emphasis added). In Goodyear Tire & Rubber Co. v. Gadsden Sand & Gravel Co., 248 Ala. 273, 279, 27 So.2d 578, 584 (1946), this Court referenced injuries to land that are "not permanent, but reparable.” One writer, taking note of Alabama decisions indicating that, "(i]f the cost of restoration plus loss of use exceeds the diminution in value of the land, ... the distinction [between permanent and temporary injuries] becomes moot because damages will be limited to the diminution in value,” expressly suggests that "whether an injury is temporary or permanent for the purpose of measuring damages may be a matter of economics, determinable by comparing the cost of restoration to the diminution in value.” William W. Watts, Common Law Remedies in Alabama for Contamination of Land, 29 Cumb. L.Rev. 37, 47 (1999).

      . The Borland Court spoke of whether "the alleged intrusion ” is of a "permanent” nature or a “continuing” nature. It also made reference to whether the "injury ” is permanent or continuing. We note that, regardless of whether the trespass itself is permanent (i.e., whether some object or substance placed upon the land by the trespasser will remain on the land permanently), the injury to the land may be either "permanent” or “temporary.” If the injury is permanent, the rule of damages described in the penultimate paragraph of the above-quoted passage is applicable; if the injury is temporary, the rule of damages described in the last-quoted paragraph would be applicable.

      . In deciding the issue presented in this case — the measure of direct, compensatory damages generally recoverable for injury to real property — we are not presented with, and we do not intend to address, the question whether this rule admits of any exceptions. See generally, e.g., Christopher E. Brown, Comment, Dump It Here, I Need the Money: Restoration Damages for Temporary Injury to Real Property Held for Personal Use, 23 B.C. Envtl. Aff. L.Rev. 699 (1996) (citing authorities supportive of the proposition that compensatory damages may be awarded for loss of value personal to a landowner where the diminution in market value would not fully compensate the landowner for his or her loss, and that such recovery would not be inconsistent with the principles prohibiting awards that constitute economic waste or windfalls to the recipient). See also Restatement (Second) of Torts § 929 cmt. b (1979) (noting that, if the cost of replacing the land in its original condition is disproportionate to the diminution in the value of the land caused by the trespass, damages are measured only by the difference between the value of the land before and after the harm, "unless there is a reason personal to the owner for restoring the original condition”). The Poffenbargers do not advance any such exception. Nor do they argue that the diminution in the fair market value of the land as the appropriate measure of damages should yield to the cost of remediation as the appropriate measure in cases where the latter is not disproportionate to the former.

      . As already noted (see note 9, supra), we do not have before us the question whether this general rule admits of any exceptions. Moreover, we do not have before us the separate question of punitive damages, or for that matter any question regarding consequential or incidental damages.

      . "Trespass is both a legal action and an equitable action ...Storey v. Patterson, 437 So.2d 491, 493-95 (Ala.1983) (recognizing that, in those cases where an injury to real property is such that pecuniary compensation is inadequate, " 'a court of equity will interfere and award an injunction to prevent such injuries’ ” (quoting Smith v. Morris, 181 Ala. 279, 281, 61 So. 276, 276-77 (1913), citing Hooper v. Dora Coal Mining Co., 95 Ala. 235, 10 So. 652 (1892))). In an appropriate case, the equitable remedy of an injunction can be an appropriate form of relief by which a thing or a substance tortiously placed on another’s land can be removed or by which an injury to property otherwise is corrected and the property restored to its pre-trespass condition. See West. Town Plaza Assocs. v. Wal-Mart Stores, Inc., 619 So.2d 1290, 1295-98 (Ala. 1993); Alabama Power Co. v. Drummond, 559 So.2d 158, 162-63 (Ala. 1990) (Houston, J., dissenting). The question presented in this appeal, however, does not require us to address the availability of injunctive relief.

        .See generally, e.g., the Clean Water Act, 33 U.S.C. §§ 1251-1386 (2001); the Oil Pollution Act of 1990, 33 U.S.C. § 2702(a) (1994); the Federal Resource Conservation and Recovery Act of 1976 (“RCRA”), 42 U.S.C. §§ 6901-6992(k) (1994); the Clean Air Act, 42 U.S.C. §§ 7401-7671q (2003); the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERC-LA”), 42 U.S.C. §§ 9601-9675 (1994); 40 C.F.R. parts 1-1700 (2006); Ala.Code 1975, §§ 22-22-1 to 22-40A-24; Ala. Admin. Code (Alabama Department of Environmental Management), Chapter 335.


source: Caselaw Access Project

author: BRYAN, Judge. PITTMAN, Judge,

license: Public Domain

text:
    S.A.T. v. E.D.
    2060164.
    Court of Civil Appeals of Alabama.
    May 11, 2007.

      Karen H. Jackson, Prattville, for appellant.
    B. Diane Paris, Montgomery, for appel-lee.
   BRYAN, Judge.

S.A.T. (“the mother”) appeals a judgment insofar as it modified the child-support obligation of E.D. (“the father”) from $365 per month to $175 per month, found the mother in contempt, and awarded the father an attorney’s fee in the amount of $250. We dismiss the appeal in part and affirm the judgment in part.

The father and the mother, who have never been married, had one child together. That child was born in November 1993. The father resides in Lawrenceville, Georgia, and the mother resides in Montgomery, Alabama.

On November 3, 2005, the father petitioned the juvenile court to find the child dependent. As grounds, the father alleged that the mother had mentally and emotionally abused the child by denying the child communication and contact with the father. The father also alleged that, although a Texas court had previously adjudicated the issue of child support, there had been no adjudication regarding the custody of the child. In addition to the adjudication of dependency, the father sought an award of joint legal and joint physical custody of the child and an award of pendente lite and regular visitation rights with the child.

The father subsequently amended his petition to eliminate his claim seeking joint physical custody. In that amended petition, the father alleged that the mother had not permitted the father to visit with the child.

On December 15, 2005, the juvenile court entered a pendente lite order awarding the father visitation during every third weekend and the Christmas holidays. That order also directed the parties to meet for visitation exchanges at the Alabama-Georgia state line or any other place the parties agreed upon.

On April 20, 2006, the father petitioned the juvenile court to find the mother in contempt. As grounds, the father alleged that the mother had violated the December 15 order by refusing to meet at the Alabama-Georgia state line for visitation exchanges.

The mother responded by filing a pleading titled, in part, “Motion to Strike Petitioner’s Motion for Contempt.” In that pleading, the mother denied that she had willfully violated the December 15 order and alleged that she could not travel to the Alabama-Georgia state line for visitation exchanges due to a back injury and that the parties had agreed to make visitation exchanges in Montgomery. The mother attached, among other things, her physician’s affidavit stating that the mother’s back pain prevents her from sitting for prolonged periods of time.

The juvenile court then held a hearing on the father’s petitions. At the conclusion of the hearing, the juvenile court orally rendered its ruling. The juvenile court found the mother in contempt for failure to comply with the visitation provisions of the December 15 order, modified the father’s child-support obligation by reducing it from $365 per month to $175 per month, and awarded the father an attorney’s fee in the amount of $250.

The juvenile court subsequently entered a written judgment. That judgment awarded the mother primary physical custody; awarded the parties’ joint legal custody; awarded the father visitation rights; modified the father’s child-support obligation by reducing it to $175 per month; awarded the father an attorney’s fee in the amount of $250 for the contempt proceeding; and denied the father’s petition seeking an adjudication of dependency. The mother appealed to this court without filing a postjudgment motion in the juvenile court.

The mother first argues that the juvenile court erred in modifying the father’s child-support obligation because it did so in the absence of a registered Texas child-support judgment pursuant to the provisions of the Uniform Interstate Family Support Act (“UIFSA”), codified at § 30-3A-101 et seq., Ala.Code 1975.

Generally, the court will not consider arguments the appellant did not first present to the trial court. State Farm Mut. Auto. Ins. Co. v. Motley, 909 So.2d 806, 821 (Ala.2005) (“This Court cannot consider arguments advanced for the purpose of reversing the judgment of a trial court when those arguments were never presented to the trial court for consideration or were raised for the first time on appeal.”). However, in this instance, although the mother failed to present to the juvenile court her argument that the father’s child-support obligation could not be modified in the absence of registering the Texas child-support judgment, we will consider that argument because it challenges the juvenile court’s subject-matter jurisdiction to modify the father’s child-support obligation. Challenges to subject-matter jurisdiction may be raised for the first time on appeal, because “ ‘a lack of jurisdiction cannot be waived.’ Takao v. Zoning Bd. of Adjustment of Birmingham, 656 So.2d 873, 874 (Ala.Civ.App.1995).” Morgan v. Morgan, 964 So.2d 24, 28 (Ala.Civ.App.2007).

Section 30-3A-601, Ala.Code 1975, states: “A support order or an income-withholding order issued by a tribunal of another state may be registered in this state for enforcement.” Moreover, the Official Comment to § 30-3A-601 states:

“The common practice under the [Revised Uniform Reciprocal Enforcement of Support Act] was to initiate a new suit for the establishment of a support order, even though there was an existing order for child support. That practice is specifically rejected by UIFSA....
“Under the one-order system of UIF-SA, only one existing order is to be enforced prospectively.... Registration of [a child-support] order in the responding state is the first step to enforcement by a tribunal of that state. Rather than being an optional procedure, ... registration for enforcement under UIFSA is the primary method for interstate enforcement of child support.”

(Emphasis added.) Therefore, when a court of another state has issued a valid child-support order, in order for an Alabama court to exercise subject-matter jurisdiction over a child-support-modification petition, the foreign child-support order must be registered in Alabama.

“Register” as defined in § 30-3A-101(15), Ala.Code 1975, “means to file a support order or judgment determining parentage with the clerk of the appropriate court.” Additionally, § 30-3A-603(a), Ala.Code 1975, provides: “A support order or income-withholding order issued in another state is registered when the order is filed in the appropriate court of this state.” See Wall v. Borosky, 850 So.2d 351, 356 (Ala.Civ.App.2002) (concluding that foreign child-support orders were registered in Alabama when the party sought to domesticate those foreign judgments in an Alabama court).

In the case now before us, there is nothing in the record to establish that either the father or the mother registered the Texas child-support judgment in Alabama. Consequently, the juvenile court could not exercise subject-matter jurisdiction over the issue of child support. A judgment entered by a court that lacks subject-matter jurisdiction is void. Gulf Beach Hotel, Inc. v. State ex rel. Whetstone, 935 So.2d 1177, 1183 (Ala.2006). Such a judgment will not support an appeal. Id. Therefore, we dismiss the mother’s appeal insofar as she appeals the juvenile court’s purported modification of the father’s child-support obligation, and we instruct the juvenile court to vacate that portion of its judgment that modifies the father’s child-support obligation.

The mother also argues that the juvenile court erred by entering its December 15, 2005, pendente lite visitation order without affording the mother notice and an opportunity to be heard. However, we have previously stated:

“ Tf a party contends that there was improper procedure at a hearing, that party must have brought it to the attention of the trial court either by an objection made at the hearing or by a proper and timely posttrial motion for such a contention to be properly considered on appeal.’ Niver v. State Dep’t of Human Res., 521 So.2d 1326, 1328 (Ala.Civ.App.1987); see also Ex parte Linnell, 484 So.2d 455 (Ala.1986); and Embroy v. State Dep’t of Pensions & See., 450 So.2d 127 (Ala.Civ.App.1984).”

K.S. v. G.A.B., 911 So.2d 1085, 1095 (Ala.Civ.App.2005). “We cannot reverse the trial court’s judgment on grounds not presented to the trial court. See Sanders v. Smitherman, 776 So.2d 68, 73 n. 4 (Ala.2000).” Birmingham Bd. of Educ. v. Boyd, 877 So.2d 592, 594 (Ala.2003). See also Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992) (“This Court cannot consider arguments raised for the first time on appeal-”). Because the mother failed to argue to the juvenile court that it had erred by entering an ex parte visitation order, we cannot consider that argument. Therefore, we cannot conclude that the juvenile court erred on that ground.

The mother also argues that the juvenile court’s contempt judgment is not supported by sufficient evidence. Although the mother failed to present this argument to the juvenile court either during the hearing or by a postjudgment motion, our supreme court has previously stated:

“ ‘ “If a court makes findings of fact in a nonjury case, Rule 52(b), Ala. R. Civ. P., excuses the losing party from objecting to the findings or moving to amend them or moving for a judgment or a new trial as a predicate for an appellate attack on the sufficiency of the evidence.” ’ ”

Weeks v. Herlong, 951 So.2d 670, 676 (Ala.2006) (quoting New Props., L.L.C. v. Stewart, 905 So.2d 797, 800 (Ala.2004) (quoting in turn Ex parte James, 764 So.2d 557, 561 (Ala.1999) (Lyons, J., concurring in the result))). In its contempt judgment, the juvenile court made no specific findings of fact regarding its reasons for finding the mother in contempt. Therefore, we must ascertain whether the juvenile court made findings of fact during the contempt proceeding.

The following colloquy took place during the contempt proceeding:

“The Court: Okay. Well, the problem here, ma’am, is that you haven’t complied with visitation because you’re saying that you can’t drive there because of your back, is that right?
“[The mother]: Yes.
“The Court: So what I can do is I’m going to work it and [ya’ll] have a new visitation schedule worked out, so I understand from your lawyers, and I’m going to comply with that but what I’m going to have to do because she can’t drive ....
“The Court: Well, see, the State line’s got a receiving center there, you know, a Georgia State receiving center....
“[The mother]: Pm not going to drive that far, not with my sixteen month old and under the circumstances of he and his wife attitude and ....
“The Court: Attitude? All right. The parties can go have a seat out there. I want to talk to the lawyers a minute.
“(WHEREUPON, the parties were excused from the courtroom and the following proceedings occurred.)
“The Court:' ... Prepare me an Order and the mother is in contempt of court for failure to comply with the prior Court order .... ”

(Emphasis added.) We conclude that, based on the foregoing, the juvenile court stated the basis upon which it found the mother in contempt, i.e., the mother’s statement regarding the father’s and his wife’s “attitude.” Although the mother failed to argue to the juvenile court that it had erred by finding her in contempt based on insufficient evidence, we proceed to address the merits of the mother’s argument based on this court’s construction of the juvenile court’s statements as findings of fact.

The standard of review of a judgment of contempt is as follows:

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

Nave v. Nave, 942 So.2d 372, 377 (Ala.Civ. App.2005) (quoting Stack v. Stack, 646 So.2d 51, 56 (Ala.Civ.App.1994)). Furthermore,

“ ‘ “[i]n ore tenus proceedings, the trial court is the sole judge of the facts and of the credibility of the witnesses, and it should accept only that testimony which it considers worthy of belief.” Clemons v. Clemons, 627 So.2d 431, 434 (Ala.Civ.App.1993).’ ”

Gladden v. Gladden, 942 So.2d 362, 369 (Ala.Civ.App.2005) (quoting Ex parte R.E.C., 899 So.2d 272, 279 (Ala.2004)).

At the hearing, the mother stated that her ailing back rendered her unable comply with the December 15 order requiring her to travel from Montgomery to the Alabama-Georgia state line to meet the father for visitation exchanges. However, the juvenile court could have assessed the mother’s statement regarding the father’s and his wife’s “attitude” as evidence of a willful refusal to comply with the December 15 order. See Gladden v. Gladden, supra (affirming the finding of contempt, concluding that the trial court could have disbelieved the only evidence it had received, which tended to establish that the party did not willfully violate that court’s order). Therefore, we cannot conclude that the juvenile court’s order finding the mother in contempt was in error.

Last, the mother argues that the juvenile court erred by awarding the father an attorney’s fee in the amount of $250. However, the mother failed to argue to the juvenile court that it had erred on this ground. Because we cannot reverse the juvenile court on a ground not argued to it, we decline to address the merits of the mother’s argument. See Andrews, supra; and Boyd, supra.

APPEAL DISMISSED IN PART; AFFIRMED IN PART.

THOMPSON, P.J., and MOORE, J., concur.

PITTMAN, J., concurs in part and concurs in the result, with writing.

THOMAS, J., concurs in the result, without writing.

PITTMAN, Judge,

concurring in part and concurring in the result.

Notably, in this case, the father’s dependency complaint specifically averred that a previous child-support judgment had been entered by a Texas court and that he was paying the mother $365 per month in child support — allegations that the mother' did not deny. Further, in the affidavit accompanying that complaint, the father specifically denied any desire to reduce his child-support obligation.

The juvenile court, in unilaterally reducing the father’s child-support obligation, acted outside its jurisdiction because § 30-3A-611(a), Ala.Code 1975, provides that a court of this state may modify a foreign child-support order only “[ajfter a child-support order issued in another state has been registered in this state ” (emphasis added). Although the juvenile court would have had jurisdiction to act as an “initiating court” to request the appropriate Texas court to modify its judgment, see Ala. Code 1975, § 30-3A-206(a), the juvenile court in this case did not act under that statutory authority.

Accordingly, I agree with the conclusion in the main opinion that the juvenile court acted outside its jurisdiction in modifying the father’s child-support obligation and that that purported modification is void. To the extent that the main opinion dismisses the mother’s appeal as to the child-support issue, I concur. To the extent that the main opinion affirms the juvenile court’s judgment as to the other issues raised by the mother, I concur in the result.

      . The Revised Uniform Reciprocal Enforcement of Support Act, which Alabama did not adopt, is the predecessor to the UIFSA.


author: THOMPSON, Presiding Judge.

text:
    Anthony Wayne DUNN v. Cynthia A. DUNN.
    2050728.
    Court of Civil Appeals of Alabama.
    May 11, 2007.

      M. Virginia Buck, Northport, for appellant.
    Clatus Junkin and Charles E. Harrison of Junkin, Pearson, Harrison & Junkin, LLC, Tuscaloosa, for appellee.
   THOMPSON, Presiding Judge.

Anthony Wayne Dunn (“the father”) sued Cynthia A. Dunn (“the mother”) for a divorce and sought a division of the parties’ property and an award of custody of the parties’ two minor children. The mother answered and counterclaimed, seeking, among other things, an award of custody of the children. On August 24, 2005, the trial court entered an order divorcing the parties and reserving all other issues for a later determination. A guardian ad litem was appointed to represent the children.

On January 3, 2006, the trial court entered an order in which it, among other things, awarded each party custody of one of the two children, waived child support, and fashioned a visitation schedule. In that January 3, 2006, order, the trial court addressed and divided some, but not all, of the marital property. Accordingly, .the January 3, 2006, order did not constitute a final judgment. See Blankenship v. Blankenship, 963 So.2d 112 (Ala.Civ.App.2007) (a divorce order that did not divide the marital property or marital debt was not sufficiently final to support an appeal); and Grubbs v. Grubbs, 729 So.2d 346, 347 (Ala.Civ.App.1999) (concluding that an order that failed to divide all the parties’ marital property was nonfinal). The father filed a purported postjudgment motion on February 1, 2006. However, “[a] true postjudgment motion filed pursuant to Rule 59(e)[, Ala. R. Civ. P.,] may only be made in reference to a final order or judgment. Rule 59(e); Ex parte Troutman Sanders, LLP, 866 So.2d 547, 549-50 (Ala.2003); see also Malone v. Gainey, 726 So.2d 725, 725 n. 2 (Ala.Civ.App.1999).” First Southern Bank v. OBrien, 931 So.2d 50, 52 n. 3 (Ala.Civ.App.2005).

On May 18, 2006, the trial court entered a final judgment in which it fully addressed the issue of a property division and disposed of the remaining issues pending between the parties. We note that the father erroneously asserts that the May 18, 2006, judgment was a nullity because, he contends, it was entered outside the 90 days allowed by Rule 59.1, Ala. R. Civ. P., which sets forth time limits for ruling on a valid postjudgment motion. We conclude, however, that the May 18, 2006, judgment constituted the final judgment in this matter. The father filed his notice of appeal on June 6, 2006, and, therefore, the appeal was taken from a final judgment and was timely filed. See Rule 4(a)(1), Ala. R.App. P. (an appeal must be filed within 42 days of the entry of a final judgment).

The majority of the evidence, presented at the ore tenus hearing concerned the issue of custody of the parties’ two children. During the ore tenus hearing,' the trial court noted that, although it was clear to the court that the parties loved the children, the trial court believed that it could have properly contacted the Department of Human Resources concerning the conduct of the parties with regard to the children during the pendency of these proceedings. No useful purpose would be served by a detailed recitation of all the evidence and allegations that the parties presented to the court; accordingly, we briefly set forth a general statement of the facts as they relate to the issue of custody.

The parties have two sons; at the time of the ore tenus hearing, one son was eleven years old and the other was three years old. The parties separated in July 2004, and during their separation they alternated custody of the children. The father moved from Fayette to Cullman and enrolled the oldest child in school in Cull-man. Accordingly, custody of that child was transferred to the mother only on some weekends. However, the parties continued to alternate custody of their then two-year-old son on a daily basis, which required the parties to place the child in a vehicle for a 90-mile trip each day. At the ore tenus hearing, the trial court expressed disapproval of that arrangement. At the conclusion of the hearing, the trial court ordered the parties to immediately implement a custody arrangement whereby the mother had custody of the younger child, the father had custody of the older child, and the parties alternated weekend visitation with both children. The trial court also instructed the parties to stop attempting to communicate with each other through the oldest child.

Two altercations arose between the parties in the summer of 2004, and those altercations resulted in the parties’ eventual separation. The mother filed domestic-violence charges against the father in connection with one of the incidents; however, she waited until October 2004, after the father had sought temporary custody of both children, to file those charges. The father was convicted in the district court in connection with those charges and, at the time of the hearing, had appealed that conviction to the circuit court. The record indicates that the trial court ultimately determined that there was not sufficient evidence to support the domestic-violence allegations against the father.

The father alleged that as a result of the district-court conviction he lost his job as a court-referral officer; he blamed the mother and her attorney for the termination of his employment. The father has not sought employment since losing his job. The trial court clearly did not find credible the father’s claims that he could not seek or obtain employment because he had to care for the parties’ youngest child and transport the child between the parties’ homes on a daily basis.

The mother accused the father of being manipulative. A psychologist who evaluated the parties also reached that conclusion. The evidence supports a finding that the father had been controlling during the parties’ marriage and that he had interfered with the mother’s relationship with and ability to discipline the older child. Although the father presented evidence indicating that the older child was concerned about leaving the younger child alone with the mother, some evidence in the record would support a conclusion that the father had planted those concerns in the child.

The mother suffers from bipolar disorder, and it is undisputed that that disorder caused a great deal of strain on the parties’ relationship and on the mother’s ability to care for the children during the parties’ marriage. The father presented evidence indicating that on several occasions the mother had failed or forgotten to retrieve the youngest child from day care. The mother has a history of failing to take her medications for her bipolar disorder. The mother testified that she had been functioning much better since her separation from the father and that she was consistently taking her medications. On questioning by the trial court, the mother stated that she recognized the importance of continuing to take her medications in order to prevent the possibility of endangering the children. The mother insisted that the knowledge that the father was not in the house to help with the children served to encourage her to take her medications; she explained that she was committed to taking the medications so that she could take care of the children. The mother felt that she could effectively parent both children if she were awarded custody. The mother, who is a hospice nurse, testified that her parents and the man she is dating are available to help care for the children if she is called to work at night.

The mother testified that she is not good at confrontations and that that had contributed to an inability to discipline the parties’ oldest child. The mother also claimed that the father’s interference or refusal to support her disciplinary efforts during the parties’ separation had affected her ability to effectively discipline the oldest child. The father insisted that he had not had any difficulty in disciplining the oldest child. The father testified that his family lived near him and helped him in caring for the children when needed.

The guardian ad litem submitted a report to the trial court noting that, although they had demonstrated “serious lapses in judgment,” both parties were stable and capable of-caring for the children. The guardian ad litem recommended that the children not be separated from one another. .Despite what he characterized as the “father’s apparent refusal to find work post-separation and some evidence that the father may at times undermine the mother’s role with the older child,” the guardian ad litem recommended that the father receive custody of both children. Karen Turnbow, a psychologist who evaluated the family, recommended that, regardless of which parent was awarded custody, the children not be separated.

With regard to the parties’ marital property, the record indicates that the father has a one-third interest in a limited liability company (“the LLC”) that owns a number of rental properties. The evidence indicates that the father’s interest in the LLC is valued at approximately $384,000, less indebtedness of $260,366, which is, according to the evidence in the record, attributable to the father. The father testified that the parties had purchased the marital home for $75,000, and that the home was subject to mortgage indebtedness of approximately $49,559. The mother testified that she believed the marital home was worth between $90,000 and $100,000. The parties also owned a timeshare interest in a condominium in New Orleans; that time-share interest was valued at $15,000 and was not subject to indebtedness. The father testified that the parties owed $6,373 on a loan; he was not sure how that debt was incurred. The only other indebtedness was a credit-card debt totaling approximately $27,000; the parties had used that credit-card account to pay other indebtedness, including the indebtedness on their vehicles. The husband had made payments on the mortgage and other indebtedness during the parties’ separation. The parties did not present values regarding any other marital property.

The trial court ordered that the marital home be sold and that the proceeds from the sale of the marital home be used to repay the mortgage indebtedness and any other marital indebtedness. The trial court specified that the father was responsible for any remaining, unpaid debt, or that, if the proceeds from the sale of the marital home exceeded the parties’ debts, the parties were to equally divide the remaining funds. In addition, the trial court determined the husband’s one-third interest in the LLC to be marital property, and it awarded the father the entire one-third interest in the LLC but ordered that the father pay the mother $12,272.34 for her portion of his interest in that entity.

On appeal, the father first argues that the trial court erred in fashioning its custody award. In the divorce judgment, the trial court awarded the father custody of the parties’ older child and awarded the mother custody of the younger child. The father argues that the trial court erred in separating the two children; he contends that he should have been awarded custody of both children.

As the father points out, in this state a custody award that works to separate siblings is not favored absent a showing of compelling reasons for the separation. Bishop v. Knight, 949 So.2d 160, 166 (Ala.Civ.App.2006); Mardis v. Mardis, 660 So.2d 597, 599 (Ala.Civ.App.1995); and Pettis v. Pettis, 334 So.2d 913 (Ala.Civ.App.1976). This court has explained:

“As a general rule, this court does not favor a custody determination where siblings are separated. Jensen v. Short, 494 So.2d 90 (Ala.Civ.App.1986). If, however, after receiving ore tenus evidence, the trial court determines there is a compelling reason for the separation, then we are required to review its decision with a strong presumption of correctness. Kennedy v. Kennedy, 517 So.2d 621 (Ala.Civ.App.1987). The trial court is also guided by the interpersonal relationship between each child and parent, and the interpersonal relationship between the children. Cole v. Cole, 442 So.2d 120 (Ala.Civ.App.1983).
“It is also well established that in an initial custody determination, the parties stand on equal footing, without a favorable presumption for either party. Santmier v. Santmier, 494 So.2d 95 (Ala.Civ.App.1986). We have also held that the relationship of the child to each parent is one of the factors that should be considered. Murph v. Murph, 570 So.2d 692 (Ala.Civ.App.1990). The paramount consideration of the court in a child custody case, however, is the child’s best interest. Jensen, 494 So.2d 90.”

Phomsavanh v. Phomsavanh, 666 So.2d 537, 539 (Ala.Civ.App.1995).

In this case, the record indicates that both parents love the children. Although both parties have demonstrated questionable judgment at times, we agree with the trial court that either parent “would be a fit and proper parent to have the custody of these children.” The father insists that he should have been awarded custody of both boys. He cites a number of allegations he made against the mother concerning her ability to parent the children. However, many of those allegations pertain to the mother’s attempts to discipline the older child, whose custody was awarded to the father. Further, the mother presented evidence tending to indicate that the father contributed to or exaggerated some of the difficulties that she had had with the older child. The trial court observed the parties as they testified and was in the best position to evaluate their demeanor and credibility; accordingly, we must defer to the trial court’s factual findings and its rulings based on those findings. Ex parte Fann, 810 So.2d 631, 633 (Ala.2001); Ex parte D.W.W., 717 So.2d 793, 795 (Ala.1998).

It appears from the record that the mother’s relationship with the older child has been damaged and is in need of repair; no such evidence was presented with regard to the mother’s relationship with the younger child. Also, although the parties testified that the children enjoy a close relationship, there is an eight-year age difference between the children.

In reaching its custody determination, the trial court acknowledged that both the guardian ad litem and the psychologist (in whom “[the trial court] ha[d] all of the confidence in the world”) had recommended that the children not be separated. However, despite those recommendations, the trial court believed that its custody determination “would be in. the best interest of the two minor children.” As noted earlier, the best interests of the children are the paramount consideration in determining custody. Phomsavanh v. Phomsavanh, 666 So.2d at 539 (citing Jensen 'v. Short, 494 So.2d 90 (Ala.Civ.App. 1986)). It is clear that the trial court considered the recommendations of the guardian ad litem and the psychologist but that the evidence presented to the trial court convinced it to reject those recommendations. This court might not have reached the same custody determination as did the trial court. However, given the deference afforded the trial court’s judgment when ore tenus evidence is presented in a custody matter, together with the trial court’s careful consideration of the recommendations of the guardian ad litem and the psychologist, we cannot say that the father has demonstrated that the trial court exceeded its discretion in the instant case.

The father next argues that the trial court’s January 3, 2006, “judgment” contains a mathematical error. The father predicates this argument on his erroneous assumption that the January 3, 2006, order constituted the final judgment in this case and that the May 18, 2006, judgment was a nullity. As already discussed, however, the January 3, 2006, order did not constitute a final adjudication of all of the issues presented in this divorce action, and, accordingly, that order did not constitute a final judgment; the May 18, 2006, judgment constituted the final judgment in this matter. The May 18, 2006, judgment corrected the mathematical error contained in the January 3, 2006, order. Therefore, the father’s argument on this issue is moot. See Ex parte Coosa Valley Health Care, Inc., 789 So.2d 208, 218 n. 4 (Ala.2000).

The father last argues that the trial court’s property division was inequitable. In reviewing the judgment of a trial court in a divorce case, in which the trial court has made findings of fact based on oral testimony, we are governed by the ore tenus rule. Accordingly, the trial court’s judgment based on those findings is presumed correct and will not be disturbed on appeal unless it. is plainly and palpably wrong. Hartzell v. Hartzell, 623 So.2d 323 (Ala.Civ.App.1993). The ore tenus presumption of correctness is based on the trial court’s being in the unique position of being able to observe the witnesses and to assess their demeanor and credibility. Hall v. Mazzone, 486 So.2d 408, 410 (Ala.1986). A division of marital property rests soundly within the trial court’s discretion. Albertson v. Albertson, 678 So.2d 118 (Ala.Civ.App.1996); Welch v. Welch, 636 So.2d 464 (Ala.Civ.App.1994). Factors that the trial court may consider in fashioning a property division include “the source of [the parties’] common property, the ages, sex and health of the parties, their future prospects and station in life, the length of the marriage, and in appropriate cases, the conduct of the parties regarding the cause of divorce.” Lutz v. Lutz, 485 So.2d 1174, 1176 (Ala.Civ.App.1986). The trial court’s division of marital property does not have to be equal, only equitable, and the determination of what is equitable rests within the sound discretion of the trial court. Golden v. Golden, 681 So.2d 605, 608 (Ala.Civ.App.1996).

The father testified that the parties earned a total gross annual income of $100,000 and that the mother earned approximately $50,000. Thus, it appears that the parties’ incomes at the time of the separation were virtually equivalent. The father had not sought new employment since his move to Cullman. Although the father blamed that failure on the purported need to transport the youngest child on a daily basis while the parties alternated custody of the child, the trial court found that excuse “utterly ridiculous.”

The trial court awarded the father his entire interest in the LLC, but it ordered him to pay the mother $12,272.34, representing her portion of his current interest in the LLC. In addition, the mother was awarded the interest in the parties’ timeshare condominium, which was valued at $15,000. The trial court ordered the marital home sold and the proceeds used to pay the parties’ marital debts; if any proceeds were left over after the payment of the marital debts, the parties were to equally divide those proceeds. Thus, although the father argues on appeal that he was ordered to be responsible for all of the parties’ marital debts, the parties in fact share the payment of those debts.

The evidence indicates that the marital home is valued at between $90,000 and $100,000, and that, after the mortgage indebtedness is repaid, the equity in the marital home will be between $40,000 and $50,000. The father testified that the parties’ marital debts, excluding the mortgage indebtedness, totaled approximately $33,373. The mother was awarded the parties’ time-share condominium, and the father retained his interest in the LLC. Given the parties’ assets and debts, we cannot say that the father has demonstrated that the trial court exceeded its discretion in fashioning its property division. Accordingly, we affirm.

AFFIRMED.

PITTMAN, BRYAN, THOMAS, and MOORE, JJ., concur.

      . Because the father asserted that the May 18, 2006, judgment was a nullity, the arguments in his brief to this court address only the January 3, 2006, order. We address the father’s appeal as if the arguments in his brief were asserted with regard to the May 18, 2006, final judgment.

      . The evidence indicates that the witness who appraised the LLC attributed one-third of the LLC's outstanding indebtedness to the father for the purpose of valuing his interest in the LLC.

      . On appeal, the father does not challenge the trial court’s determination that his interest in the LLC constituted marital property.


author: WISE, Judge. BASCHAB, Judge

text:
    Lacy Ray BUTLER v. STATE of Alabama.
    CR-05-0189.
    Court of Criminal Appeals of Alabama.
    June 30, 2006.
    Rehearing Denied Aug. 11, 2006.
    Lacy R. Butler, pro se.
    Troy King, atty. gen., and J. Thomas Leverette, asst. atty. gen., for appellee.
   WISE, Judge.

Lacy Ray Butler appeals the circuit court’s denial of his motion made pursuant to § 13A-5-9.1, Ala.Code 1975, to reconsider his sentences of life imprisonment without the possibility of parole imposed upon application of the Habitual Felony Offender Act (the “HFOA”) for his October 1984 convictions for first-degree rape and first-degree robbery. See Kirby v. State, 899 So.2d 968 (Ala.2004).

Butler filed his motion on March 2, 2005, alleging that he was entitled to have his sentences of life imprisonment without the possibility of parole reconsidered because, he said, the three previous felony convictions used by the State for enhancement purposes were for nonviolent offenses. The circuit court initially granted Butler’s request for sentence reconsideration on July 13, 2005. The State objected to the court’s ruling and, by motion filed on July 26, 2005, requested that the court reconsider its decision resentencing Butler to life imprisonment. The court conducted a hearing on the State’s motion on August 31, 2005. On September 2, 2005, the circuit court entered a new order denying Butler’s motion for sentence reconsideration, and reinstating the original sentences. This appeal followed.

On appeal, Butler argues that the circuit court erred in denying his motion for reconsideration. Before we reach the merits of Butler’s claim, we must address the timing of the court’s ruling on the State’s motion for reconsideration. The State’s motion, although timely, was not ruled upon by the circuit court within 30 days of its original order purporting to grant Butler’s motion for reconsideration. As a general rule, a court retains jurisdiction to modify its ruling for 30 days after the ruling being modified was issued. See State v. Monette, 887 So.2d 314 (Ala.Crim.App.2004). The recognized exception to this general rule is a motion for a new trial filed pursuant to Rule 24.1(a), Ala. R.Crim.P. (a motion for a new trial may be filed “[w]hen the defendant has been sentenced .... ”). This Court has not recognized a motion to reconsider the granting of a § 13A-5-9.1 motion as a motion that would fall within the scope of Rule 24, Ala.R.Crim.P., and toll the time for further action by the circuit court or for filing a notice of appeal.

However, the basis for applying the 30-day rule is the premise that the original ruling is legal and valid. A void judgment has no legal effect on later proceedings in a case. As the Alabama Supreme Court recently noted:

“ ‘A void judgment is one which, from its inception, is and forever continues to be absolutely null, without legal efficacy, ineffectual to bind the parties or to support a right, of no legal force and effect whatever, and incapable of enforcement in any manner or to any degree.’ ”

Boykin, v. Law, 946 So.2d 838, 849 (Ala.2006) (quoting Loyd v. Director, Dep’t of Pub. Safety, 480 So.2d 577, 579 (Ala.Civ.App.1985)).

Here, because the court entered its September 2, 2005, order more than 30 days after its original July 13, 2005, order we must examine the validity of the court’s original order purporting to resentence Butler to life imprisonment. Our examination of the record does not indicate that Butler was eligible for sentence reconsideration because he did not meet the definition of a “nonviolent offender.”

In 2001, the Alabama Legislature enacted Act No. 2001-977, Ala. Acts 2001, codified at § 13A-5-9.1, Ala.Code, mandating that the 2000 amendments to the HFOA be applied retroactively. The statute provides:

“The provisions of Section 13A-5-9 shall be applied retroactively by the sentencing judge or presiding judge for consideration of early parole of each nonviolent convicted offender based on evaluations performed by the Department of Corrections and approved by the Board of Pardons and Paroles and submitted to the court.”

In Kirby v. State, 899 So.2d 968 (Ala.2004), the Alabama Supreme Court discussed which inmates were eligible to seek resentencing, stating:

“Reading § 13A-5-9.1 in conjunction with § 13A-5-9, it is clear that a sentencing judge or a presiding judge can resentence only two narrowly defined classes of habitual offenders: those who had been sentenced to life imprisonment without the possibility of parole under the mandatory provisions of the HFOA upon conviction of a Class A felony with no prior Class A felony convictions; and those who had been sentenced to life imprisonment under the mandatory provisions of the HFOA upon conviction of a Class B felony. Moreover, of those habitual offenders, the judge can resen-tence only those who are nonviolent offenders.
“We conclude that the state’s trial judges have the authority under the statute to determine whether a defendant is a nonviolent offender and that those judges are competent to make that determination based upon the nature of the defendant’s underlying conviction, other factors brought before the judge in the record of the case, and information submitted to the judge by the DOC and the Parole Board concerning the inmate’s behavior while incarcerated.”

899 So.2d at 974 (emphasis added).

While § 13A-5-9.1, Ala.Code 1975, does not specifically define which offenders are considered violent, we can look to caselaw and statutes for guidance in that area. Section 13A-11-70, Ala.Code 1975, provides, in pertinent part:

“For the purposes of this division [‘Pistols’], the following terms shall have the respective meanings ascribed by this section:
“(2) Crime of violence. Any of the following crimes or an attempt to commit any of them, namely, murder, manslaughter ] (except manslaughter arising out of the operation of a vehicle), rape, mayhem, assault with intent to rob, assault with intent to ravish, assault with intent to murder, robbery, burglary, kidnapping and larceny.”

(Emphasis added.)

“[T]he fact that a crime is defined as a ‘violent offense’ under § 13A-11-70 and/or § 12-25-32, although certainly a relevant and appropriate consideration, is not binding on a circuit court in determining whether an inmate is a ‘nonviolent convicted offender’ within the meaning of § 13A-5-9.1....
“Of course, the statutory designation of an inmate’s underlying offense as a ‘violent offense’ is certainly an important consideration in determining whether an inmate is a ‘nonviolent convicted offender’; nothing in § 13A-5-9.1 or Kirby suggests otherwise. However, the statutory designation of an offense is not the only factor a circuit court may consider, and the fact that the inmate’s underlying conviction for an offense statutorily defined as a ‘violent offense’ does not preclude a circuit court from considering other factors presented to it, such as the facts and circumstances surrounding the underlying offense, the facts and circumstances surrounding the inmate’s prior convictions, the inmate’s prison record, and any ‘other factors brought before the judge in the record of the case.’ Kirby, 899 So.2d at 974.... [Wjhether an inmate is a ‘nonviolent convicted offender’ is based on the totality of the circumstances.
“By totality of the circumstances, we mean the totality of the information before the circuit court when it rules on the § 13A-5-9.1 motion. A circuit court is not required to solicit additional information before ruling on such a motion. To the contrary, a circuit court may summarily deny a § 13A-5-9.1 motion without holding an evidentiary hearing or otherwise requiring the submission of additional evidence not before it as part of the pleadings, if it so chooses. Nothing in § 13A-5-9.1 or Kirby requires otherwise. In addition, in determining whether an inmate is a ‘nonviolent convicted offender’ within the meaning of § 13A-5-9.1, what weight to afford each factor presented to it is within the circuit court’s discretion. A circuit court is not required to make specific findings of fact regarding the weight it affords each factor, and in reviewing a circuit court’s determination of whether an inmate is a ‘nonviolent convicted offender,’ this Court will give the circuit court great deference regarding the weight it afforded the factors presented to it, and we will presume that the circuit court properly considered and weighed each factor presented, unless the record affirmatively shows otherwise. See, e.g., Prestwood [v. State, 915 So.2d 580, 583 (Ala.Crim.App.2005) ] (recognizing the limited appellate review of a motion filed under § 13A-5-9.1).”

Holt v. State, 960 So.2d 726, 737-38 (Ala.Crim.App.2006).

In the present case, Butler was convicted of first-degree rape and first-degree robbery. The trial court conceded in its September 2, 2005, order denying Butler’s motion to reconsider his sentences that it had exceeded the scope of its discretion when it originally granted the motion on July 13, 2005. The circuit court stated:

“At the time that this Court entered its July 13, 2005, order modifying the life without parole sentences, it was under the mistaken impression that it could not rely solely on the convictions that gave rise to these sentences in determining whether the defendant was or is a ‘violent’ offender for purposes of application of Ex parte Kirby. In fact the Court of Criminal Appeals had not issued published opinions since Kirby that would provide trial courts with the guidance necessary to review these cases.[]
“The Court of Criminal Appeals has held in several memorandum opinions that the trial court may reasonably conclude that a defendant is a violent offender based upon the offense for which he is convicted.
“Although the defendant meets the criteria for being a non-violent offender based upon his prior felony convictions and his prison record, the facts underlying his convictions in this case establish that he is a violent offender who is not eligible for a reduced sentence under Kirby.
“Therefore, this Court’s order of July-18, 2005 setting aside and resentencing the defendant is hereby set aside and rendered void to the extent that it changed the defendant’s sentences in this case. He is therefore sentenced to life without parole in the Robbery 1st and Rape 1st cases and to life in the Kidnapping 2nd case.”

(R. 115-16.) Although circuit courts have almost absolute discretion to determine whether an inmate is a nonviolent offender within the meaning of § 13A-5-9.1, Ala.Code 1975, we agree with the circuit court that it exceeded its discretion in initially granting Butler’s motion for reconsideration. As this Court explained in Holt, a circuit court has absolute discretion in determining what weight to afford the factors presented to it. In its September 2, 2005, order, the circuit court considered all of the factors, gave the most weight to the facts underlying Butler’s convictions, and, consistent with Holt, then determined that it had exceeded its discretion in initially determining that Butler was a nonviolent offender. We agree with that determination. Therefore, the July 13, 2005, order was void for lack of jurisdiction'. Accordingly, the court retained jurisdiction to substitute its September 2, 2005, legal order. See, e.g., Sorrells v. State, 667 So.2d 142 (Ala.Crim.App.1994).

For the reasons stated above, the trial court’s judgment in this case is due to be, and is hereby, affirmed.

AFFIRMED.

McMILLAN, P.J., and SHAW, J., concur.

BASCHAB, J., dissents, with opinion, which COBB, J., joins.

BASCHAB, Judge

(dissenting).

The majority concludes that the circuit court’s September 2, 2005, order is valid because the circuit court’s July 13, 2005, order was void. However, the appellant appealed only as to the circuit court’s September 2, 2005, order denying his motion for reconsideration of his sentences. Therefore, this court should not look beyond the facial validity of the circuit court’s July 13, 2005, order because that ruling has not been appealed to this court.

The circuit court’s July 13, 2005, order was facially valid. Therefore, its September 2, 2005, order is void because it was entered more than thirty days after the July 13, 2005, order. See State v. Monette, 887 So.2d 314 (Ala.Crim.App.2004). Accordingly, this court should dismiss this appeal.

      . As part of this same trial, Butler was also convicted of second-degree kidnapping and was sentenced to life imprisonment. However, Butler did not seek reconsideration of that sentence.

      . We note that in situations where the circuit court has granted a § 13A-5-9.1 motion, there appears to be no provision under Alabama law for the State to seek appellate review of that ruling. Thus, it seems that the State's only remedy to challenge such a reduction in sentence would be by petitioning this Court for a writ of mandamus filed within seven days from the date of the circuit court’s ruling. See Ex parte Thomas, 828 So.2d 952 (Ala.2001).

      . We note that this Court recently issued its opinion in Holt v. State, 960 So.2d 726 (Ala. Crim.App.2006), in which it discussed Kirby v. State, 899 So.2d 968 (Ala.2004), and its progeny and provided further guidance to trial courts in ruling on Kirby motions.

      . If the circuit court questioned the validity of its July 13, 2005, order, it could have set aside that ruling within thirty days and retained jurisdiction over the case.