author: MOORE, Judge.

text:
    Lamont WILLIAMS v. Annette Marie WILLIAMS.
    2100944.
    Court of Civil Appeals of Alabama.
    Feb. 24, 2012.

      Dinah P. Rhodes of Rhodes & Creech, Huntsville, for appellant.
    D. Milburn Gross, Jr., Meridianville, for appellee.
   MOORE, Judge.

Lamont Williams (“the father”) appeals from a judgment of the Madison Circuit Court (“the trial court”) dismissing a modification petition he filed against Annette Marie Williams (“the mother”) on August 6, 2009, on the ground of lack of subject-matter jurisdiction.

The father and the mother were divorced by a judgment of the Circuit Court of St. Louis County, Missouri, on June 1, 1998 (“the divorce judgment”). The divorce judgment awarded the father custody of the two minor children born of the parties’ marriage. Under a section entitled “Child Support,” the divorce judgment stated that the mother would not owe child support because, at that time, she was unemployed but that she would be responsible for one-half of the children’s uninsured dental and medical expenses. In 2005, the father, who had moved with the children to Alabama, filed a petition in the trial court entitled “Petition to Modify Divorce Decree and Petition to Accept and Make St. Louis, Missouri Dissolution Judgment and Divorce an Alabama Divorce Decree.” The clerk of the trial court designated the action initiated by that petition as case no. DR-05-439 (“the 2005 action”). The mother filed a counterclaim in the 2005 action, requesting a modification of the custody and visitation provisions of the divorce judgment. On July 18, 2006, the trial court entered in the 2005 action a judgment (“the 2006 modification judgment”) purporting to modify the visitation, medical, dental, and child-support provisions of the divorce judgment.

On August 6, 2009, the father filed in the trial court a “Petition for Rule Nisi and Modification” (the action initiated by that petition is hereinafter referred to as “the 2009 action”), alleging that the mother had willfully refused to pay her share of the children’s medical and dental expenses as required by the 2006 modification judgment. The father further alleged that material changes in circumstances had occurred since the entry of the 2006 modification judgment such that the mother should be required to pay monthly child support for the benefit of the parties’ youngest child. The clerk of the trial court designated the 2009 action as case no. DR-05-439.01. On September 2, 2009, the mother filed an answer, pro se, denying the father’s allegations.

The trial court held a hearing in the 2009 action on March 22, 2011. In that hearing, the father presented evidence of the increased financial needs of the parties’ youngest child and of the incomes of the father and the mother. During the presentation of the evidence, the trial court raised an issue, sua sponte, as to whether it had subject-matter jurisdiction over the father’s petition, asking the parties if the divorce judgment had been properly registered in the 2005 action as required by the Uniform Interstate Family Support Act (“the UIFSA”), Ala.Code 1975, § 30-3A-101 et seq. The trial court thereafter recessed the hearing so that the parties could gather information to address the issue. The next day, the mother filed a motion to dismiss the 2009 action for lack of subject-matter jurisdiction. The trial court reconvened the hearing and advised the parties that, upon reviewing the filings in the 2005 action, it had determined that the father had not properly registered the divorce judgment.

After listening to oral argument, the trial court entered a judgment on March 28, 2011, dismissing the 2009 action. The trial court noted in that judgment that it had also set aside the 2006 modification judgment based on the mother’s motion to dismiss for lack of jurisdiction, which, as the trial court found, the mother had actually filed in the 2005 action. The trial court further found that it lacked any independent jurisdictional basis for modifying the child-support provisions of the divorce judgment in the 2009 action. On March 31, 2011, the father filed a motion requesting an evidentiary hearing; the trial court treated that motion as a request under Rule 59, Ala. R. Civ. P., that it “reconsider” its order dismissing the 2009 action. On June 1, 2011, the trial court conducted a hearing at which the father presented evidence indicating that the mother had resided in Alabama since 2005 and that the mother had not contested the authority of the trial court to hear the 2005 action and to enter the 2006 modification judgment. After receiving briefs on the issue from both parties, the trial court entered an order on June 13, 2011, denying the father’s Rule 59 motion. The father timely appealed to this court.

The father argues first that the mother could not collaterally attack the 2006 modification judgment entered in the 2005 action. In its June 13, 2011, post-judgment order, the trial court indicated that the mother had filed a motion to dismiss for lack of subject-matter jurisdiction in the 2005 action, which it had treated as a motion to set aside the 2006 modification judgment, see Rule 60(b)(4), Ala. R. Civ. P. (authorizing a motion seeking to vacate a judgment on ground that it is void for lack of subject-matter jurisdiction). The June 13, 2011, postjudgment order reflects that the trial court had granted the mother’s motion and set aside the 2006 modification judgment in the 2005 action.

The filing of a Rule 60(b)(4) motion, even one filed under the same case number as the judgment being attacked, is a collateral attack on the judgment. Walker v. Blackwell, 800 So.2d 582 (Ala. 2001). As a general rule, a judgment that is regular on its face and that indicates subject-matter and personal jurisdiction is conclusive on collateral attack. Reneke v. Reneke, 897 So.2d 1101, 1105 (Ala.Civ.App. 2003). However, “ ‘^Judgments entered •without subject-matter jurisdiction can “be set aside at any time as void, either on direct or on collateral attack.” ’ ” Kaufman v. Kaufman, 934 So.2d 1073, 1082 (Ala.Civ.App.2005) (quoting Alves v. Board of Educ. for Guntersville, 922 So.2d 129, 134 (Ala.Civ.App.2005), quoting in turn International Longshoremen’s Ass’n v. Davis, 470 So.2d 1215, 1217 (Ala.1985)). “ ‘A judgment is subject to collateral attack for lack of jurisdiction if a jurisdictional defect is apparent on the face of the record.’ ” Walker v. Blackwell, 800 So.2d at 586 (quoting Manning v. Wingo, 577 So.2d 865, 867 (Ala.1991)). Therefore, the mother was not precluded from collaterally attacking the 2006 modification judgment on the ground that the trial court had lacked subject-matter jurisdiction to enter it.

The father next argues that the trial court did not have any evidence before it upon which to conclude that it had lacked subject-matter jurisdiction to enter the 2006 modification judgment. However, a trial court can take judicial notice of the pleadings and other materials on file in the clerk’s record. See Richardson v. Richardson, 531 So.2d 1241, 1242 (Ala.Civ. App.1988). The trial court indicated that, after reviewing the materials in the clerk’s files in the 2005 action, it discovered that the father had not properly registered the divorce judgment, i.e., that a jurisdictional defect appeared on the face of the record. See Walker, supra. Thus, we reject any contention that the trial court lacked any evidence on which to base its finding that the father had failed to properly register the divorce judgment.

The father next argues that the trial court, for a variety of reasons, erred in setting aside the 2006 modification judgment; however, the father appealed only the March 28, 2011, judgment, which dismissed only the petition for a rule nisi and the petition to modify the divorce judgment filed on August 6, 2009. We, therefore, cannot consider any arguments addressed toward the propriety of the judgment setting aside the 2006 modification judgment. See Landry v. Landry, 42 So.Sd 755, 757-58 (Ala.Civ.App.2009) (recognizing that an appellant’s failure to properly file a notice of appeal as to a particular judgment prevents an appellate court from obtaining jurisdiction to review that judgment). Nevertheless, because the trial court relied on its vacation of the 2006 modification judgment as its basis for dismissing the 2009 action, out of an abundance of caution we address the father’s contentions and find that the trial court did not err in setting aside the 2006 modification judgment.

In the 2005 action, the father sought solely a modification of, not the enforcement of, the child-support provisions of the divorce judgment. Section 30-3A-609, Ala.Code 1975, a part of the UIFSA, provides, in pertinent part:

“A party ... seeking to modify ... a child-support order issued in another state shall register that order in this state in the same manner provided in [§ 30-3A-602, Ala. Code 1975,] if the order has not been registered.”

By its plain language, § 30-3A-609 mandates that a party seeking modification of a foreign child-support order must register that order in the manner prescribed by the UIFSA. The father argues that § 30-3A-613, Ala.Code 1975, applied to the 2005 action and relieved him of the duty of registering the foreign support judgment. However, § 30-3A-613(a) provides:

“If all of the parties who are individuals reside in this state and the child does not reside in the issuing state, a court of this state has jurisdiction to enforce and to modify the issuing state’s child-support order in a proceeding to register that order”

(Emphasis added.) We acknowledge that the mother and the father resided in Alabama in 2005 and that the children had left Missouri so that § S0-SA-613(a) applies, see Mathews v. Mathews, 368 Ark. 252, 244 S.W.3d 660 (2006) (holding that Arkansas’s version of the UIFSA applied to registration and modification of foreign child-support order, even though father, mother, and child resided in state); however, under that statute, the trial court could modify the child-support provisions in the divorce judgment only “in a proceeding to register” that judgment. Section 30-3A-613(a) does not relieve a parent seeking to modify a foreign child-support order of the requirement of registering that order even if both parents and all the children have left the issuing state and now reside in this state. See Mathews v. Mathews, 98 Ark. App. 30, 249 S.W.3d 840 (2007) (reversing lower court’s judgment for failing to require registration of Missouri judgment in modification action in which both parents and the children had all moved to Arkansas).

Section 30-3A-602(a), Ala.Code 1975, provides:

“A support order or income-withholding order of another state may be registered in this state by sending the following documents and information to the appropriate court in this state:
“(1) a letter of transmittal to the court requesting registration and enforcement;
“(2) two copies, including one certified copy, of all orders to be registered, including any modification of an order;
“(3) a sworn statement by the party seeking registration or a certified statement by the tribunal or collection agency showing the amount of any arrearage;
“(4) the name of the obligor and, if known:
“(i) the obligor’s address and Social Security number;
“(ii) the name and address of the obligor’s employer and any other source of income of the obligor; and “(iii) a description and the location of property of the obligor in this state not exempt from execution; and
“(5) the name and address of the obligee and, if applicable, the agency or person to whom support payments are to be remitted.”

Although the father essentially acknowledges in his brief to this court that he did not strictly comply with § 30-3A-602, he argues that only substantial compliance should be required in a modification case in which the parties and the children reside in Alabama. See Twaddell v. Anderson, 136 N.C.App. 56, 523 S.E.2d 710 (1999). We need not decide that point, however. In his brief to this court, the father admits that the appellate record does not contain the documents that, he asserts, demonstrate that he substantially complied with § 30-3A-602. The burden is on the father, as the appellant, to ensure that the record on appeal contains sufficient evidence to warrant a reversal. Goree v. Shirley, 765 So.2d 661, 662 (Ala.Civ. App.2000). This court may not take judicial notice of the trial court’s records in the 2005 action. See J.B. v. Cleburne Cnty. Dep’t of Human Res., 992 So.2d 34, 40-41 (Ala.Civ.App.2008). Hence, this court has no basis for finding that the father substantially complied with § 30-3A-602.

The father also points out that other jurisdictions have held that, in the absence of prejudice to the opposing party, a failure to properly register a- foreign judgment does not deprive a court of jurisdiction to modify.that judgment under the UIFSA. See Kendall v. Kendall, 340 S.W.3d 483 (Tex.App.2011); Owen v. Phillips, 126 Wash.App. 487, 108 P.3d 824 (2005); and Nelson v. Halley, 827 So.2d 42, 45-46 (Miss.Ct.App.2002) (en banc). However, this court, like the appellate courts of many other states, see, e.g., Auclair v. Bolderson, 6 A.D.3d 892, 895, 775 N.Y.S.2d 121 (N.Y.App.Div.2004); Lamb v. Lamb, 14 Neb.App. 337, 707 N.W.2d 423, 436 (2005); and Cepukenas v. Cepukenas, 221 Wis.2d 166, 584 N.W.2d 227, 229 (1998), has consistently held that a foreign child-support order must be registered before an Alabama circuit court obtains subject-matter jurisdiction to modify that order. See R.J.R. v. C.J.S., 72 So.3d 643, 647 (Ala.Civ.App.2011); and S.A.T. v. E.D., 972. So.2d 804, 807 (Ala.Civ.App.2007). The father has not presented this court with any compelling reason for overruling that line of cases.

Because the father did not register the divorce judgment, the trial court lacked subject-matter jurisdiction to enter its 2006 modification judgment. The father argues that the trial court nevertheless could not vacate the 2006 modification judgment because the mother, by failing to contest the lack of registration, thereby confirmed the divorce judgment under ' §. 30-3A-606, Ala.Code 1975. However, that Code section provides the procedure by which a nonregistering party may contest the validity or enforcement of a registered order. Section 30-3A-606(b) provides that a registered order will be confirmed by operation of law if a nonregistering party fails to timely contest it. According to § 30-3A-606(a), a nonregistering party has 30 days from the “date of service of notice of the registration” to contest the order. Section 30-3A-606 does not apply to a situation in which a foreign child-support order has not been duly registered, and it does not provide in any manner that a failure to contest a lack of registration thereby confirms an unregistered foreign child-support order. Because § 30-3A-606 is inapplicable, we conclude that the fact that the mother did not contest the lack of registration of the divorce judgment in the 2005 action is immaterial under the general rule that subject-matter jurisdiction cannot be conferred by the consent of the parties. University of South Alabama Hosp. v. Blackmon, 987 So.2d 1138, 1143 (Ala.Civ.App.2007).

We also reject any contention that the doctrines of the law of the case and res judicata precluded the trial court from setting aside the 2006 modification judgment. Both doctrines are designed to avoid repeated litigation over an issue that has already been decided. See Belcher v. Queen, 39 So.3d 1023, 1038 (Ala.2009); and Williams v. Moore, 36 So.3d 533, 540-41 (Ala.Civ.App.2008) (citing Whisman v. Alabama Power Co., 512 So.2d 78, 81 (Ala. 1987)). The father argues that the trial court at least impliedly decided that it had subject-matter jurisdiction when it modified the divorce judgment in the 2005 action and that the trial court, even if it acted in error in the 2005 action, was thereby prevented from later deciding otherwise. However, Alabama caselaw provides that the issue of subject-matter jurisdiction can be raised at any time, even after a judgment has been entered, K.M.G. v. B.A., 73 So.3d 708, 710 (Ala.Civ.App. 2011), and, as set out at length above, that a judgment entered without subject-matter jurisdiction can always be collaterally attacked.

Moreover, the record indicates that the parties did not previously litigate the issue of subject-matter jurisdiction. As acknowledged by the father, the mother never contested his failure to properly register the divorce judgment before 2011. The trial court even acknowledged that it had proceeded in the 2005 action without first ascertaining whether it had acquired subject-matter jurisdiction by a proper registration of the divorce judgment. Hence, the authorities cited by the father for the proposition that “if the question of subject-matter jurisdiction has been fully litigated in the original forum, the issue cannot be retried in a subsequent action between the parties,” see Davis v. Davis, 305 U.S. 32, 59 S.Ct. 3, 83 L.Ed. 26 (1938); Treinies v. Sunshine Mining Co., 308 U.S. 66, 60 S.Ct. 44, 84 L.Ed. 85 (1939); and Sherrer v. Sherrer, 334 U.S. 343, 68 S.Ct. 1087, 92 L.Ed. 1429 (1948), are inapt.

Besides attacking the decision of the trial court to vacate the 2006 modification judgment, the father makes no argument that the trial court erred in dismissing the 2009 action. The March 28, 2011, judgment is therefore affirmed.

The mother’s and the father’s requests for attorney fees on appeal are denied.

AFFIRMED.

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

      . See Stansbury v. Stansbury, (No. 99CA9, Aug. 9, 1999) (Ohio Ct.App.1999) (not selected for publication) ("Although it [is] unusual for a trial court to sua sponte find it lacks jurisdiction and to declare its earlier, unap-pealed judgment to be void, certainly it is always appropriate for a trial court, or an appellate court for that matter, to review the matter before it to determine jurisdiction even if none of the parties have brought the issue to the court’s attention. We find the matter was properly before the trial court on the objection of CSEA, and it was appropriate for the trial court to determine the jurisdictional issue sua sponte.").

      . The father did not provide this court with the record from the 2005 action.

      . Although the divorce judgment did not order the mother to pay regular child support due to her unemployment, the trial court concluded that the divorce judgment did award child support by requiring the mother to pay a share of the children's medical and dental expenses. The father does not dispute that finding. Hence, this was not a case in which a foreign jurisdiction had failed to address child support so that no registration of the previously entered foreign judgment would have been required. See Ex parte Davis, 82 So.3d 695, 701 (Ala.Civ.App.2011).


source: Caselaw Access Project

author: BRYAN, Judge.

license: Public Domain

text:
    Allen LEE, Jr. v. Geraldine LEE.
    2100940.
    Court of Civil Appeals of Alabama.
    Feb. 24, 2012.

      Tiffany B. McCord, Montgomery, for appellant.
    Laura R. Grantham, Monroeville, for ap-pellee.
   BRYAN, Judge.

Allen Lee, Jr. (“the husband”), appeals from a judgment entered by the Monroe Circuit Court (“the trial court”) that divorced him from Geraldine Lee (“the wife”) insofar as it divided the parties’ property and awarded the wife permanent periodic alimony.

On January 7, 2009, the wife filed a complaint for a divorce seeking a divorce from the husband on the ground of incompatibility of temperament. She sought an equitable division of the parties’ marital property and debts, an award of alimony, and an award of attorney fees, among other things. The husband subsequently filed an answer to the wife’s complaint and a counterclaim for a divorce.

The trial court conducted an ore tenus hearing on May 10, 2010, and the husband and the wife were the only witnesses to testify. The parties stipulated that they had been married for 31 years; that a divorce should be granted on the ground of incompatibility of temperament; that they had agreed to the division of their personal property, except for one mobile home; and that the only issues before the trial court were the division of real property, the division of the mobile home, and the wife’s request for alimony.

At the time of the final hearing, the husband and the wife were both living in the parties’ marital residence. The parties stipulated that the marital residence was worth $68,060 and that there was a mortgage secured by the marital residence in the amount of $33,217.43. The monthly mortgage payment totaled $463.70. The record indicates that a storage building behind the marital residence had caught on fire and that the parties’ insurance company had agreed to pay the parties approximately $14,000 on their claim relating to the damage to that building. The parties also owned real property in Beatrice, and they stipulated that the value of that property was $15,690. The parties owned a mobile home that was located in Frisco City that was valued at $3,000; however, there was a lien on the mobile home in the amount of $6,000, and the monthly payment on the mobile home was $422.

The wife stated that she had a high-school diploma, that she worked outside the home throughout the marriage, and that, in May 2009, she became a board-certified nursing assistant after attending Reid State Technical College for six months. According to the wife, in 2007 she earned $12,500, in 2008 she earned $13,000, and in 2009 she earned $16,800 (approximately $1,400 a month). The wife stated that she did not know how much the husband had earned each year that they had been married because they had filed separate income-tax returns. However, she stated that the husband had paid the majority of the household bills, including her monthly automobile payment, but that she had paid the water, gas, and electric utility bills. The wife estimated that her monthly expenses totaled $2,347, not including the monthly mortgage payment on the marital residence. At the time of the hearing, the husband was paying the monthly mortgage debt on the marital residence. The wife stated that she wanted to be awarded the marital residence and that she wanted the husband to continue paying the mortgage debt on the marital residence. The wife requested an award of permanent periodic alimony in the event that the trial court awarded her the marital residence and did not require the husband to pay the mortgage debt on the marital residence.

The record indicates that the husband owned and operated a construction company and that he had done so for approximately 13 years. According to the husband, in 2006, the husband’s business had adjusted gross income totaling $8,333.08; in 2007, the husband’s adjusted gross income was $4,226 and the adjusted gross income of his business and the parties’ store, discussed infra, was $3,402. The husband stated that he did not file an income-tax return in 2008 because he did not earn enough income to pay any taxes in 2008. The husband testified that his income in 2009 totaled $12,452. The husband stated that he had gotten behind on the mortgage-debt payments in 2008 and that he had struggled to pay all the parties’ financial obligations.

Regarding the husband’s construction company, the wife stated that the husband had always had a lot of work and that there had never been a time during the parties’ marriage that the husband had been without funds to pay the parties’ bills. According to the wife, she had seen the husband carrying large sums of cash, and she stated that the husband had given her cash whenever she told him that she needed something. The wife presented evidence indicating that the husband had deposited $134,800 into his checking account from March 2009 through December 2009, but there is no indication in the record of what amount of money the husband took out of his account to pay expenses related to the receipt of that income.

The wife stated that she was willing to allow the husband to be awarded his business and his tools. The record indicated that the husband had two trucks associated with the operation of his business, but neither party presented any evidence regarding the value of the trucks or the tools related to the husband’s business. The husband stated that he had credit-card debt, and he indicated that that debt was related to the his business expenses. However, when the wife’s attorney specifically asked the husband if his credit-card debt was related to his business expenses, the following exchange occurred:

“THE COURT: There is no claim that [the husband’s construction company] is marital property. Is that what I was reading?
“[The wife’s attorney]: No claim to [the husband]’s business.
“THE COURT: Let’s keep going.”

The wife’s attorney did not ask the husband any more questions about his business-related debt. Later during the husband’s testimony, the husband’s attorney asked the husband about his business-related debts, and the wife’s attorney objected. The trial court sustained the objection but qualified the ruling by stating: “Unless we can say that [the husband’s construction company] is marital property.” The husband’s attorney stated that the husband was the sole proprietor of the construction company, and the trial court responded:

“It is going to be one way or the other. It is either a family business or it is not. If [the construction company] is a marital asset, then I will divide those assets and the trucks and the tools and everything else, then I will consider the debts that are for that business. Right now there is no claim for that. It has to be one way or the other.”

No further evidence was presented by either party concerning the debts related to the husband’s business, and there was no evidence presented by either party concerning the value of the husband’s business.

The parties purchased a store, Mexia Supermarket, in 2006 for $50,000. The wife stated that she and the husband subsequently took out a $30,000 mortgage on the marital residence and that the husband had told her the money would be used to pay for expenses he had incurred through his business to get the store started. The wife stated that she ran the store and that she incurred credit-card debt related to the operation of the store. At the time of the hearing, the wife’s credit-card debt related to the operation of the store totaled $7,300. She stated that the store closed in September 2008 and that the husband had claimed the business losses related to the store — approximately $75,000.

The husband, who was 48 years old, testified that he had recently been diagnosed with rheumatoid arthritis and that it affected his business because he could not get around. According to the husband, his doctor had told him that he probably would not be able to work in five years.

On September 1, 2010, the trial court entered a judgment divorcing the parties on the ground of incompatibility of temperament. The wife was awarded the marital residence, the personal property in her possession, and 60% of the insurance proceeds from the fire damage to the parties’ storage building. The wife was ordered to pay the credit-card debt in her name. The husband was awarded his construction business, two trucks associated with his business, the real property in Beatrice, the mobile home, the personal property in his possession, and 50% of the insurance proceeds from the fire damage to the parties’ storage building. The husband was ordered to pay the credit-card debt in his name, the mortgage on the marital residence, and the debt on the mobile home. In addition, the husband was required to pay the wife $500 a month in permanent periodic alimony.

On September 30, 2010, the husband filed a postjudgment motion pursuant to Rule 59, Ala. R. Civ. P., and the trial court subsequently denied the husband’s motion. The husband timely filed a notice of appeal.

On appeal, the husband argues that the trial court’s division of property and award of alimony is inequitable and that the divorce judgment is therefore due to be reversed. Regarding those issues, this court has held:

“ ‘The law is clear that matters such as alimony and property division pursuant to divorce rest soundly within the discretion of the trial court and will not be disturbed on appeal except where such discretion was palpably abused. Montgomery [v. Montgomery, 519 So.2d 525 (Ala.Civ.App. 1987) ]. The issues concerning alimony and the division of property are interrelated, and in determining whether the trial court abused its discretion as to either of those issues, the entire judgment must be considered. Montgomery, supra. Many factors, including the conduct of the parties regarding the cause of the divorce, are proper to consider in making an equitable division. Lutz v. Lutz, 485 So.2d 1174 (Ala.Civ.App.1986). The award is not required to be equal, but must be equitable in light of the evidence, and what is equitable rests within the sound discretion of the trial court. Ross [v. Ross, 447 So.2d 812 (Ala.Civ. App.1984) ]. An award that favors one party over the other is not in and of itself an abuse of discretion. Jordan v. Jordan, 547 So.2d 574 (Ala. Civ. App.1989).’
“Boykin v. Boykin, 628 So.2d 949, 952 (Ala.Civ.App.1998).
“Moreover, this court has stated that “ ‘[t]he factors the trial court should consider in dividing the marital property include “the ages and health of the parties, the length of their marriage, their station in life and their future prospects, their standard of living and each party’s potential for maintaining that standard after the divorce, the value and the type of property they own, and the source of their common property.” Covington v. Covington, 675 So.2d 436, 438 (Ala. Civ.App.1996).’
“Courtright v. Courtright, 757 So.2d 453, 456 (Ala.Civ.App.2000).... Further, ‘[i]n examining whether the trial court’s property division amounts to an abuse of its discretion, the proper question to be resolved is whether the property division was equitable under the facts of the case.’ Sumerlin v. Sumerlin, 964 So.2d 47, 49 (Ala.Civ.App.2007) (citing Golden v. Golden, 681 So.2d 605 (Ala.Civ.App. 1996)).”

Martin v. Martin, 85 So.3d 414, 421-22 (Ala.Civ.App.2011).

Furthermore, this court’s standard of reviewing a judgment entered after the presentation of ore tenus evidence is well settled:

“ ‘[W]hen a trial court hears ore tenus testimony, its findings on disputed facts are presumed correct and its judgment based on those findings will not be reversed unless the judgment is palpably erroneous or manifestly unjust.’ Philpot v. State, 843 So.2d 122, 125 (Ala. 2002). ‘ “The presumption of correctness, however, is rebuttable and may be overcome where there is insufficient evidence presented to the trial court to sustain its judgment.” ’ Wattman v. Rowell, 913 So.2d 1083, 1086 (Ala.2005) (quoting Dennis v. Dobbs,, 474 So.2d 77, 79 (Ala.1985)).”

Fadalla v. Fadalla, 929 So.2d 429, 433 (Ala.2005).

The value of the majority of the property awarded to the parties was undisputed. However, our review of the record reveals some confusion about whether the parties contended that the husband’s business was marital property. Neither party directly stated on the record whether they believed the business, which produced income that was used to support the parties’ household during the marriage, was marital property. Our review of the record indicates that the trial court, based on its understanding of the parties’ positions, did not consider the husband’s business to be marital property, despite the fact that the trial court specifically awarded the husband his business and two trucks related to his business in the divorce judgment. Regardless, even if the trial court considered the husband’s business to be marital property, there was no evidence presented regarding the value of the husband’s business, including any assets owned by the business.

Considering the undisputed evidence presented during the ore tenus hearing, the wife was awarded assets totaling approximately $75,060 ($68,060 marital residence + $7,000 insurance proceeds), and she was ordered to pay her credit-card debt, which totaled $7,300, for a total property award equal to $67,760. In addition, the wife was awarded $500 a month in periodic alimony, or approximately $6,000 in alimony each year.

On the other hand, the husband was awarded assets totaling $25,690 ($15,690 for Beatrice property + $3,000 for mobile home + $7,000 in insurance proceeds), and he was ordered to pay marital debts totaling approximately $39,217 ($33,217 mortgage, on marital residence 4- $6,000 lien on mobile home). Thus, the value of the husband’s - property award totaled -$13,527. As stated above, the husband was also awarded his business, tools, and two trucks related to his business, but no evidence was presented regarding the value of any of those items.

The record revealed that the parties had been married for 31 years, and there was no evidence presented that indicated that the misconduct of either party contributed to the breakdown of the marriage. The wife’s age is not set forth in the transcript from the final hearing, but the record indicates that the husband was 48 years old and that he had recently been diagnosed with rheumatoid arthritis. Although the trial court could have concluded that, at the time of trial, the husband had a greater earning capacity than the wife, the husband presented undisputed evidence .indicating that his future earning capacity was likely to be diminished as a result of his arthritis diagnosis. On the other hand, the wife had recently been certified as a nursing assistant and the record indicates that she had begun earning more income in 2009 than she had in the two years before she filed for a divorce. Furthermore, there was no evidence presented indicating that the wife had any health problems or that her future earning capacity would be diminished in any way.

In Marlin v. Martin, this court reversed a divorce judgment insofar as it divided the parties’ marital property and debts because, we found, the award was inequitable and constituted an abuse of discretion. 85 So.3d at 423. In that case, the husband was awarded the parties’ marital residence, which was valued at $191,000, and was ordered to assume approximately $40,000 in marital debt. Id. at 419. The wife, on the other hand, was awarded an automobile worth $7,000, but she was ordered to assume debt in the amount of $10,000. Id. at 419. We held that such an award was inequitable even in light of the fact that the wife had admitted to having had an extramarital affair. Id. at 423.

We conclude that the trial court’s division of property and award of alimony in the present case is inequitable. Certainly, a division of property may favor one party over the other, but, in this case, we find no evidence to support such a disproportionate division of property. See Stewart v. Stewart, 62 So.3d 523, 530 (Ala.Civ.App. 2010) (concluding that the division of property in a divorce judgment was inequitable when the husband was awarded $46,000 in marital property, in addition to his separate estate, and the wife was “essentially awarded nothing”). Therefore, we reverse the trial court’s judgment insofar as it divided the parties’ marital property and awarded the wife $500 a month in periodic alimony. We remand the cause with instructions to the trial court to adjust the division of property and the award of alimony in a manner it deems appropriate in order to award the husband an equitable share of the parties’ marital estate.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

THOMPSON, P.J., dissents, without writing.

      . At the time the wife filed her complaint for a divorce, the parties had one minor child; however, that child had attained the age of majority by the date of the final hearing.

      . We note that neither party offered the husband’s income-tax returns into evidence, and they do not appear in the record on appeal.

      . The husband testified that he had paid labor and materials costs related to his business from the funds deposited into his checking account.

      . There is no indication in the record of the source of the payment for the Mexia Supermarket.

      . The record indicates that the husband had filed a single income-tax return for his business and the store while the store was in operation and that the wife had always filed a separate income-tax return.


text:
    D.J.G. v. F.E.G.
    2101214.
    Court of Civil Appeals of Alabama.
    March 2, 2012.

      Richard W. Bell, Birmingham, for appellant.
    Submitted on appellant’s brief only.
   BRYAN, Judge.

D.J.G. (“the husband”) appeals from a divorce judgment insofar as it ordered him to pay child support for K.R.G., the eldest of the three children born during his marriage to F.E.G. (“the wife”). We reverse and remand.

The husband and the wife married on June 14, 2006. Later that same month, the wife gave birth to K.R.G. The mother gave birth to a second child, K.O.G., in 2008, and a third child, K.J.G., in 2009. The husband and the wife separated in February 2010, and the wife sued the husband for a divorce on March 31, 2010. In her complaint, the wife alleged that she was better suited to serve as the primary physical custodian of K.R.G., K.O.G., and K.J.G., and she sought primary physical custody of the children and child support. The husband filed an answer denying that the wife was better suited to serve as the primary custodian of K.R.G., K.O.G., and K.J.G. and a counterclaim in which he sought a divorce, primary physical custody of K.R.G., K.O.G., and K.J.G., and child support. However, the husband subsequently filed a pleading alleging that, after filing his answer and counterclaim, he had had DNA testing performed on himself, K.R.G., K.O.G., and K.J.G. and that, although the DNA testing had confirmed that he was the biological father of K.O.G. and K.J.G., it had established that he was not the biological father of K.R.G. The husband’s pleading challenged the presumption that he was the father of K.R.G. arising from KR.G.’s. birth during the husband’s marriage to the wife and sought a determination that the husband was not the biological father of K.R.G.

At trial, before any witnesses were called to testify, the attorneys for the husband and the wife stated on the record that the husband and the wife were stipulating that the husband was not the biological father of K.R.G. In addition, the husband’s attorney stated that the husband was not seeking custody of K.R.G. and that he objected to paying child support for K.R.G. The wife’s attorney stated that the wife was seeking sole and exclusive custody of K.R.G. and that she was claiming that the husband was obligated to pay child support for K.R.G. despite the fact that he was not KR.G.’s biological father.

During the trial, in response to questions asked by her attorney, the wife testified as follows:

“Q. All right. Now, uh, you admit and you understand that your husband has gone out and gotten a DNA test as to [K.R.G.], right?
“A. Correct.
“Q. And we stipulated and agreed that that DNA test be admitted here in this Court. You know that, right?
“A. Yes.
“Q. All right. And you don’t contest the results of that DNA test, do you?
“A. No, sir.
“Q. All right. You understand that [the husband] is not the biological father of [K.R.G.], right?
“A. Correct.”

Following the trial, the trial court entered a divorce judgment on April 12, 2011. The divorce judgment did not make an express determination regarding whether the husband was the father of K.R.G.; however, it stated:

“1. The [wife] is awarded care, custody and control of [K.R.G.], date of birth June ... 2006.
“2. The [wife] and the [husband] shall share joint legal custody of [K.O.G.], date of birth, March ... 2008 and [K.J.G.], date of birth, August ... 2009; however, the [wife] shall be deemed the primary physical custodian of said children.
“8. The [husband] is awarded visitation with all the above named children per the terms of the ‘Standard Custody and Visitation Order’ attached to this order, made a part of this order, and identified as exhibit ‘A’; except however,
“(a) The [husband] is not entitled to mid-week visitations, and
“(b) Exchanges for visitations lasting more than 24 hours shall continue to take place at the Alabama Welcome Center on Interstate Highway 65.
“The parties may alter these visitation rights by agreement of both parties.
“4. For the use and benefit of all said minor children, the [husband] shall pay to the [wife] the sum of $415.08 per month as child support....
“5. The [wife] shall be responsible for 1/2 of any uninsured medical, optical, and dental expenses of said children and the [husband] shall be responsible for 1/2 of said expenses. Either party shall reimburse the other party for his/ her portion of said expenses within 30 days after the party paying the expenses presents the other party with a copy of a statement, invoice, or bill and a copy of the receipt or canceled check showing that it was, in fact, paid.
“6. The [wife] shall claim the children as dependents in even numbered tax years, and the [husband] shall claim the children as dependents in odd numbered tax years. The parties shall cooperate in completing the IRS documentation necessary to establish such dependent claims.”

(Emphasis added.)

On May 10, 2011, the husband filed a Rule 59, Ala. R. Civ. P., postjudgment motion. Among other things, the post-judgment motion asserted that the trial court had erred because, the husband said, despite his proving that he was not the biological father of K.R.G., the trial court had ordered him to pay child support for K.R.G., had ordered him to pay one-half of KR.G.’s uninsured medical and dental expenses, and had authorized him to claim K.R.G. as a dependent for tax purposes in alternating years. On May 11, 2011, the trial court set the husband’s Rule 59 motion for hearing on June 22, 2011. On June 22, 2011, the trial court initialed an entry on the case-action summary noting that only the wife’s attorney had appeared at the hearing that day and denying the husband’s Rule 59 motion; however, that order was never entered in the State Judicial Information System (“the SJIS”). On June 23, 2011, the husband moved the trial court to set aside its order denying the husband’s Rule 59 motion on the ground that his attorney had not been notified of the June 22, 2011, hearing. On June 24, 2011, the trial court initialed an entry on the case-action summary setting aside its June 22, 2011, order denying the husband’s Rule 59 motion and setting a hearing on that motion for July 27, 2011; however, the only portion of that order that was entered.in the SJIS was the portion setting the hearing for July 27, 2011. On June 28, 2011, the trial court rendered a written order denying the husband’s Rule 59 motion; however, that order was never entered in the SJIS. On September 16, 2011, the husband appealed to this court.

We must first determine whether the husband’s notice of appeal was timely filed because a tardy notice of appeal would not invoke the jurisdiction of this court. See Rule 2(a)(1), Ala. R.App. P. (“An appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court.”); and Williamson v. Fourth Ave. Supermarket, Inc., 12 So.3d 1200, 1202 (Ala.2009) (“ ‘The filing of a timely notice of appeal is a jurisdictional act.’ ” (quoting Painter v. McWane Cast Iron Pipe Co., 987 So.2d 522, 529 (Ala.2007))). The filing of the husband’s Rule 59 motion suspended the running of the 42-day period for the husband to file his notice of appeal until that motion was ruled upon. See Rule 4(a)(3), Ala. R.App. P.:

“The filing of a post-judgment motion pursuant to Rules 50, 52, 55, or 59 of the Alabama Rules of Civil Procedure (ARCP) shall suspend the running of the time for filing a notice of appeal. In cases where post-judgment motions are filed, the full time fixed for filing a notice of appeal shall be computed from the date of the entry in the civil docket of an order granting or denying such motion. If such post-judgment motion is deemed denied under the provisions of Rule 59.1 of the Alabama Rules of Civil Procedure, then the time for filing a notice of appeal shall be computed from the date of denial of such motion by operation of law, as provided for in Rule 59.1.”

Because neither the trial court’s June 22, 2011, order denying the husband’s Rule 59 motion nor the trial court’s June 28, 2011, order denying that motion was entered in the SJIS, neither of those orders had any legal effect. See Gilliam v. Gilliam, 43 So.3d 615, 618 (Ala.Civ.App.2010) (“A[n order], although it has been rendered, is not considered effective until it has been entered within the meaning of Rule 58(c)[, Ala. R. Civ. P.].”); and Rule 58(c), Ala. R. Civ. P. (“An order or a judgment shall be deemed ‘entered’ within the meaning of these Rules and the Rules of Appellate Procedure as of the actual date of the input of the order or judgment into the State Judicial Information System.”). Rule 59.1, Ala. R. Civ. P., provides that, subject to exceptions not here applicable, a Rule 59 postjudgment motion may not remain pending for more than 90 days and that, if the trial court fails to rule on the motion within the 90-day period, the motion is deemed to be denied “as of the date of the expiration of the [90-day] period.” In Williamson v. Fourth Avenue Supermarket, Inc., 12 So.3d at 1203-04, the supreme court stated:

“To eliminate any confusion caused by contrary or imprecise language in previous caselaw, we now reiterate that, consistent with the express language of Rule 59.1, Ala. R. Civ. P., a failure by the trial court to dispose of any post-judgment motion during the period specified in Rule 59.1 constitutes a denial of the motion ‘as of the date of the expiration of the period.’ Rule 59.1, Ala. R. Civ. P. That is, a postjudgment motion not otherwise ruled upon is denied as a matter of law on the 90th day after the motion is filed, or, where applicable, on the last day of any extension of the 90-day period. The 42-day ‘time for filing a notice of appeal shall be computed from the date of denial of such motion by operation of law, as provided for in Rule 59.1.’ Rule 4(a)(1), Ala. R.App. P. Thus, the time for filing a notice of appeal begins to run on the 90th day following the filing of a postjudgment motion, absent a ruling on the motion by the trial court or a valid extension of the 90-day period. To the extent [Ex parte ] Leroy Hill Coffee [Co., 937 So.2d 508, 509-10 (Ala.2006),] or any other previous case indicates otherwise, those cases are hereby expressly overruled.”

Accordingly, in the ease now before us, the trial court’s failure to enter a ruling on the husband’s Rule 59 motion in accordance with Rule 58(c), Ala. R. Civ. P., before the expiration of 90 days from the filing of the motion resulted in the denial of the motion as of the date of the expiration of that 90-day period. The husband’s Rule 59 motion was filed on May 10, 2011; therefore, it was denied by operation of law on August 8, 2011, the 90th day after it was filed. The husband then had 42 days from August 8, 2011, to file his notice of appeal. See Rule 4(a)(3), Ala. R. Civ. P. He filed his notice of appeal on September 16, 2011, the 39th day after August 8, 2011. Therefore, his notice of appeal was timely filed, and this court has jurisdiction over his appeal.

The husband argues that the trial court erred in ordering him to pay child support for K.R.G. because, he says, he rebutted the presumption that he was the father of K.R.G. arising from KR.G.’s birth during the husband’s marriage to the wife by clear and convincing evidence proving that he was not the biological father of K.R.G. Because the trial court received evidence ore tenus, our review is governed by the following principles:

“ ‘ “ ‘[W]hen a trial court hears ore tenus testimony, its findings on disputed facts are presumed correct and its judgment based on those findings will not be reversed unless the judgment is palpably erroneous or manifestly unjust.”” Water Works & Sanitary Sewer Bd. v. Parks, 977 So.2d 440, 443 (Ala.2007) (quoting Fadalla v. Fadalla, 929 So.2d 429, 433 (Ala.2005), quoting in turn Philpot v. State, 843 So.2d 122, 125 (Ala. 2002)). ‘“The presumption of correctness, however, is rebuttable and may be overcome where there is insufficient evidence presented to the trial court to sustain its judgment.” ’ Wattman v. Rowell, 913 So.2d 1083, 1086 (Ala.2005) (quoting Dennis v. Dobbs, 474 So.2d 77, 79 (Ala.1985)). ‘Additionally, the ore tenus rule does not extend to cloak with a presumption of correctness a trial judge’s conclusions of law or the incorrect application of law to the facts.’ Waltman v. Rowell, 913 So.2d at 1086.”

Retail Developers of Alabama, LLC v. East Gadsden Golf Club, Inc., 985 So.2d 924, 929 (Ala.2007).

“If an issue of non-parentage is raised in a domestic relations action in this state, a court of this state having jurisdiction over the domestic relations action shall have the authority to adjudicate parentage or non-parentage pursuant to this chapter.” § 26-17-104, Ala.Code 1975. Accordingly, in the case now before us, the trial court had jurisdiction to determine whether the husband was the father of K.R.G.

The husband was the presumptive father of K.R.G. because K.R.G. was born during the husband’s marriage to the wife. See § 26-17-204(a)(l), Ala.Code 1975 (“A man is presumed to be the father of a child if: (1) he and the mother of the child are married to each other and the child is born during the marriage.”). However, a presumptive father may rebut the presumption that he is the father of the child by introducing clear and convincing evidence establishing that he is not the biological father of the child. See § 26-17-607(a), Ala. Code 1975 (“[A] presumed father may bring an action to disprove paternity at any time.”); and § 26-17-607(b), Ala.Code 1975 (“A presumption of paternity under this section may be rebutted in an appropriate action only by clear and convincing evidence.”).

In Gann v. Gann, 705 So.2d 509, 511 (Ala.Civ.App.1997), a case decided under the statutory predecessor of § 26-17-607(b), which, like § 26-17-607(b), provided that a presumption of paternity could be rebutted by “clear and convincing evidence,” this court stated that “[t]he ‘clear and convincing evidence’ that rebuts the presumption that a man is the father of a child born during his marriage is evidence that tends to ‘show that it is naturally, physically, or scientifically impossible for the husband to be the father.’ ” (Quoting D.D. v. C.L.D., 600 So.2d 265, 268 (Ala.Civ. App.1991).) In the case now before us, the wife’s admission that DNA testing had established that the husband was not the biological father of K.R.G. constituted “evidence that tends to ‘show that it is ... scientifically impossible for the husband to be the father’” of K.R.G. Consequently, we conclude that the husband rebutted the presumption that he was the father of K.R.G. arising from KR.G.’s birth during the husband’s marriage to the wife.

In C.T.J. v. A.S.J., 816 So.2d 61, 64 (Ala.Civ.App.2001), this court held that, because clear and convincing evidence in that case established that it was impossible for the husband to be the father of a child born during his marriage to the wife, “the trial court’s judgment declaring the husband to be the father of the child during the parties’ marriage (and imposing an obligation of support upon the husband) was ‘plainly and palpably wrong[ ]’ and ... is due to be reversed.” (Emphasis added.)

In the case now before us, the divorce judgment did not expressly determine whether the husband was the father of K.R.G.; however, it impliedly determined that the husband was the father of K.R.G. because it (1) granted the husband visitation with K.R.G., (2) ordered the husband to pay child support for K.R.G. and to pay one-half of KR.G.’s uninsured medical, optical, and dental expenses, and (3) authorized the husband to claim K.R.G. as a dependent for tax purposes in odd-numbered years. Those provisions of the divorce judgment are inconsistent with a determination that the husband is not the father of K.R.G. See C.T.J. v. A.S.J. (holding that the trial court had erred in imposing an obligation to pay child support when clear and convincing evidence established that the husband was not the father of the child). We conclude that the trial court erred in impliedly determining that the husband was the father of K.R.G. because, as discussed above, the wife’s admission that DNA testing had established that the husband was not the father of K.R.G. constituted clear and convincing evidence rebutting the presumption that the husband was the father of K.R.G. Moreover, because clear and convincing evidence established that the husband was not the father of K.R.G., the trial court erred in ordering the husband to pay child support for K.R.G. Id. Accordingly, we reverse the judgment of the trial court insofar as it (1) impliedly determined that the husband was the father of K.R.G. and (2) ordered the husband to pay child support for K.R.G., and we remand the cause for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

THOMPSON, P.J., and PITTMAN, THOMAS, and MOORE, JJ„ concur.


author: PITTMAN, Judge.

text:
    D.M.P.C.P. v. T.J.C., Jr.
    2100323.
    Court of Civil Appeals of Alabama.
    March 2, 2012.

      Anne C. Chistensen of South Alabama Law, LLP, Amdalusia, for appellant.
    David J. Harrison, Geneva, for appellee.
   PITTMAN, Judge.

On September 11, 2007, the Covington Circuit Court entered a “Judgment of Divorce” in case no. DR-06-806, purporting to divorce D.M.P.C.P. (“the mother”) and T.J.C., Jr. (“the father”); to divide their marital assets and debts; to reserve the issues of custody, support, and visitation regarding the parties’ minor child, T.J.C. Ill, until the conclusion of the criminal proceedings then pending against the father for sexual abuse of S.G., the mother’s minor child by a former marriage; and to direct the entry of a final judgment pursuant to Rule 54(b), Ala. R. Civ. P. The circuit court further awarded pendente lite custody of T.J.C. Ill to the mother, granted the father visitation rights, ordered the father to pay pendente lite child support, and “reserved jurisdiction to hold ... further hearings ... upon written motion of either party.”

In January 2009, the father sought a hearing on the reserved issues of custody, support, and visitation, alleging that he had been acquitted of the criminal offense. Following ore tenus proceedings, the circuit court entered a “Final Decree Concerning Child Custody, Visitation, and Support” on July 30, 2010, awarding custody of T.J.C. III to the father; ordering the mother to pay child support; determining that the father was in arrears in the payment of pendente lite child support; and reserving jurisdiction to “set the exact amount thereof in some future proceedings.”

On September 2, 2009, after the father had requested a hearing on the reserved issues of custody, support, and visitation but before the hearing was held in February 2010, the mother filed an emergency petition to modify the father’s visitation rights. Her petition was docketed as case no. DR-06-306.01. The circuit court ultimately dismissed that petition, concluding that the issues raised therein were moot in light of its July 30, 2010, order. Although the mother’s notice of appeal indicates that she is appealing orders entered in both case no. DR-06-306 and case no. DR-06-306.01, the circuit court’s July 30, 2010, order renders the matters raised in case no. DR-06-306.01 moot.

Because the circuit court’s failure to adjudicate the amount of the father’s child-support arrearage renders the July 30, 2010, order from which the mother has appealed nonfinal, we must dismiss this appeal. See Trousdale v. Tubbs, 929 So.2d 1020, 1022-23 (Ala.Civ.App.2005), in which this court stated:

“ ‘An appeal ordinarily will lie only from a final judgment — i.e., one that conclusively determines the issues before the court and ascertains and declares the rights of the parties involved.’ Bean v. Craig, 557 So.2d 1249, 1253 (Ala.1990). ‘The issue of whether a judgment is final is jurisdictional.’ Hardy v. State ex rel. Chambers, 541 So.2d 566, 567 (Ala.Civ. App.1989). Matters of jurisdiction are of such importance that a court may consider them ex mero motu. Bacadam Outdoor Adver., Inc. v. Kennard, 721 So.2d 226 (Ala.Civ.App.1998) (citing Nunn v. Baker, 518 So.2d 711 (Ala. 1987), and Wallace v. Tee Jays Mfg. Co., 689 So.2d 210 (Ala.Civ.App.1997)). When an appellate court determines that an order from which an appeal is taken is not final and will not support an appeal, that court must dismiss the appeal on its own motion. Hardy v. State ex rel. Chambers, supra.

“In this case, the trial court has yet to rule with regard to the issue of a child-support arrearage; therefore, the ... order from which the mother appealed is not a final judgment capable of supporting the appeal. Accordingly, we must dismiss this appeal.”

APPEAL DISMISSED.

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


author: THOMPSON, Presiding Judge.

text:
    Sheila SMITH v. Mary Prue WALKER et al.
    2101054.
    Court of Civil Appeals of Alabama.
    March 2, 2012.
    Chad Lee, Wedowee, for appellant.

      Lister H. Proctor of Proctor & Vaughn, L.L.C., Sylacauga, for appellees.
   THOMPSON, Presiding Judge.

Sheila Smith (“Sheila”) appeals from a judgment of the Clay Circuit Court ordering the sale of a certain parcel of land and the division of the proceeds therefrom. For the reasons set forth herein, we reverse the trial court’s judgment and remand the cause to the trial court for the entry of a new judgment.

Sheila’s maternal grandfather was M.D. Amason (“Amason”). Amason’s children included Sheila’s mother Maxine Caldwell (“Maxine”), Sybil Martin (“Sybil”), Mary Prue Walker (“Mary”), Manard D. Amason (“Manard”), Robert H. Amason (“Robert”), Carol Canady (“Carol”), Shirley Buckhan-nan (“Shirley”), Deborah Darlene Amason Wise (“Deborah”), and Sue Amason (“Sue”). Sue died as a teenager leaving no children. Sybil died before the time relevant to the present litigation, leaving two sons, Jeffery Martin (“Jeffery”) and Jonathan Martin (“Jonathan”). Sheila was Maxine’s only child.

Amason owned a substantial amount of real property. In his will, he devised separate parcels of land to each of his children except Sue. The parcels Amason devised to Deborah are the subject of the present litigation and are referred to herein as “the disputed property.” The disputed property comprises approximately 175 acres.

The paragraph at the end of the portion of Amason’s will devising his land to his children described the nature of those devises as follows:

“Each and every item and tract of land as described in paragraphs one to nine hereinabove, is willed to each party therein named, for and during their natural life. During their natural life each shall have the right to use, occupation, income, rents, and the right to cut and remove timber therefrom and, at the death of each of my said children, the real estate so willed shall vest in his or her children, if any, share and share alike.”

Thus, Amason devised to each of his children a life estate in his or her parcel and a contingent remainder in fee simple in the child’s children, with Amason’s estate maintaining a reversion in fee simple. See 3 Richard R. Powell, Powell on Real Property § 20.02[3] (June 2002). We note that a reversion is a vested interest that is alienable. See Baugh v. Moon, 289 Ala. 280, 282, 267 So.2d 130, 131 (1972) (“A reversion is a present vested interest or estate and it arises by construction and operation of law whenever a Grantor has conveyed less than his whole interest or estate; the undisposed portion being his when the grant is terminated. This vested interest is subject to be conveyed by the Grantor by deed, to be bequeathed by will, or could be reached by execution and passed to execution purchaser.”). Ama-son’s will provided that his executor was to sell the residuary of his estate and “divide the proceeds therefrom among [his] children living and the heirs of anyone who has deceased, to his or her heirs, under the laws of descent and distribution.” Amason died at some point before the time relevant to the present litigation.

In 1995, Deborah, who did not have children, executed a will in which she devised her entire estate to Sheila, her niece. On the day of a family reunion in 2008, Deborah presented a quitclaim deed (“the first quitclaim deed”) to her siblings that conveyed to Deborah any right, title, interest, or claim (presumably any reversionary interest they might have) in the disputed property. Maxine, Mary, Manard, Robert, Carol, and Shirley executed the deed. Winfred Canady, Carol’s husband, signed the deed as a witness, and Sheila notarized it. Deborah also sent to Jeffery and Jonathan a separate quitclaim deed (“the second quitclaim deed”) that conveyed any right, title, interest, or claim they had (presumably as heirs of their mother, Sybil) in the disputed property to Deborah. Jeffery and Jonathan executed the deed and had it notarized. The deeds were recorded. Later in 2003, Maxine died. Deborah died in 2004.

Sheila instituted the present action against Mary, Manard, Robert, Carol, Shirley, Jeffery, and Jonathan (“the defendants”) on April 2, 2008. She asserted that she owned the disputed property through devise and deed conveyances but that she had received a letter indicating that the defendants disputed her ownership of the disputed property. She sought a judgment declaring that she owned the disputed property in fee simple. She requested that, should the court determine that she did not own the disputed property in fee simple, the court order that the disputed property be sold with the proceeds divided among the owners of the property.

Sheila filed a motion for a summary judgment, which is not included in the record on appeal. In their response to that motion, the defendants argued, among other things, that the quitclaim deeds they had executed were not valid because the deeds were not executed in the presence of a notary and they did not acknowledge their signatures before a notary. The trial court denied Sheila’s summary-judgment motion.

On February 8, 2010, Sheila amended her complaint by asserting that if the quitclaim deeds were not properly acknowledged or witnessed, the deeds, at the very least, constituted enforceable agreements to execute an instrument passing legal title to Deborah and that, as such, they were subject to specific performance. Thus, she requested that, should the court find that the deeds were invalid, the court enter an order requiring the defendants to execute an instrument conveying title to the disputed property to Sheila.

On October 18, 2010, the trial court held a bench trial of the action. At the trial, Sheila testified that Deborah was not married at the time of her death and that she had no children. She testified that only eight years separated Deborah and her in age and that they had had a close relationship.

Sheila testified that Deborah’s siblings had executed the first quitclaim deed on the day of the family reunion in 2003 either at the community center at which the reunion was held or at Maxine’s house. Maxine, she stated, was sick at that time and had been unable to attend the reunion. Sheila, who had notarized the first quitclaim deed, stated that she saw all six of the siblings sign the deed and that they had done so voluntarily.

Sheila testified that some of her mother’s siblings had sold the property they had inherited from Amason and that, in so doing, they had had the other family members execute deeds regarding their respective properties similar to the quitclaim deeds Deborah had had her siblings and nephews execute.

Mary testified that Deborah presented the first quitclaim deed to her at the family reunion. She stated that Deborah had asked her to sign the deed so that she could obtain a new house. Mary testified that she did not know what a quitclaim deed was and that she would not have signed it had she known that Deborah’s will devised the disputed property to Sheila. Mary admitted, however, that she did not read the deed and that no one forced her or pressured her to sign it. She stated that she could have refused to sign it or that she could have had a lawyer review the document before she signed it but that she chose not to do so. She also stated that she did not ask Sheila or Deborah what the quitclaim deed was. She testified that she would not have had a problem with Deborah’s using the quitclaim deed to sell the property. Mary testified that she did not see Sheila at the time she signed the quitclaim deed and that, to her knowledge, Sheila was not present in the room when she signed it.

Carol testified that she signed the first quitclaim deed during the family reunion at Deborah’s request and that Deborah had not told her she had made a will devising the disputed property to Sheila. She testified that she did not know what a quitclaim deed was and that she did not know that Deborah was asking her to give up any interest she might have in the disputed property. However, Carol also testified that she signed the quitclaim deed voluntarily and that no one pressured her or forced her to sign it. She stated that she had the opportunity to read and review the quitclaim deed as long as she wanted and that she did not ask Deborah what she was signing or question Deborah about it. She stated that she believed that, at the time she signed the deed, Maxine and Mary had already signed it.

Carol testified that, after she signed the first quitclaim deed, Deborah asked Carol’s husband, Winfred Canady, who had been sitting with Carol when she signed the deed, to witness the deed. Winfred did so. Carol testified that she did not recall seeing Sheila at the family reunion.

Shirley testified that she signed the first quitclaim deed during the family reunion at Deborah’s request and that Deborah had not told her she had made a will devising the disputed property to Sheila. She stated that Deborah had told her that the purpose of the deed was for Deborah to obtain another house. She stated that she did not read the deed before she signed it, that nothing had prevented her from reading it, that she had signed the deed voluntarily, and that no one had pressured her or forced her to sign it. She stated that she did not ask Deborah what the deed was or ask her to explain it to her. She stated that she would not have minded if Deborah had sold the disputed property and purchased another house, but she said she would not have signed the deed if she had known the property would descend to Sheila.

Shirley testified that no one else was around when she signed the first quitclaim deed. She stated that she could not recall whether she had seen Sheila at the reunion before she signed the deed.

Robert testified that he signed the first quitclaim deed at Maxine’s house after he left the reunion. He stated that, at the time he signed the deed, Deborah said something to him about trying to obtain another house. He stated that he thought he was the only person in the room when he signed the deed and that no one witnessed his signature. He admitted that no one pressured or coerced him to sign the deed and that, although he did not read the deed, he could have done so had he so chosen. He also stated that he could have refused to sign the deed. Robert stated that he did not see Sheila at the family reunion.

Manard testified that Deborah had approached him at Maxine’s house regarding the first quitclaim deed after he left the family reunion. He stated that he knew the deed was a quitclaim deed and that he did not feel like he had any interest in the disputed property at that time. He testified that Deborah did not tell him what she was intending to do with the disputed property and that he did not ask. He stated that no one pressured him to sign the deed and that, although he did not read the deed before he signed it, no one had prevented him from doing so. He also stated that he could have refused to sign the deed. Manard stated that Sheila had not been at the family reunion and was not at Maxine’s house when he was there. He stated that, when he signed the deed, Deborah and he were alone in Maxine’s kitchen.

Jonathan testified that he and Jeffery had received a telephone call from Deborah asking that they sign a quitclaim deed regarding their interests in the disputed property. He stated that, in their telephone conversation, Deborah told them:

“If we would, to get over and sign this and get it back to her; that she — at that time her sister had just passed away and she said she had been thinking about things and said that she was worried in the event of her death that the estate could claim everything she owned. And she didn’t want that to happen; that it should go back to the family; and that that’s what this was all about. So we— There seemed to be an urgency over it.”

Jonathan stated that, several days after the conversation, Jeffery and he received the second quitclaim deed in the mail and they went to a notary public together and signed it. He stated that no one forced him to sign the deed, and he admitted that if Deborah had simply sold the disputed property once he signed the deed, he could not have done anything about it.

Jeffery also testified regarding the conversation Jonathan and he had with Deborah concerning the second quitclaim deed. When asked what Deborah had said, Jeffery stated: “Just that we need to sign— Because our mother was deceased, we needed to sign in her place to keep the estate from getting what she had because she didn’t have any sons or daughters to leave it to.” At one point during his testimony, Jeffery stated that he signed the second quitclaim deed before a notary public; he later testified that he did not remember whether he had done so. Jeffery testified that he knew that Deborah was having the family sign the quitclaim deeds so she could convey the disputed property however she wanted; he stated that he did not have a problem with Sheila’s inheriting what Deborah had left her in her will.

On June 28, 2011, the trial court entered a judgment in which it made the following findings:

“1. The great weight of the evidence presented at trial indicates that the quitclaim deed[s] ... were improperly executed, and in certain instances the grant[or]’s signatures fraudulently procured by the representations of the grant[ee]. Both deeds are due to be set aside and are held to be void instruments.
“2. Because the quitclaim deeds in question have been declared void, the parties to this action are held to be tenants in common of the property described in the deeds in question. The described property cannot be equitably divided or partitioned among the tenants in common without a sale of same. [Sheilaj’s request for a sale for division is due to be granted.”
The trial court ordered that the quitclaim deeds be set aside as void, and it ordered that the disputed property be sold, with the proceeds from the sale divided among the heirs of Amason. Sheila filed a timely appeal to our supreme court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.
The standard by which this court reviews a judgment following a bench trial at which ore tenus evidence was received is well settled:
“Because the trial court heard ore tenus evidence during the bench trial, the ore tenus standard of review applies. Our ore tenus standard of review is well settled. ‘ “When a judge in a nonjury case hears oral testimony, a judgment based on findings of fact based on that testimony will be presumed correct and will not be disturbed on appeal except for a plain and palpable error.” ’ Smith v. Muchia, 854 So.2d 85, 92 (Ala.2003) (quoting Allstate Ins. Co. v. Skelton, 675 So.2d 377, 379 (Ala.1996)).
“ ‘ “The ore tenus rule is grounded upon the principle that when the trial court hears oral testimony it has an opportunity to evaluate the demeanor and credibility of witnesses.” Hall v. Mazzone, 486 So.2d 408, 410 (Ala. 1986). The rule applies to “disputed issues of fact,” whether the dispute is based entirely upon oral testimony or upon a combination of oral testimony and documentary evidence. Born v. Clark, 662 So.2d 669, 672 (Ala.1995). The ore tenus standard of review, succinctly stated, is as follows:
“ ‘ “[Wjhere the evidence has been [presented] ore tenus, a presumption of correctness attends the trial court’s conclusion on issues of fact, and this Court will not disturb the trial court’s conclusion unless it is clearly erroneous and against the great weight of the evidence, but will affirm the judgment if, under any reasonable aspect, it is supported by credible evidence.” ’
“Reed v. Board of Trs. for Alabama State Univ., 778 So.2d 791, 795 (Ala. 2000) (quoting Raidt v. Crane, 342 So.2d 358, 360 (Ala.1977)). However, ‘that presumption [of correctness] has no application when the trial court is shown to have improperly applied the law to the facts.’ Ex parte Board of Zoning Adjustment of Mobile, 636 So.2d 415, 417 (Ala.1994).
“ ‘The ore tenus standard of review extends to the trial court’s assessment of damages.’ Edwards v. Valentine, 926 So.2d 315, 325 (Ala.2005). Thus, the trial court’s damages award based on ore tenus evidence will be reversed ‘only if clearly and palpably erroneous.’ Robinson v. Morse, 352 So.2d 1355, 1357 (Ala.1977).”

Kennedy v. Boles Invs., Inc., 53 So.3d 60, 67-68 (Ala.2010).

Sheila contends that the evidence did not support the trial court’s finding of fraud as a basis for setting aside the quitclaim deeds. As to fraud in the conveyance of real property, our supreme court has written:

“When a grantor fails to read a deed (having the ability to read and understand it) and this results in his execution of an instrument which conveys realty, although he subsequently avers he did not intend to convey, the grantor’s mistake will be attributed to his own negligence and the deed will be upheld so long as his signature was not induced by fraud or misrepresentation. Colburn v. Mid-State Homes, Inc., 289 Ala. 255, 266 So.2d 865 (1972).
“Accordingly, if the deed in this case is to be set aside because of appellee’s lack of intention to convey the property described therein, appellee must prove that she acted under the influence of fraud or misrepresentation. This Court has held that ‘The degree of proof required to rescind or cancel a conveyance because of fraudulent misrepresentation is more than a mere probability of the truth of the charge of fraud.’ Hodges v. Beardsley, 269 Ala. 280, 282, 112 So.2d 482, 483-84 (1959).
“In cases where the grantor seeks to set aside a deed on the ground that a fraudulent misrepresentation induced him to sign the deed without knowledge of its contents, this Court has required that the fraud must be clearly and satisfactorily proven. Cross v. Maxwell, 263 Ala. 509, 83 So.2d 211 (1955); Hodges v. Beardsley, supra.
“ ‘If the proof is uncertain in any material respect, it will be. held insufficient, though the court may feel that a great wrong has been done; the court cannot grant the relief by reason of uncertainty.’ Wooddy v. Matthews, 194 Ala. 390, 69 So. 607 (1915).”

Ingram v. Horn, 294 Ala. 353, 355-56, 317 So.2d 485, 486 (1975). Discussing the same principle, our supreme court wrote in Cross v. Maxwell, 263 Ala. 509, 512, 83 So.2d 211, 214 (1955), that

“a false representation, to constitute fraud upon which a cancellation [of a deed] can be based, must be of an existing fact, and not a promise of something to be done in the future, unless it be shown that at the time such promise as to the future was made, it was made with the intention of deceiving, and with no intention of fulfillment at the time.”

Sheila contends that there is no evidence indicating that Deborah made any false or otherwise fraudulent statements to the defendants concerning the quitclaim deeds. We agree.

The trial testimony reflects that Deborah, in explaining why she wanted her siblings to sign the first quitclaim deed, told some of them that she wanted to be able to purchase a house. The testimony also reflects that she told Jonathan and Jeffery that she wanted to keep the disputed property from being conveyed to “the estate.” There is no evidence that either of those statements were untrue or were otherwise fraudulent. Specifically, there is no evidence indicating that Deborah was not attempting to obtain fee ownership of the disputed property so that she could obtain a new house or that she was not attempting to keep the disputed property from being conveyed, at her death, to Amason’s estate.

As stated above, the defendants had the burden of demonstrating fraud on the part of Deborah by clear and convincing evidence in order to have the quitclaim deeds set aside. There is no evidence in the record, let alone clear and convincing evidence, of any such fraud by Deborah, and, as a result, the trial court’s conclusion that some of the defendants’ signatures on the quitclaim deeds were procured by fraud was in error.

Sheila also contends that the trial court’s finding that the quitclaim deeds at issue were improperly executed is not supported by the evidence. She argues that the evidence at trial demonstrated that the defendants signed the deeds, that the deeds were properly notarized, and that the first quitclaim deed, which had been signed by Deborah’s siblings, had been properly witnessed as well.

Section 35-4-20, Ala.Code 1975, provides that any conveyance of real property must be in writing, signed by the grantor, and attested to, in most circumstances, by one witness. An acknowledgment of the conveyance before a notary public meets the requirement that a written conveyance be witnessed. § 35-4-23, Ala.Code 1975. There is no question that all the defendants signed the quitclaim deeds at issue in this case. Thus, the issue presented is whether the acknowledgment or attestation of the quitclaim deeds was proper.

As to the notarization of the quitclaim deeds, we note that “[a] certificate of acknowledgment on an instrument transferring an interest in real property is presumed correct, and the party contending it is invalid must demonstrate the invalidity by clear and convincing evidence.” Farmer v. Hypo Holdings, Inc., 675 So.2d 387, 391 (Ala.1996). The propriety of a notarization was discussed, albeit in reference to mortgages,, in Eason v. Bynon, 781 So.2d 238, 240-41 (Ala.Civ.App.2000):

“If a notary public does not witness the signatures of the mortgagors, is not in the place where the mortgagors sign the mortgage, does not see or speak to the mortgagors when they sign the mortgage, and the mortgagors do not acknowledge to the notary that they executed the mortgage, the mortgage is invalid and the notary’s act of signing his name and affixing his notarial seal to the mortgage is a violation of his legal duty.”

As to the' first quitclaim deed, which Sheila notarized, Sheila testified that she saw all of Deborah’s siblings sign that deed but that she did not speak with them about the deed or their execution of it. All of Deborah’s siblings who testified, however, stated that Sheila was not in their presence when they signed the deed, and several of them testified that they did not recall even seeing Sheila at the reunion or' at Maxine’s house where they signed the deed. The evidence supports a conclusion that Sheila did not, in fact, see them sign the deed. When that testimony is coupled with Sheila’s own testimony that the basis for her notarization of the deed was that she saw Deborah’s siblings sign the deed, the conclusion can be fairly drawn that Sheila’s notarization of the first quitclaim deed Was improper. See Eason, 781 So.2d at 241.

As previously stated, when a trial court hears conflicting oral testimony, a presumption of correctness attaches to its findings of fact. Kennedy, 53 So.3d at 67-68. Here, we cannot say that clear and convincing evidence would not support a finding of fact by the trial court that Sheila’s notarization of the first quitclaim deed was improper as to Mary, Carol, Shirley, Robert, and Manard.

The defendants failed, however, to carry their burden to demonstrate the invalidity of Sheila’s notarization of the deed as to Maxine. Simply put, Sheila testified that she saw Maxine sign the first quitclaim deed, and the defendants presented no evidence to contradict that testimony. As a result, as to Maxine, the deed is not invalid on the basis of an improper acknowledgment. Similarly, the defendants failed to demonstrate that the second quitclaim deed, which Jonathan and Jeffery executed and which was notarized by someone other than Sheila, was invalid because of an improper acknowledgment. On its face, the quitclaim deed they executed purports to have been properly notarized, and no evidence presented at trial demonstrated that that notarization was improper.

In a two-sentence argument in their appellate brief, the defendants argue that Sheila had a financial interest in the conveyance affected by the quitclaim deeds and, as a result, that she was not qualified to serve as a notary as to the first quitclaim deed. We disagree. In Frazier v. Malone, 387 So.2d 145 (Ala.1980), our supreme court stated that an acknowledgment by an individual with a financial interest in a conveyance, rather than just the transaction, is disallowed, except where the interest is no more than secondary or incidental. In the present case, Sheila was not a party to the quitclaim deeds and her interest in the conveyance of the disputed property to Deborah was merely secondary to Deborah’s interest in the conveyance and was subject to complete divestment should Deborah decide to change her will. Under these circumstances, we cannot conclude that Sheila’s acknowledgment of the first quitclaim deed was invalid as to Maxine on the basis of any interest she may have had in the transaction. See also In re Estate of Hogg, 147 Vt. 101, 103, 510 A.2d 1323, 1324 (1986), rev’d on other grounds, Staruski v. Continental Telephone Co. of Vermont, 154 Vt. 568, 581 A.2d 266 (1990) (holding that attorney who was presumptive heir of his mother’s estate was not disqualified from acknowledging the signatures of his mother and her new husband relative to their antenup-tial agreement because he did not have a direct, pecuniary interest in that agreement).

Sheila points out that, in addition to being notarized, the first quitclaim deed was witnessed by Winfred Canady, Carol’s husband, and, as a result, that that quitclaim deed was validly executed despite any impropriety as to her acknowledgment of the deed. As to Carol and Mary, we agree. Carol testified that Winfred was sitting next to her when she executed the deed and that he signed the deed as a witness immediately following her execution of the deed. Although Mary stated that Sheila was not with her when she executed the deed, she did not testify, nor is there any other evidence indicating, that Winfred did not see her sign the deed. “One seeking to have a deed declared invalid must show by clear and convincing evidence the facts relied upon to demonstrate the invalidity; and that party seeking to have the deed set aside bears the burden of proof.” Thompson v. Mitchell, 337 So.2d 1317, 1318 (Ala.1976). There being no evidence indicating that Winfred did not witness Mary executing the deed, the defendants did not carry their burden of demonstrating that the first quitclaim deed was invalid as to Mary because it had been improperly witnessed.

The trial court properly could have concluded, however, that Winfred’s attestation of the first quitclaim deed was invalid as to Shirley, Robert, and Manard. Shirley and Robert both testified that no one was around them when they signed the quitclaim deed; Manard testified that Deborah and he were alone when he signed the deed. The inference that arises from the testimony of those defendants is that Winfred did not see them sign the deed, and, as a result, the trial court was free to conclude that, as to those defendants, the deed was not executed properly.

Sheila contends that the trial court erred in failing to hold that the quitclaim deeds, to the extent that they did not validly convey the disputed property to Deborah, constituted agreements on the part of the defendants to convey the disputed property to Deborah. Because we have concluded that the quitclaim deeds were invalid for any of the reasons stated by the trial court only as to Shirley, Robert, and Manard, we address this issue only as it relates to those defendants.

In Lavender v. Ball, 267 Ala. 104, 100 So.2d 331 (1958), our supreme court concluded that a written conveyance of real property, although insufficient to convey legal title, constituted a contract to convey legal title to the purported grantee and vested that individual with equitable title in the property. In that case, the purported grantor executed a document indicating an intention to convey to the purported grantee, among other things, a one-half interest in his real property. That document was neither witnessed nor acknowledged. When the purported grantee sought to enforce the conveyance, the trial court refused to do so. On appeal, our supreme court determined that the document was specifically enforceable. The court wrote:

“The trial court in its decree made a finding that the foregoing ‘is not an instrument that should be enforced in a court of equity, as to the real estate described therein.’ Although the decree does not state the basis for such finding, we gather from the parties’ oral arguments and briefs that it was considered inoperative for several reasons, viz: (1) It is neither witnessed nor acknowledged; (2) it is in the form of a bill of sale of personal property and is inadequate for a conveyance of real property; and (3) the real property is insufficiently described. The question, then, is whether the instrument, for one or more of the stated reasons, is ineffectual to pass to complainant any interest in the land. Although it is clearly inoperative to pass the legal title, we entertain the view that it is not, on its face, insufficient to furnish the basis for an equitable interest in the land.
“Code 1940, Tit. 47, § 22 [ (the predecessor to § 35^4-20, Ala.Code 1975, quoted in note 3, supra) ], provides that conveyances for the alienation of lands ‘must be attested by one witness, or, where the party cannot write, by two witnesses who are able to write, and who must write their names as witnesses.’ Section 24, Tit. 47, provides that an acknowledgment ‘operates as a compliance with the requisitions’ of Section 22 ‘upon the subject of witnesses.’ Here, as already noted, the instrument was neither witnessed nor acknowledged. Accordingly, it was inefficacious to pass the legal title. Haisten v. Ziglar, 258 Ala. 554, 556, 64 So.2d 592 [ (1953) ]; Golden v. Golden, 256 Ala. 187, 191, 54 So.2d 460 [ (1951) ]; Niehuss v. Ford, 251 Ala. 529, 531, 38 So.2d 484 [ (1949) ]. However, ‘it is an established equitable doc trine that an instrument in writing, intended as a conveyance of lands, wanting in some essential element to pass the legal estate — as the attestation of a subscribing ivitness, or an acknowledgment of execution before an officer having authority to take and certify it, or a defective acknowledgment — will be regarded as an agreement to convey, and performance of it will be enforced’ in equity. Haisten v. Ziglar, supra [258 Ala. at 556, 64 So.2d at 594]. See, also, Golden v. Golden, supra; Niehuss v. Ford, supra; Lowery v. May, 213 Ala. 66, 74, 104 So. 5 [(1925)]; Bethea v. McCullough, 195 Ala. 480, 486, 70 So. 680 [ (1915) ]; Branch v. Smith, 114 Ala. 463, 468, 21 So. 423 [ (1897) ]; Roney v. Moss, 74 Ala. 390, 392 [ (1883) ]; Goodlett v. Hansell, 66 Ala. 151,159 [ (1880) ]. In the last cited case it is said that ‘a court of equity, looking beyond the forms of contracts, to the substance, and the ascertained intention of the parties, will cure the omission of a subscribing witness, and compel the conveyance of the legal estate.’ ”

Lavender, 267 Ala. at 106-07, 100 So.2d at 332-33 (emphasis added). See also Golden v. Golden, 256 Ala. 187, 191, 54 So.2d 460, 463 (1951) (“We have frequently held that when a deed purports to convey a title to real estate, is signed by grantor and delivered but not witnessed or acknowledged as required by law, it is in legal effect an agreement to execute an instrument passing legal title though it is inoperative itself to pass legal title.”); and Niehuss v. Ford, 251 Ala. 529, 531, 38 So.2d 484, 486 (1949) (‘When a deed purports to convey the title to real estate, is signed by the grantor and delivered, but not witnessed or acknowledged as required by law ..., though inoperative to pass the legal title, it is then in legal effect an agreement to execute an instrument passing the legal title.”).

In the present case, Sheila asserted in her amended complaint that the quitclaim deeds, to the extent they were not properly executed, had the legal effect of an enforceable agreement to convey the disputed property to Deborah. Thus, she requested in her amended complaint that “the defendants whose signatures on the quitclaim deeds were not properly witnessed or acknowledged by a notary be specifically ordered to execute an instrument passing legal title to the property described [i]n those quitclaim deeds” to her, as Deborah’s heir. Despite this claim in her amended complaint, the trial court did not rule on the issue whether the quitclaim deeds, to the extent they were ineffective to convey legal title to the disputed property to Deborah, constituted agreements by Shirley, Robert, and Ma-nard to convey that property that were subject to specific performance. Thus, because of its failure to do so, we will remand the cause for the trial court to consider that claim.

Based on the foregoing, we reverse the trial court’s determination that the quitclaim deeds were void as having been procured by fraud, and, with regard to Maxine, Mary, Carol, Jonathan, and Jeffery, we reverse its determination that the quitclaim deeds were not properly executed. We remand the cause for the trial court to consider whether, as to Shirley, Robert, and Manard, the first quitclaim deed is enforceable as an agreement to convey the disputed property and, following that consideration, to enter a new judgment consistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      . Amason's will devises certain real property to D.D. Amason, whom the will describes as one of Amason’s sons. There is no information provided in the record about D.D. Ama-son, and there is no indication that he was living at the time relevant to this action or that he had left heirs whose existence would impact the outcome of this appeal. In her principal appellate brief, Sheila states that D.D. Amason predeceased Amason, having died intestate and with no heirs.

      . Because we conclude that the trial court erred in its finding of fraud on the part of Deborah in obtaining some of the defendants' signatures, we pretermit discussion of Sheila’s argument that the issue of fraud was not properly litigated before the trial court.

      . In full, § 35-4-20 provides:
      "Conveyances for the alienation of lands must be written or printed, or partly written and partly printed, on parchment or paper, and must be signed at their foot by the contracting party or his agent having a written authority; or, if he is not able to sign his name, then his name must be written for him, with the words ‘his mark' written against the same, or over it; the execution of such conveyance must be attested by one witness or, where the party cannot write, by two witnesses who are able ■ to write and who must write their names as witnesses; or, if he can write his name but does not do so and his name is written for him by another,, then the execution must be attested by two witnesses who can and do write their names.”

      . We note, but find to be without merit, Sheila’s contention that the trial court applied the wrong standard to its review of the evidence when it referenced the "great weight” of the evidence rather than "clear and convincing” evidence. Our review of the trial court’s judgment leads us to conclude that the trial court was merely commenting on its view of the quantum of the evidence. The trial court's judgment clearly contained findings of fact; it is this court’s duty to determine whether those findings of fact are supported by clear and convincing evidence.

      . We note Jeffery’s testimony that he did not recall whether he had executed the second quitclaim deed before a notary public. That testimony, however, is not evidence demonstrating that he did not do so, only that he did not remember whether he had done so.


text:
    Boyd James LANDRY v. Angela O. LANDRY. Angela O. Landry v. Boyd James Landry.
    2100861.
    Court of Civil Appeals of Alabama.
    March 9, 2012.
    Boyd James Landry, pro se.
    J. Robert Faulk of McDowell, Faulk & McDowell, L.L.C., Prattville, for appel-lee/cross-appellant Angela 0. Landry.
   MOORE, Judge.

Boyd James Landry (“the father”) appeals, and Angela 0. Landry (“the mother”) cross-appeals, from a judgment of the Autauga Circuit Court (“the trial court”). We dismiss the appeal.

Background

The trial court divorced the father and the mother in 2007; as part of the divorce judgment, the father was ordered to pay, among other things, child support. On April 28, 2010, the father filed a petition in the trial court to modify his child-support obligation, and the mother subsequently counterclaimed, seeking to hold the father in contempt. Those issues were tried before the trial court on November 16, 2010. On November 18, 2010, the trial court entered an order addressing those issues, and, on December 27, 2010, the father appealed. This court assigned the father’s appeal case no. 2100340.

On April 26, 2011, this court dismissed the father’s appeal because it was taken from a nonfinal judgment. See Landry v. Landry (No. 2100340, April 26, 2011), — So.3d - (Ala.Civ.App.2011) (table). This court issued its certificate of judgment on May 17, 2011.

On February 28, 2011, while case no. 2100340 was still pending on appeal, the trial court entered a judgment addressing the father’s petition to modify child support and the mother’s counterclaim for contempt. In that judgment, the trial court stated:

“Case called November 16, 2010, and testimony being taken on the issue of a Petition to Modify the child support being paid by [the father] to [the mother].
“Court finds that the child support award shall be modified to $277.80 per month to be paid by [the father] to [the mother], the award of child support in compliance with Rule 32, [Ala. R. Jud. Admin.]. New award of child support to commence March 1, 2011.
“Case further called on Counter-claim for contempt. [The father] found to be in arrears in the sum of $23,776.31 for child support, medical expense[s], home equity mortgage payment to the date of the hearing. Arrearage set in this amount this date.”

On March 30, 2011, the father filed a motion to alter, amend, or vacate the trial court’s February 28, 2011, judgment. The father also filed a separate motion for a new trial on that same date. The father filed a notice of appeal on June 10, 2011, and the mother cross-appealed. This court assigned that appeal and cross-appeal case no. 2100861.

Analysis

Although neither party has raised the issue of this court’s jurisdiction, “jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.” See Nunn v. Baker, 518 So.2d 711, 712 (Ala. 1987). “It is well settled that ‘[o]nce an appeal is taken, the trial court loses jurisdiction to act except in matters entirely collateral to the appeal.’” Portis v. Alabama State Tenure Comm’n, 863 So.2d 1125, 1126 (Ala.Civ.App.2003) (quoting Ward v. Ullery, 412 So.2d 796, 797 (Ala. Civ.App.1982)). Further,

“Alabama law is clear that ‘[¡jurisdiction of a case can be in only one court at a time.’ Ex parte State ex rel. O.E.G., 770 So.2d 1087, 1089 (Ala.2000). Furthermore, ‘while an appeal is pending, the trial court “can do nothing in respect to any matter or question which is involved in the appeal, and which may be adjudged by the appellate court.” ’ Reynolds v. Colonial Bank, 874 So.2d 497, 503 (Ala.2003) (quoting Foster v. Greer & Sons, Inc., 446 So.2d 605, 608 (Ala. 1984)).”

Johnson v. Willis, 893 So.2d 1138, 1141 (Ala.2004).

In Johnson, the appellants filed an appeal after the trial court in that case had entered a preliminary injunction. 893 So.2d at 1140-41. During the pendency of that appeal, the trial court purported to enter a permanent injunction. 893 So.2d at 1141. The Alabama Supreme Court determined that the trial court lacked jurisdiction to make the injunction permanent during the pendency of the appeal from the preliminary injunction. Id.

We also note that, until an appellate court enters its certificate of judgment, its decision is not yet final and its jurisdiction over a case is not terminated. See Rule 41(a), Ala. R.App. P. (an appellate court’s “certificate of judgment ... shall issue 18 days after the entry of judgment unless the time is shortened or enlarged by order”); see also Portis, 863 So.2d at 1126; and Veteto v. Yocum, 792 So.2d 1117, 1119 (Ala.Civ.App.2001). Our certificate of judgment in case no. 2100340 was issued on May 17, 2011; as a result, the trial court did not reacquire jurisdiction over the case until that date.

As in Johnson, supra, the trial court in this case lacked jurisdiction to enter its February 28, 2011, judgment because, at that time, the father’s appeal in case no. 2100340 remained pending before this court. Because the issues addressed in the trial court’s February 28, 2011, judgment were before this court when the trial court purported to enter its February 28, 2011, judgment, that judgment is void. A void judgment will not support an appeal. See Tidwell v. State Ethics Comm’n, 599 So.2d 12, 12 (Ala.1992). The father’s appeal and the mother’s cross-appeal from the void February 28, 2011, judgment are therefore dismissed, albeit with instructions to the trial court to vacate its void judgment. See Hayes v. Hayes, 16 So.3d 117, 120 (Ala.Civ.App.2009) (dismissing an appeal taken from a void judgment but instructing the trial court to, among other things, vacate that void judgment).

APPEAL AND CROSS-APPEAL DISMISSED WITH INSTRUCTIONS.

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

      . The father filed various other motions in the trial court that are not relevant to our resolution of this appeal.