author: THOMPSON, Presiding Judge.

text:
    Jeanette WICKS v. Jeffrey Robert WICKS II.
    2090817.
    Court of Civil Appeals of Alabama.
    Jan. 14, 2011.

      Jenna Brooks Smith, Tuscumbia, for appellant.
    Polly T. Ruggles, Tuscumbia, for appel-lee.
   THOMPSON, Presiding Judge.

Jeanette Wicks (“Jeanette”) appeals from the judgment of the Colbert Circuit Court that, among other things, ordered her to sell her interest in certain real property to Jeffrey Robert Wicks II (“Jay”). For the reasons stated herein, we reverse.

Jay filed an action against his father, Jeffrey R. Wicks (“Jeff’), and his stepmother, Jeanette, on December 23, 2008, styling his complaint a “petition for declaratory judgment.” In his complaint, Jay alleged that Jeff and Jeanette were currently involved in a divorce action and that an issue had arisen regarding a parcel of real property located in Sheffield (“the property”). Jay alleged that his paternal grandparents, who are deceased, had owned the property and that, through estate proceedings, the property had been granted to his father and his uncle, Ronald E. Wicks (“Ronald”), who were the only heirs of his paternal grandparents. Jay asserted that conflicting deeds regarding the property had been recorded and that one of the deeds vested him with ownership of the property while one of the deeds vested Jeff and Jeanette with ownership of the property. Jay alleged that he had paid the taxes and insurance on the property since 2005 and that, because the house on the property had been uninhabitable, he had spent a substantial amount of money to renovate it. He asserted that Jeff and Jeanette had not paid the taxes or the cost of insurance for the property and that they had not contributed to the maintenance and improvements on the property. Jay asserted that he was the owner of the property, and he asked the court “to render a declaratory judgment adjudging and granting” the property to him.

On September 9, 2009, the trial court held a bench trial. At the trial, several deeds were submitted into evidence. The first deed introduced was executed on August 1, 2005, and recorded on September 12, 2005. By that deed, Ronald and Jeff conveyed ownership of the property to Jeff and Jeanette as joint tenants with right of survivorship. A second deed, which was executed on September 14, 2005, and recorded later that day, was introduced into evidence. By that deed, Jeff purported to convey the property to Jay. The deed does not list Jeanette as a grantor, and she did not execute that deed. A third deed, which was identical to the first deed, was introduced. It also was executed on September 14, 2005, and was recorded later that day.

At the trial, Ronald testified that the property had originally belonged to Edward Wicks and Evelyn Wicks, who were Jeffs and Ronald’s parents. Ronald testified that Evelyn Wicks had died in 1989 and that Edward Wicks had died in 2004. Ronald stated that he had been the executor of Edward Wicks’s estate and that Jeff and he were Edward Wicks’s sole heirs. Ronald testified that, at Edward Wicks’s death, Edward Wicks had owned the property and an automobile. Ronald stated that Jeff and Ronald had agreed that Ronald would receive the automobile and that Jeff would receive the property with the intent to give the property to Jay. Ronald testified that the automobile was worth between $10,000 and $12,000 and that the house on the property was in poor condition. He stated that he believed that the automobile and the property had had comparable values, although he stated that his opinion as to the value of the house was speculation.

Jay testified that he and Josh Wicks, Jay’s younger brother (“Josh”), began living in the house on the property in 2004, while their paternal grandfather’s estate was being probated. Jay testified that Josh, Jeff, and he did a substantial amount of work to the house, including, among other things, replacing the roof, replacing the central-air-conditioning unit, and replacing the kitchen and bathroom floors. He testified that the total cost of all the improvements to the property was $38,083. Jay stated that he received a letter dated April 9, 2008, during the time that Jeff and Jeanette were going through a divorce, indicting that Jeanette planned to move into the house on the property on April 15, 2008. Jay testified that this was the first notice he had that Jeanette claimed an interest in the property, and he stated that, had he known that Jeanette had claimed an interest in the property, he would not have made all the improvements to the property that he had made. Jay testified that he had paid all the property taxes for the property in 2006, 2007, and 2008 for the tax years 2005 to 2007. This testimony was supported by tax records entered into evidence showing that the property was assessed in Jay’s name. Jay testified that the property was insured in his name and that he had paid the premium for the property insurance beginning in 2005. Jay stated that Jeanette had never offered to pay the property insurance or property taxes on the property and that she had not paid for any of the improvements that he had made to the property.

Jeanette testified that she and Jeff were married in October 2004. She testified that she had helped with the improvements on the property by cleaning and painting and that some of the improvements, such as the new roof and the new central-air-conditioning unit, had been paid for out of a bank account that Jeff and she had held jointly. Jeanette stated that Jeffs and her intention had been to allow Jay and his younger brother to live on the property and that, once they moved off of the property, she and Jeff were going to sell it. She testified that she paid the taxes on the property for 2004 or 2005. She also stated that she and Jeff were paying for the property insurance on the property when they were married in 2004.

Jeff testified that it had been Ronald’s and his intention that Ronald’s daughter receive their father’s automobile and that Jay receive the property. He stated that he believed that the automobile and the property were approximately equal in value. He testified that Jeanette did not pay for any of the improvements to the property as she had testified. Jeff testified that it had been his intention that Jay would own the property.

After the trial, Jeanette filed a brief in which she argued that the evidence at trial demonstrated that she owned a one-half interest in the property as a tenant in common with Jay. She asserted that Jeff and Ronald had taken ownership of the property as tenants in common and that the August 1, 2005, deed conveyed title to Jeff and her as joint tenants with right of survivorship, each owning an undivided, one-half interest in the property. She asserted that the effect of the September 14, 2005, deed of the property from Jeff to Jay served to convey Jeffs one-half interest in the property to Jay, destroying the surviv-orship rights and causing Jay and her to become tenants in common of the property. She argued that the third deed, which was identical to the first deed, was invalid because, at the time it was recorded, neither Jeff nor Ronald had any legal interest remaining in the property. As to the testimony at trial regarding improvements that had been made to the property, Jeanette argued that the issue of reimbursement among cotenants was not an issue that was before the court and that, instead, the only issue before the court was the request for relief in Jay’s complaint, i.e., a declaration of the parties’ respective rights in the property. She argued that “each tenant in common has the right to petition the court for sale or division of the property” and that, “when an action for partition is filed and/or upon further request of the Court,” she would file a brief addressing those issues.

Jay also filed a brief after the trial. He stated that, by virtue of the deeds, “the parties are cotenants of the property.” He argued that the property presently was worth substantially more than it had been worth in 2005 and that, “[i]f any money is due to be exchanged between the parties as cotenants then [he] is due to be reimbursed for the sums expended for taxes, insurance, and improvements made under the mistaken belief that he was the sole bona fide owner.” He stated that “[t]he only relief that is equitable in this situation is for the Court to order sole possession of the property to [him] and to remove any cloud on [his] title by divesting [Jeanette] of any interest she has in the property.”

On December 29, 2009, the trial court entered a final judgment in which it found that Jeanette and Jay were tenants in common of the property, each owning a one-half interest therein. It found that Jay had paid for all the improvements to the property since 2005, that Jay had paid property taxes and insurance on the property in the amount of $3,550.09, and that Jeanette had not contributed to the improvements or to payment of the property taxes and insurance on the property. The trial court found that the value of the property as of September 2005 was $15,000. Based on those findings, it ordered:

“1. [Jay] shall retain sole possession and ownership of the property....
“2. [Jeanette] shall give [Jay] a quit claim deed to said property.
“3. [Jay] shall pay [Jeanette] the amount of $5,724.95, for her one-half interest in said property less one-half of the taxes and insurance paid on said property since 2005, upon receipt of the quit claim deed.”

Jeanette filed a postjudgment motion, after which the trial court entered an amended order clarifying that the total amount due to her from Jay was $5,724.95, which the trial court had calculated by deducting half of the taxes and property insurance Jay had paid for the property from the $7,500 value of Jeanette’s one-half interest in the property. Jeanette filed a timely appeal.

Because the trial court’s decision is based on ore tenus evidence, we will presume that its factual findings are correct, and we will not set them aside unless they are plainly and palpably wrong or unjust. See Tyler v. Tyler, 990 So.2d 423, 428 (Ala.Civ.App.2008). We do not extend this presumption of correctness to the trial court’s application of the law to the facts, however. See Hinds v. Hinds, 887 So.2d 267, 271 (Ala.Civ.App.2003). Instead, we review a trial court’s application of the law to the facts de novo. See Town of Cedar Bluff v. Citizens Caring for Children, 904 So.2d 1253, 1255-56 (Ala.2004).

Jeanette contends that the trial court erred by granting relief to Jay that he did not request in his complaint. Specifically, she argues that, in his complaint, Jay sought only a declaration as to the parties’ ownership interests in the property and that the trial court, in addition to making the determination requested, improperly went further and divided the parties’ interests in the property. We agree.

In Chapman v. Gooden, 974 So.2d 972 (Ala.2007), our supreme court stated:

“We first address the defendants’ contention that the trial court erred in ordering relief in paragraphs 8-10 of its order based on an issue never joined by the parties, namely, the constitutionality of § 177(b)[, Ala. Const. 1901]. We recognize the rule that a ‘final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in the party’s pleadings.’ Ala. R. Civ. P. 54(c). However, the rule has its limits:
“‘A court may not, without the consent of all persons affected, enter a judgment which goes beyond the claim asserted in the pleadings.... Unless all parties in interest are in court and have voluntarily litigated some issue not within the pleadings, the court can consider only the issues made by the pleadings, and the judgment may not extend beyond such issues nor beyond the scope of the relief demanded.
“ ‘The foregoing rules are all fundamental and state nothing more than the essentials of due process and of fair play. They assure to every perr son his day in court before judgment is pronounced against him.’
“Central Bank of Alabama, N.A. v. Ambrose, 435 So.2d 1203, 1206 (Ala.1983) (quoting Sylvan Beach, Inc. v. Koch, 140 F.2d 852, 861-62 (8th Cir.1944)). The question thus resolves itself to whether the relief given by the trial court is based upon issues that ‘were in the case.’ 435 So.2d at 1207 (emphasis added).”

974 So.2d at 984-85. See also Price v. Price, 442 So.2d 121, 122-23 (Ala.Civ.App.1983) (“ ‘[I]f the relief granted pursuant to Rule 54(c) is not justified by the proof or is justified by proof which the opposing party has not had an opportunity to challenge, the relief granted should not be sustained on appeal.’ ” (quoting Carden v. Penney, 362 So.2d 266, 269 (Ala.Civ.App.1978))).

The effect of the trial court’s judgment in the present case was to declare that Jay and Jeanette were tenants in common of the property, to partition the property, and to require Jeanette to sell her interest in the property to Jay. Section 35-6-100 et seq., Ala.Code 1975, provides the statutory basis for allowing a tenant in common to purchase the interests of the other tenants in common as was ordered by the trial court in this case. Section 35-6-100 provides:

“Upon the filing of any petition for a sale for division of any property, real or personal, held by joint owners or tenants in common, the court shall provide for the purchase of the interests of the joint owners or tenants in common filing for the petition or any others named therein who agree to the sale by the other joint owners or tenants in common or any one of them. Provided that the joint owners or tenants in common interested in purchasing such interests shall notify the court of same not later than 10 days prior to the date set for trial of the case and shall be allowed to purchase whether default has been entered against them or not.”

If the tenants in common are not able to agree on a price, “the value of the interest or interests to be sold shall be determined by one or more competent real estate appraisers or commissioners, as the court shall approve, appointed for such purpose by the court,” and the appraisers are to make a report to the court of the value of the interest or interests to be purchased. § 35-6-101. The cotenant purchasing the other cotenants’ interest must pay the determined amount into court, and, upon so doing, the clerk is to issue an instrument transferring the purchased interest to the purchasing cotenant. § 35-6-102.

In the present case, Jay styled his complaint a “petition for declaratory judgment,” and, for all that appears in the complaint, he sought only a declaration as to the parties’ rights in the property. There is nothing in his complaint indicating that he sought to have the trial court partition the property and order Jeanette to sell to him her interest in the property. Jay did not give notice 10 days before the trial, as required by § 35-6-100, that he was interested in purchasing Jeanette’s interest in the property. Although some of the evidence adduced at trial focused on the value of the property and the value of the improvements that had been made to the property, we conclude, after a review of the transcript of the trial, that the testimony provided was not sufficient to place Jeanette on notice that the trial court might require her to sell her interest in the property to Jay, and we further conclude that the evidence was not sufficient to support the trial court’s judgment awarding Jay such relief, given the clear lack of notice required by § 35-6-100 and the absence of a valuation of the property by an appraiser or commissioner as required by § 35-6-101.

We hold, based on the pleadings and the evidence presented, that Jeanette did not voluntarily litigate, implicitly or otherwise, the issue whether she should be required to sell her interest in the property to Jay. Thus, Rule 54(c), Ala. R. Civ. P., which generally provides that the final judgment “shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in the party’s pleadings,” did not permit the trial court in this case to “ ‘enter a judgment which goes beyond the claim asserted in the pleadings,’ ” i.e., Jay’s claim for a declaration of the parties’ rights in the property. Chapman, 974 So.2d at 984. The trial court, having resolved the issue set forth in Jay’s complaint by determining that the effect of the various deeds was to create a tenancy in common in the property between Jay and Jeanette, was not permitted to afford the parties additional relief.

In addition to relying on Rule 54(c), which, as noted above, does not support the challenged aspect of the trial court’s judgment, Jay argues that the trial court’s order that Jeanette sell her interest in the property to him is supported by § 6-6-230, Ala.Code 1975, which provides that “[fjurther relief based on a declaratory judgment may be granted whenever necessary or proper.” We do not read that section as granting a trial court the power, after entering a declaratory judgment, to enter additional relief that was not requested in the pleadings, that was not litigated by the parties, and that is not supported by the evidence. Thus, Jay’s argument in this regard is without merit.

For the foregoing reasons, we conclude that the trial court erred when it ordered Jeanette to sell her undivided, one-half interest in the property to Jay. As a result, its judgment is reversed and the cause is remanded.

REVERSED AND REMANDED.

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

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

      . Jeanette argues that she was not served with a copy of Jay’s posttrial brief before the entry of the final judgment. We note that Jay did not attach to his posttrial brief a certificate of service indicating service of the brief on Jeanette.

      . On appeal, both Jay and Jeanette agree that the trial court's finding that they are tenants in common of the property was correct. Thus, we accept that aspect of the judgment as accurate.

      . Because we resolve the appeal in this manner, we pretermit consideration of Jeanette’s additional appellate arguments.


source: Caselaw Access Project

author: PITTMAN, Judge.

license: Public Domain

text:
    K.C. v. R.L.P.
    2090797.
    Court of Civil Appeals of Alabama.
    Jan. 14, 2011.
    Jacqueline E. Austin and J. Pratt Austin-Trucks of Law Offices of Jacqueline E. Austin, Wetumpka, for appellant.
    James V. Green, Jr., Alabaster, for ap-pellee.
   PITTMAN, Judge.

K.C. (“the mother”) appeals from a judgment of the Elmore Juvenile Court purporting to modify, in response to a request by R.L.P. (“the father”), visitation and the place of visitation exchange with respect to the parties’ son (“the child”). The juvenile court’s judgment ostensibly reinstated the father’s visitation rights, which had been temporarily suspended pending a hearing on the mother’s ex parte motion claiming that the father and his current wife were physically and verbally abusing the child. We dismiss the appeal as being from a void judgment.

The record reveals that the parties have never been married. The child has lived with the mother since he was born in 2002. The juvenile court first exercised jurisdiction over the parties with respect to custody of the child when it awarded the mother primary physical custody of the child and the father visitation rights in 2006, presumably incident to a paternity judgment; in 2008, it modified its previous judgment. The father initiated the present action in the juvenile court in September 2009. In his petition, the father sought to modify visitation, to change the place of visitation exchange, and to hold the mother in contempt for allegedly interfering with the father’s exercise of visitation and his relationship with the child. In December 2009, the mother filed an answer and submitted a counterclaim seeking to reduce the father’s visitation rights. In January 2010, the mother filed an ex parte motion to suspend the father’s visitation rights. The juvenile court purported to grant the mother’s ex parte motion pending its final determination of the father’s and the mother’s claims. After hearing evidence presented ore tenus, the juvenile court issued an order purporting to reinstate the father’s visitation rights and changing the location of exchange. The mother thereafter appealed to this court, asserting that the juvenile court had acted outside its discretion by reinstating the father’s visitation rights and by excluding certain parts of the child’s psychologist’s testimony. However, rather than addressing those questions, we are required to dismiss this appeal because the juvenile court’s judgment in this action is void for lack of subject-matter jurisdiction.

“[A] lack of subject-matter jurisdiction is not subject to waiver by the parties, and it is our duty to consider a lack of subject-matter jurisdiction ex mero motu.” Ex parte T.C., 63 So.3d 627, 630 (Ala.Civ.App.2010) (citing Ex parte Progressive Specialty Ins. Co., 31 So.3d 661, 662 n. 1 (Ala.2009)). In Ex parte T.C., supra, we explained the recent change in the law regarding the juvenile court’s exercise of retained jurisdiction over child-custody determinations when a child has not been found to be dependent, delinquent, or in need of supervision:

“Under former law, ‘once a juvenile court obtained] jurisdiction in any case involving a child,’ ... ‘that court re-tainted] jurisdiction over that case until the child reache[d] the age of 21 years or until the court, by its own order, terminated] that jurisdiction.’ W.B.G.M. v. P.S.T., 999 So.2d 971, 973 (Ala.Civ.App.2008) (citing former §§ 12-15-32(a) & 26-17-10(e), Ala.Code 1976). Thus, under former law, ‘[w]hen a juvenile court ha[d] jurisdiction to make an initial child-custody determination, it re-tainted] jurisdiction over a petition to modify that custody judgment to the exclusion of any other state court until the child reached] 21 years of age or the juvenile court terminated] its jurisdiction.’ Id. at 974. ...
“However, ... the Legislature has mandated a contrary rule as to custody cases filed after January 1, 2009:
“‘Act No. 2008-277, Ala. Acts 2008, replaces ... § 12 — 15—32[ ] with a new Code section, Ala.Code 1975, § 12-15-117, that limits a juvenile court’s retained jurisdiction to cases in which “a child has been adjudicated dependent, delinquent, or in need of supervision ” (emphasis added [in W.B.G.M.
999 So.2d at 975 (Pittman, J., concurring specially). To like effect is § 12-15-114(a), which provides that although a juvenile court has original jurisdiction to decide an action alleging that a child is dependent, ‘[a] dependency action shall not include a custody dispute between parents.’ The clear intent of the Legislature was to provide that the juvenile courts of this state should no longer be deciding custody disputes except insofar as their resolution is directly incidental to core juvenile-court jurisdiction (such as in original paternity actions, see Ala.Code 1975, § 26-17-104). ...
“... To the extent that a juvenile court has properly made an initial custody award, or has properly modified a custody judgment under the statutory framework set forth in the main opinion in W.B.G.M., those judgments remain valid and enforceable nothwithstanding [Ala.Code 1975, §§ 12-15-114 and 12-15-117]. Any such judgments would, however, be prospectively modifiable in Alabama only by the circuit courts, which are constitutionally constituted as ‘trial courts of general jurisdiction.’ Ala. Const. 1901, § 139(a) (Off.Recomp.).”

Ex Parte T.C., 63 So.3d at 630-31.

Because the child has never been found dependent, and because the present action was filed after January 1, 2009, it could only have been properly filed in the circuit court. The mother’s appeal is therefore dismissed. The juvenile court is directed to vacate its judgment and to dismiss the father’s and the mother’s claims forthwith.

APPEAL DISMISSED WITH INSTRUCTIONS.

THOMAS and MOORE, JJ., concur.

THOMPSON, P.J., and BRYAN, J., concur in the result, without writings.


author: MOORE, Judge.

text:
    Anne MARKS, individually, and as personal representative of the estate of Robert E. Marks, Sr. v. RESTON CONSTRUCTION, INC.
    2091204.
    Court of Civil Appeals of Alabama.
    Jan. 21, 2011.

      H. Arthur Edge III and Joseph H. McClure III of H. Arthur Edge, P.C., Birmingham, for appellant.
    W. Ivey Gilmore, Jr., and William S. Poole III of Gilmore & Poole LLC, Tuscaloosa, for appellee.
   MOORE, Judge.

Anne Marks, individually, and as personal representative of the estate of Robert E. Marks, Sr. (“Bobby”), appeals from a partial summary judgment entered by the Tuscaloosa Circuit Court (“the trial court”) in favor of Reston Construction, Inc. (“Re-ston”). We dismiss the appeal as being from a nonfinal judgment.

Bobby and his wife, Anne Marks (“Anne”), filed a complaint on February 15, 2007, in the trial court against Reston. In their complaint, the Markses asserted that they were the first owners of a house in Tuscaloosa, which, they alleged, had been built by Reston in 1998 or 1999. The Markses further asserted that the house had been clad in an “Exterior Insulation and Finishing System” (“EIFS”), which is a “multi-layered exterior wall systemf] consisting of a finish coat, a base coat, mesh, and insulation board, all of which are mechanically or with an adhesive secured to plywood or other substrate” and is commonly referred to as “synthetic stucco.” According to the complaint, an engineering report conducted at the Markses’ request revealed numerous errors in the EIFS application and other construction defects. The Markses asserted that they hired Reston to reclad their house; that, by June 2004, the EIFS cladding had been removed and replaced with brick; that mold was subsequently discovered; that Reston agreed to remediate the mold in their house; and that Reston performed work in that regard in December 2004. The Markses further alleged in their complaint that mold continued to grow in the house after those repairs, that Reston again undertook to alleviate the mold and moisture problem in December 2005, and that the repairs and remediation were again improperly performed and high concentrations of mold were discovered upon a later inspection of the house. The Markses asserted claims of negligent repair; negligent hiring, supervision, and training; negligent remediation; fraudulent suppression; fraudulent misrepresentation; and breach of contract. The Markses filed an amended complaint on June 28, 2007. Reston filed an answer to the complaint and the amended complaint on November 6, 2007.

On December 30, 2008, Reston filed a counterclaim against Bobby, requesting a declaratory judgment based on a “General Release and Indemnity Agreement” (“the release”) that had allegedly been signed by Bobby “discharging Reston and its insurer from liability.” Reston sought a judgment declaring the rights, obligations, and liabilities of the parties with respect to the release and ordering the Markses to indemnify Reston for the claims asserted against Reston in the Markses’ complaint as last amended.

A suggestion of death was filed on February 16, 2009, alleging that Bobby had died on January 26, 2009. Anne, as the personal representative of Bobby’s estate (“the estate”), was substituted for Bobby on all claims and counterclaims.

Anne, individually, and as the personal representative of the estate, filed an answer to Reston’s counterclaim on February 16, 2009. On May 22, 2009, Reston filed a motion for a summary judgment on the claims asserted in the complaint as last amended based on the release and for the entry of a judgment declaring its right to indemnity, also based on the terms of the release. Anne filed an opposition to Re-ston’s summary-judgment motion on June 17, 2009.

On July 6, 2009, the trial court granted Reston’s summary-judgment motion; the trial court’s judgment stated, in pertinent part:

“It is undisputed [Bobby] signed a ‘General Release and Indemnity Agreement’ on March 14, 2005. The release is poorly worded and appears to be a form type document, or combination of forms, prepared and signed by both parties without legal assistance. Nevertheless, after considering all appropriate materials on file, the release is effective to bar any ‘claims, demands, damages, actions, causes of action or suits of any kind or nature whatsoever, in law or equity, whether real, inchoate, known or unknown, both to person and property up to March 14, 2005, by or through [Bobby] or his estate, and by [Anne] who ratified the release. Thus, summary judgment is tendered in favor of Reston Construction, Inc. against [Anne, individually, and as personal representative of the estate,] for all alleged acts or omissions up through March 14, 2005.
“Reston also filed a summary judgment motion regarding the ‘indemnification’ language in the document, claiming that [Bobby’s] estate is required to indemnify and hold Reston harmless. The indemnification language is not sufficiently certain to [enter] summary judgment, as there appear to be genuine issues of material fact regarding the scope. Summary judgment is denied on the counterclaim.
“The case will be set for a status conference to determine what elaim(s) remain to be tried. It is not entirely clear whether any act or omission of Reston allegedly occurred after March 14, 2005. The summary judgment is not made final at this time.”

On August 5, 2009, Anne filed a motion to alter, amend, or vacate the trial court’s judgment; that motion was denied on August 11, 2009. On May 25, 2010, Reston filed a renewed motion for a summary judgment on the remaining claims. Anne filed an opposition to that motion on July 7, 2010. On July 12, 2010, the trial court entered a summary judgment in favor of Reston on Anne’s and the estate’s remaining claims, stating that “there are no genuine issues of material fact regarding any subsequent acts or omissions and [Reston] is entitled to a judgment as a matter of law.” The trial court certified its judgment as final, pursuant to Rule 54(b), Ala. R. Civ. P., noting that Reston’s counterclaim for indemnity remained pending. On August 6, 2010, Reston filed a motion to stay the trial on Reston’s counterclaim, asserting that the outcome of the appeal might affect the determination of that counterclaim. On August 9, 2010, the trial court entered an order staying the case and transferring the case to its administrative docket. Anne filed a notice of appeal to the Alabama Supreme Court on August 23, 2010; that court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala. Code 1975.

Anne argues on appeal that the trial court erred by entering a summary judgment in favor of Reston because, she says, the trial court misinterpreted the terms of the release. Before we address that argument, we first address the finality of the trial court’s summary judgment for purposes of our review on appeal. In Gregory v. Ferguson, 10 So.3d 596, 597 (Ala.Civ.App.2008), this court stated:

“Neither party has raised the issue of the appropriateness of the trial court’s Rule 54(b)[, Ala. R. Civ. P.,] certification of its ... summary-judgment order. However, this court may consider that issue ex mero motu because the issue whether a judgment or order is sufficiently final to support an appeal is jurisdictional. Owen v. Hopper, 999 So.2d 958, 955 (Ala.Civ.App.2008) (quoting Trousdale v. Tubbs, 929 So.2d 1020, 1022 (Ala.Civ.App.2005)); see also Summerlin v. Summerlin, 962 So.2d 170 (Ala.2007) (determining, ex mero motu, that a Rule 54(b) certification was not appropriate under the facts of the case). Certifications of finality pursuant to Rule 54(b) of an otherwise interlocutory order should not be routinely entered and should be made only in exceptional cases. Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1373, 1374 (Ala.1987).
“ ‘In some instances, a Rule 54(b) certification may not be appropriate. When pending claims “ ‘are so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results,’ ” our courts may determine a Rule 54(b) certification to be invalid. Gray v. Central Bank of Tuscaloosa, N.A., 519 So.2d 477, 479 (Ala.1987) (quoting Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1373, 1374 (Ala.1987)).’
“BB & S Gen. Contractors, Inc. v. Thornton & Assocs., Inc., 979 So.2d 121, 123 (Ala.Civ.App.2007).”

In Gregory, Gregory filed a complaint against Ferguson based on, among other things, breach of contract. 10 So.3d at 597. Ferguson counterclaimed, alleging that Gregory had falsely represented that he was a licensed contractor and that Gregory had failed to pay subcontractors Gregory had hired, as was required by the contract between the parties. 10 So.3d at 597. The trial court entered a summary judgment in favor of Ferguson on Gregory’s claims and certified that summary judgment as final, pursuant to Rule 54(b), while Ferguson’s counterclaims remained pending. Id. This court determined that both Gregory’s claims against Ferguson and Ferguson’s counterclaims against Gregory required the resolution of “the issue of the interpretation and the proper enforcement of their contract or agreement” and, thus, that “ ‘the parties’ ... claims are dependent on each other and a resolution of one claim would impact the determination of the other.’ ” Id. at 598 (quoting BB & S Gen. Contractors, Inc. v. Thornton & Assocs., Inc., 979 So.2d 121, 125 (Ala.Civ.App.2007)). This court then concluded that Gregory’s claims and Ferguson’s counterclaims were too closely intertwined to support the Rule 54(b) certification, and we dismissed Gregory’s appeal as having been taken from a nonfinal judgment. Id.

In the present case, the trial court relied on the terms of the release in entering the summary judgment in favor of Reston on Anne’s and the estate’s claims. Thus, those claims were disposed of pursuant to an interpretation of those contractual terms. Similarly, the determination of Re-ston’s counterclaim necessarily requires the trial court to interpret the terms of the release. In interpreting the release with regard to Anne’s and the estate’s claims and Restoris counterclaim, the trial court is first charged with determining whether the terms apply to Anne’s and the estate’s claims against Reston. Like in Gregory, the resolution of one claim would necessarily impact the resolution of the other. Moreover, a determination by the trial court that the indemnity clause is inapplicable in the present case could potentially lead to a contradictory result from the determination of those claims already disposed of by the summary judgment.

We conclude, therefore, that the claims and counterclaim involved in the present case are too closely intertwined and that, therefore, certification of the partial summary judgment on Anne’s and the estate’s claims as final pursuant to Rule 54(b) was inappropriate. Accordingly, we dismiss the appeal. See Gregory, 10 So.3d at 598.

APPEAL DISMISSED.

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


author: THOMAS, Judge.

text:
    Percy MARSH v. Heather Marsh SMITH.
    2091108.
    Court of Civil Appeals of Alabama.
    Jan. 21, 2011.

      Charles H. Jones, Jr., Mobile, for appellant.
    Desmond B. Toler, Mobile, for appellee.
   THOMAS, Judge.

Percy Marsh (“the father”) appeals from a judgment of the Mobile Circuit Court denying his request for a modification of custody. The father and Heather Marsh Smith (“the mother”) were divorced in July 2005; the divorce judgment awarded the parties joint custody of the parties’ daughter (“the child”), with the parents having alternating weeklong custodial periods. The joint custodial arrangement functioned well until the mother remarried and decided to move from Mobile County, where both parents had resided after the divorce, to Lucedale, Mississippi.

The mother informed the father of her intent to relocate via conversations regarding the matter, but she failed to serve the father with the appropriate written notice containing the information required by Ala.Code 1975, § 30-3-165, a part of the Alabama Parent-Child Relationship Protection Act (“the Act”), codified at Ala. Code 1975, § 30-3-160 et seq. The father then filed in the trial court a petition to hold the mother in contempt for failing to properly provide notice of her relocation; in his motion, he requested temporary custody of the child until the mother returned to Mobile County.

In response to the father’s petition, the mother counterpetitioned for a modification of custody, seeking sole custody of the child. The father then counterpetitioned for a modification, seeking sole custody of the child as well.

The father sought emergency temporary custody of the child in March 2008 based on the mother’s endangering the safety of the child by giving the child an overdose of a prescription medication. The mother opposed the father’s motion, alleging that her mistake in giving the child too much of the medication was inadvertent and that the issue had been promptly and properly han-died by the mother. However, after a hearing, the parties agreed to place the child in the temporary sole physical custody of the father and for the mother to have visitation from Thursday afternoon to Sunday evening on alternating weekends.

At the trial in November 2008, the mother admitted that she had relocated to Lucedale, Mississippi, where she resided with her current husband. She explained that they lived next door to her current husband’s parents, Marion and Bobbi Smith (collectively referred to as “the Smiths”), and that the child spends time with them and her current husband’s grandchildren, who also live nearby, when the child is in Mississippi. The mother further explained that she had begun exercising her custodial or visitation periods in Mobile County when the father and the guardian ad litem had objected to her relocation to Mississippi; she said that the Smiths had allowed her to use their residence in Chickasaw during her custodial or visitation periods. According to the mother, she and the child slept in the same bed during the mother’s custodial or visitation periods and the mother’s current husband slept on the couch in the Chickasaw house. During the litigation, the mother objected to the father’s practice of allowing the child to sleep with him during his custodial periods. As noted below, the father discontinued this practice when the mother made an issue of it. The mother also complained that the father had not taken the child to the doctor even after the divorce and had relied on her to do so; the father explained that he drove a truck to and from New Orleans twice per day during that period and that he was not available to pick up the child from day care to take her to the doctor’s office. Otherwise, the mother had no real complaints about the father’s parenting.

The father testified that the child had slept in his bed with him when he had custody of her. He explained that he had discontinued that practice when the mother had objected to that practice, citing its “inappropriateness.” The father denied that having the daughter, who was six at the time of trial, sleep in his bed was inappropriate. According to the father, the child enjoyed being with both of her parents; the father said that he would have expected the child to feel this way. The father also said that he felt that the mother was selfish and that she could be a better mother if she would put the needs of the child first. The father focused on the mother’s inadvertent overdosing of the child as evidence that her parenting skills were lackluster.

Regarding the overdosing incident, the mother testified that the child had had an allergic reaction of some kind during the time she was taking an antibiotic for an upper respiratory infection. When the hives the child suffered from did not resolve overnight after the mother had administered a dose of the over-the-counter medication Benadryl, the mother took the child to the emergency room, where the physician on duty prescribed a steroid medication. The mother said that she inadvertently gave the child the steroid medication on the antibiotic dosing schedule; that is, she gave the child a dose of the steroid each time the child was to receive a dose of the antibiotic, which was more frequently than the dose of the steroid was to be administered. When the mother realized her mistake, she said she took the child to the emergency room at once. Once the child was seen at the emergency room, the child was found to have suffered no severe ill effects. The mother said she was told that the child could have had a more severe reaction to the overdose but that she had not. The mother also said that she was told to wean the child off of the steroid medication because stopping it at once could cause an adverse reaction as well. The mother said that she explained the entire situation, including her part in improperly administering the medication, to the father. The mother said that she had requested permission from the father to keep the child in her custody for a few extra days to monitor her because of the mother’s concern regarding the incident but that the father had not agreed.

The father testified that the mother had attempted to conceal the incident from the father by requesting to keep the child a few extra days. However, the father said, he had denied the mother’s request, thus forcing her to reveal that the child had been improperly administered medication. He said that the mother had also overdosed the child on the day she returned the child to him by having given her a second dose of the medication before the second dose was due to be administered. The father said that he took the child to her regular pediatrician, who told him that overdosing the medication was very dangerous to the child and who instructed him to take her off of the medication immediately.

The mother suffers from fibromyalgia and is on several medications because of her condition. She takes Darvocet, a narcotic pain reliever, as needed for the pain resulting from her condition, and she also takes Neurontin, Prozac, and Trazodone. The mother admitted that, at times, her condition and her medication have made her sleep during the day; she said that, after her medication was adjusted and after she was prescribed Trazodone to help her sleep at night, she had had fewer episodes of sleeping during the day.

The mother testified that she chose not to work after she took a leave of absence to care for her current husband when he suffered adverse consequences after an elective surgery.- The mother said that her current husband needed constant care after the surgery but that he was now much better at managing most daily tasks. She said that, with his income, she was able to elect to be a homemaker so that she could stay home to rear her children.

The father admitted that he had thought about committing suicide on at least one occasion. The mother testified that her first ex-husband, Richard Middle-brooks, who was a friend of the father’s, had intervened to prevent the father from committing suicide shortly after the parties’ divorce. The father explained that he had suffered, at times, from situational depression. He said that he considered his passing thoughts about committing suicide differently than actual plans to commit suicide. He said that he had sought counseling for his situational depression.

The trial court ordered a custody evaluation to be performed by Dr. John Davis. Dr. Davis’s report was entered into evidence at trial. Dr. Davis indicated that the pendente lite arrangement whereby the father had sole custody of the child while the mother exercised visitation from Thursday to Sunday on alternating weekends should be continued until some point in the future when “other living arrangements settle down and become steady.” Although Dr. Davis did indicate that the pendente lite custody arrangement should be continued because it appeared to provide a steady and consistent environment for the child, Dr. Davis noted in his report that the joint-custody arrangement enjoyed by the parties before the mother relocated had worked satisfactorily for the family. Based on his testing of and interviews with the father, the mother, the mother’s husband, and the child, however, Dr. Davis indicated in his report that the child would be properly cared for in both parents’ environments. Dr. Davis’s report also noted that the child had expressed that she loved her mother and her father equally but that she had indicated a preference to live with her mother.

After the November 2008 trial, the trial court entered a judgment in which it reaffirmed the joint-custody provisions of the parties’ divorce judgment. That judgment stated, in pertinent part:

“1. That the Motion for Contempt filed by the [father] was withdrawn, and the Motion for Temporary Custody filed by the [father] is now moot.
“2. That the Court finds that the [mother] resides in Mobile County when the minor child is with her.
“3. That the Court finds that there is not a material change in circumstances sufficient to modify custody; therefore both Motions to Modify Custody are hereby denied.
“4. That the Court reaffirms the custody and visitation order as set out in paragraphs six, seven, eight, and nine of the Judgment of Divorce previously entered by this Court.”

The father appealed that judgment, and this court reversed, basing our reversal on the trial court’s failure to apply the provisions of the Act to the parties’ respective custody petitions based on the trial court’s finding that the mother resided in Mobile County when she exercised her custodial periods with the child. Marsh v. Smith, 37 So.3d 174 (Ala.Civ.App.2009). In our analysis of the trial court’s judgment, we noted that the judgment

“did not require the mother to continue to exercise her visitation or custodial rights in Mobile County as a condition of maintaining joint custody of the child, nor did it otherwise place any restrictions on its reaffirmation of the custody and visitation provisions of the parties’ divorce judgment. Because nothing in the trial court’s judgment would prevent the mother from exercising her custodial periods with the child in Mississippi, we cannot conclude that the trial court’s judgment was responsive to the pleadings or faithful to the concerns underlying the passage of the Act.”

Marsh, 37 So.3d at 178.

On remand, the trial court entered a judgment on May 14, 2010, in which it stated that “[t]he Court reaffirms the prior order concerning the custody and visitation provisions of the parties. The mother’s custody and visitation rights, however, are hereby conditioned upon her maintaining a place of residence in Mobile County, Alabama where she is to exercise her custody and visitation rights.” The judgment further denied all other “requests] of the parties.” The father filed a postjudgment motion challenging the May 14, 2010, judgment on the grounds that it failed to comply with this court’s mandate and that it was not supported by the evidence presented; he later amended his motion to allege that the mother, after the entry of the May 14, 2010, judgment on remand, had begun taking the child to the mother’s home in Lucedale, Mississippi, to stay during the mother’s custodial periods, in contravention of the judgment on remand. The father’s motion was denied by operation of law. He then appealed.

On appeal, the father first argues that the trial court disregarded this court’s mandate on remand. He says that the trial court erred on remand by failing to follow this court’s remand instructions, which were to “adjudicate the parties’ custody-modification petitions in light of the provisions of the Act and in light of the evidence already presented to the court— including the undisputed evidence that, by relocating to Lucedale, Mississippi, the mother has changed her principal residence (and necessarily one of the child’s two principal residences) to a different state.” Marsh, 37 So.3d at 179. The father relies, in part, on the principle of “law of the case,” which, as we explained in Giardina v. Giardina, 39 So.3d 204, 208 (Ala.Civ.App.2009), requires a trial court to comply with the remand instructions given by the reviewing court.

“ ‘ “The issues decided by an appellate court become the law of the case on remand to the trial court, and the trial court is not free to reconsider those issues.” Ex parte S.T.S., 806 So.2d 336, 341 (Ala.2001) (citing Murphree v. Murphree, 600 So.2d 301 (Ala.Civ.App.1992)). Moreover, on remand, ‘the trial court’s duty is to comply with the appellate mandate “according to its true intent and meaning, as determined by the directions given by the reviewing court.’”” Ex parte Jones, 774 So.2d 607, 608 (Ala.Civ.App.2000) (quoting Walker v. Carolina Mills Lumber Co., 441 So.2d 980, 982 (Ala.Civ.App.1983), quoting in turn Ex parte Alabama Power Co., 431 So.2d 151, 155 (Ala.1983)).’ ”

Giardina, 39 So.3d at 208 (quoting Brown v. Brown, 20 So.3d 139, 141 (Ala.Civ.App.2009)).

We do not agree with the father that the trial court’s judgment on remand failed to comply with this court’s mandate. We ordered the trial court to consider the competing custody-modification petitions in light of the Act, which the trial court appears to have done. Although the trial court did not specifically outline the process by which it arrived at its new judgment, it is apparent that the trial court, by imposing the geographical restriction on the mother’s exercise of her custodial rights, rejected the mother’s request that she be allowed to relocate the principal residence of the child to Lucedale, Mississippi. See Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala.1996) (“[I]n the absence of specific findings of fact, appellate courts will assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous.”). Thus, the trial court’s judgment requiring that the mother’s custodial periods be exercised in Mobile County is tantamount to a denial of her request to be permitted to relocate with the child. The trial court also considered and denied both the mother’s and the father’s petitions to modify custody, as required by our mandate. We therefore cannot agree with the father that the trial court failed to follow our instructions on remand.

We next turn to the father’s mul-tipart argument that the trial court erred by denying his petition to modify custody. We note at the outset that, because the parents shared joint custody of the child, the father was required to prove that a material change of circumstances had occurred and that a change of custody would be in the child’s best interest. Ex parte Couch, 521 So.2d 987, 989 (Ala.1988). Our review of the trial court’s custody judgment is limited.

“When evidence in a child custody case has been presented ore tenus to the trial court, that court’s findings of fact based on that evidence are presumed to be correct. The trial court is in the best position to make a custody determination — it hears the evidence and observes the witnesses. Appellate courts do not sit in judgment of disputed evidence that was presented ore tenus before the trial court in a custody hearing.”

Ex parte Bryowsky, 676 So.2d at 1324. As noted above, in the absence of specific findings of fact, this court presumes that the trial court made those findings that would support its judgment, provided that such findings are supported by the evidence at trial. Id.

The father makes several separate arguments in support of his contention that the overwhelming weight of the evidence supports a conclusion that a modification of custody was warranted. Because we have concluded that the trial court complied with our mandate on remand by considering and applying the Act and by denying the mother’s request to relocate the child’s principal residence to Lucedale, Mississippi, we do not agree with the father that the trial court determined that the mother had overcome the presumption stated in Ala.Code 1975, § 30-3-169.4, that relocation was not in the child’s best interest. The father is correct in arguing that a material change of circumstances did occur — we stated in Marsh that the mother’s relocation was a material change in circumstances, Marsh, 37 So.3d at 178; however, a trial court is not required to modify custody merely because a change of circumstances has occurred.

“In cases in which a parent seeks a modification of a joint-custody arrangement, the parent must prove ‘ “a material change of circumstances of the parties since the prior [judgment] which change of circumstances is such as to affect the welfare and best interest of the child or children involved.” ’ Watters v. Watters, 918 So.2d 913, 916 (Ala.Civ.App.2005) (quoting Ponder v. Ponder, 50 Ala.App. 27, 30, 276 So.2d 613, 615 (Ala.Civ.App.1973)). In cases in which neither parent has previously been awarded primary physical custody, including cases in which the parties’ agreement to share physical custody was incorporated into the divorce judgment, ‘ “ ‘the best interests of the child’ standard applies.”’ New v. McCullar, 955 So.2d [431] 435 [ (Ala.Civ.App.2006) ] (quoting Ex parte Johnson, 673 So.2d 410, 413 (Ala.1994)).”

Morgan v. Morgan, 964 So.2d 24, 34 (Ala.Civ.App.2007). Thus, the trial court was required to determine whether a modification of custody would be in the best interest of the child.

The father argues that the trial court ignored the recommendation of the court-appointed psychologist, Dr. Davis, and the “unspoken” recommendation of the guardian ad litem that custody of the child should be awarded to the father. The father admits that the trial court would not be bound by the opinion of either Dr. Davis or the guardian ad litem. See C.J.L. v. M.W.B., 879 So.2d 1169, 1181 (Ala.Civ.App.2003) (“[A] trial court may consider, although it is not bound to follow, a recommendation made by a guardian ad litem.”); Ex parte R.D.N., 918 So.2d 100, 105 (Ala.2005) (noting, in a case disapproving of ex parte communication between a guardian ad litem and the trial court, that a trial court has the discretion to “disagree!] with the recommendation of its court-appointed professional in evaluating [a] custody issue”). Thus, although the trial court had evidence and recommendations from which it could have concluded that a change of custody to the father would be in the child’s best interest, it was by no means required to so conclude.

The father further argues that the trial court’s denial of his petition for modification ignores the evidence regarding the mother’s endangering the life of the child with a medication overdose. The evidence at trial regarding whether the mother attempted to hide the incident was disputed; the mother insisted that she had been candid with the father. In addition, as the mother argues in her brief on appeal, the mother testified at trial that the incident had deeply upset her and that she had acted prudently and quickly once she realized her grave error. Indeed, as the father points out, the medication overdose was dangerous and posed a risk to the child’s health; however, the mother acted responsibly once the mistake was discovered, and the child has suffered no ill effects as a result of the inadvertent overdose. We cannot agree with the father that the trial court’s decision not to modify custody on the basis that the mother had accidentally overdosed the child on a medication is reversible error.

Overall, the testimony at trial established that, until the mother remarried and chose to relocate to Lucedale, Mississippi, the joint-custody arrangement was working well for the family. Both parties testified that the pendente lite arrangement, pursuant to which the mother exercised her visitation or custodial periods in Chickasaw, was working well at the time of trial. The father also testified that he would have had no problem continuing the joint-custody arrangement had the mother not moved to Lucedale, Mississippi. Our state favors joint custody, when appropriate, as a means to foster “frequent and continuing contact with parents who have shown the ability to act in the best interest of their children.” Ala.Code 1975, § 80-3-150. The evidence at trial indicated that the parents had demonstrated this ability since the divorce. Thus, the trial court had abundant evidence from which it could have concluded that a continuation of the joint-custody arrangement would be in the best interest of the child, provided the mother was not permitted to change the principal residence of the child. The trial court’s judgment, which requires that the mother exercise her custodial periods in Mobile County, accomplishes both a maintenance of the child’s principal residence in Mobile County and a continuation of the joint-custody arrangement that has worked well for the family since the divorce. Thus, we cannot agree that the trial court erred in denying the father’s petition to modify custody.

The father next argues that the trial court erred by failing to grant his amended postjudgment motion, to which he attached a letter from the mother’s attorney indicating that the mother did not intend to remain in Mobile County to exercise her custodial periods other than during those times that the child was attending school. The father argues that the trial court erred by failing to reopen the evidence to accept that letter from the mother’s attorney and in failing to vacate its judgment continuing the joint-custody arrangement in order to enter a new judgment awarding custody of the child to the father. Although we agree with the father that the letter from the mother’s counsel indicates the mother’s intent to disobey the restriction placed upon the exercise of her custodial periods, we cannot agree that the trial court erred by not reopening the evidence or by failing to vacate its May 14, 2010, judgment.

The father’s postjudgment motion sought to have the trial court alter, amend, or vacate the May 14, 2010, judgment under Rule 59, Ala. R. Civ. P. In order to prevail on such a motion, the father was required to submit newly discovered evidence that warranted the reopening of the evidence. Bates v. State, 503 So.2d 856, 858 (Ala.Civ.App.1987) (stating that motions seeking relief from a judgment on the ground of newly discovered evidence are not granted “when the new evidence comes into being following the conclusion of the trial”). As this court explained in Bates, “[r]elief is barred when it is based on this type of evidence because trials would have the potential to become never-ending.” Bates, 503 So.2d at 858 (citing Moody v. State ex rel. Payne, 344 So.2d 160, 163 (Ala.1977) (“There can be no ... relief for evidence which has come into existence after the trial is over simply because such a procedure would allow all trials perpetual life.”)). The father submitted new evidence — that is, evidence of the mother’s intent to ignore the requirements of the May 14, 2010, judgment when the child was not required to attend school in Mobile County — which was made after the entry of the judgment requiring her to exercise her custodial periods in Mobile County. This new evidence does not support the reopening of the evidence or the vacation of the judgment because it does not assail the evidence upon which the judgment was based. Instead, such new evidence properly forms the basis of a contempt action or a modification action. See Estrada v. Redford, 855 So.2d 551, 554 (Ala.Civ.App.2003) (stating that “[a] change in the mother’s income that occurred after the trial is ‘new evidence’ not ‘newly discovered evidence,’ ” and might entitle the mother to a modification of her child-support obligation). Thus, the trial court did not err in failing to grant the father’s postjudgment motion.

Finally, the father argues that the trial court erred by. refusing to grant the father an attorney fee. Although he admits that the award of such a fee rests entirely in the discretion of the trial court, the father argues that the mother’s decision to move to Mississippi prompted his need to file his objection to her relocation and to seek sole custody. In addition, he notes that other issues arose during the litigation, including the mother’s refusal to pay for half of the child’s day-care expenses and the need to file motions to compel when the mother failed to timely respond to discovery requests. Because the mother testified that she did not need to, and had no intention to, return to gainful employment because of the adequacy of her husband’s disability income to meet their needs, the father argues that she has sufficient funds from which she could pay at least a poi’tion of his attorney fees.

“Whether to award an attorney fee in a domestic relations case is within the sound discretion of the trial court and, absent an abuse of that discretion, its ruling on that question will not be reversed. Thompson v. Thompson, 650 So.2d 928 (Ala.Civ.App.1994). ‘Factors to be considered by the trial court when awarding such fees include the financial circumstances of the parties, the parties’ conduct, the results of the litigation, and, where appropriate, the trial court’s knowledge and experience as to the value of the services performed by the attorney.’ Figures v. Figures, 624 So.2d 188, 191 (Ala.Civ.App.1993).”

Glover v. Glover, 678 So.2d 174, 176 (Ala.Civ.App.1996).

Although the father is correct that the mother testified that her situation is such that she is financially able to be a homemaker, the mother testified that her current husband’s disability income was then-sole support. In addition, although the mother also testified that she had sold her home in Mobile County, she said that she had spent all but about $5,000 of the proceeds from that sale. Thus, the mother’s financial circumstances are not so positive that equity demands that she fund a portion of the father’s attorney fees. Nor does the outcome of the litigation in this case compel a conclusion that the mother should bear the cost of the father’s attorney fee; although the litigation was not entirely resolved in the mother’s favor, it was also not resolved solely in favor of the father. Thus, we conclude that the trial court’s decision not to award the father an attorney fee was not an abuse of its discretion.

AFFIRMED.

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

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

      . The mother has an older child from a previous marriage.

      . The guardian ad litem offered to give her recommendation at trial; however, the trial court did not request that the guardian ad litem state her recommendation on the record. The mother indicated in her testimony that the guardian ad litem appeared to favor the father, and the father asserts that, based on that testimony, we may "glean” that the guardian ad litem would have recommended a modification of custody to the father.


text:
    John Lewis REESE v. Kathleen T. HOLSTON.
    2090886.
    Court of Civil Appeals of Alabama.
    Jan. 21, 2011.
    Harold W. Morris, Opelika, for appellant.
   THOMAS, Judge.

John Lewis Reese appeals from a judgment of the Lee Circuit Court determining that he and Kathleen T. Holston had entered into a eommon-law marriage, divorcing the parties, and awarding Holston certain real property. We reverse and remand.

On January 29, 2008, Holston filed a complaint for a divorce in the trial court, alleging that she and Reese had entered into a common-law marriage on December 23, 1999. Among other things, Holston requested that the trial court award her a house that she alleged had been the parties’ marital residence (“the property”). In response, Reese filed an answer denying that he and Holston had a common-law marriage.

The trial court conducted a hearing on December 18, 2009, at which it heard ore tenus evidence. Thereafter, on February 22, 2010, the trial court entered a judgment determining that a common-law marriage existed between the parties, divorcing the parties, awarding Holston the property, and ordering Holston to pay Reese $22,469.06 for his equity in the property and to assume the mortgage on the property. Reese filed a postjudgment motion, which the trial court denied. Reese subsequently appealed to this court.

On appeal, Reese argues that the trial court erred in determining that he and Holston had entered into a common-law marriage because, he says, the evidence was insufficient to support its determination.

The Alabama Supreme Court stated in Lofton v. Estate of Weaver, 611 So.2d 335, 336 (Ala.1992):

“‘Courts of this state closely scrutinize claims of common law marriage and require clear and convincing proof thereof.’ Baker v. Townsend, 484 So.2d 1097, 1098 (Ala.Civ.App.1986), citing Walton v. Walton, 409 So.2d 858 (Ala.Civ.App.1982). A trial judge’s findings of facts based on ore tenus evidence are presumed correct, and a judgment based on those findings will not be reversed unless they are found to be plainly and palpably wrong. Copeland v. Richardson, 551 So.2d 353, 354 (Ala.1989). The trial court’s judgment must be viewed in light of all the evidence and all logical inferences therefrom, and it “will be affirmed if, under any reasonable aspect of the testimony, there is credible evidence to support the judgment.’ Adams v. Boan, 559 So.2d 1084, 1086 (Ala.1990) (citation omitted).”

Clear and convincing evidence is

“ ‘[ejvidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion. Proof by clear and convincing evidence requires a level of proof greater than a preponderance of the evidence or the substantial weight of the evidence, but less than beyond a reasonable doubt.’
“§ 6 — 11—20(b)(4), Ala.Code 1975.”

L.M. v. D.D.F., 840 So.2d 171, 179 (Ala.Civ.App.2002).

“In Alabama, recognition of a common-law marriage requires proof of the following elements: (1) capacity; (2) present, mutual agreement to permanently enter the marriage relationship to the exclusion of all other relationships; and (3) public recognition of the relationship as a marriage and public assumption of marital duties and cohabitation. Stringer [v. Stringer], 689 So.2d [194,] 195 [ (Ala.Civ.App.1997) ], quoting Crosson v. Crosson, 668 So.2d 868, 870 (Ala.Civ.App.1995), citing Boswell v. Boswell, 497 So.2d 479, 480 (Ala.1986). Whether the essential elements of a common-law marriage exist is a question of fact. Stringer, supra, citing Johnson v. John son, 270 Ala. 587, 120 So.2d 739 (1960), and Arrow Trucking Lines v. Robinson, 507 So.2d 1332 (Ala.Civ.App.1987). Whether the parties had the intent, or the mutual assent, to enter the marriage relationship is also a question of fact. See Mickle v. State, 21 So. 66 (1896).”

Gray v. Bush, 835 So.2d 192, 194 (Ala.Civ.App.2001).

Whether the parties had the capacity to enter into a common-law marriage is not at issue. Both parties conceded in the trial court and on appeal that they had the capacity to enter into marriage. The remaining questions are whether the parties had entered into a present, mutual agreement to permanently enter the marriage relationship to the exclusion of all other relationships, whether there was public recognition of the relationship as a marriage, and whether the parties publicly assumed marital duties and cohabited with each other.

According to Holston, in late December 1999, Reese asked her to marry him and she accepted his proposal. Holston stated that Reese gave her an engagement ring. Holston testified that she “said [a] prayer for us to be bound together as husband and wife until the day when he had set up for a wedding, for May 2, 2002. And we was in agreement for that.” Holston stated that they never had the planned wedding ceremony but that they lived together as husband and wife from December 23, 1999, forward. Delmonica Holston Wise, Holston’s daughter, testified that she and her husband were at her grandmother’s house on December 24, 1999, and that, on that date, Holston and Reese arrived at the house and announced that they had married. Wise also stated that Holston was wearing a wedding ring. She further testified that the parties had held themselves out to Holston’s family as husband and wife. Ethleen Jones, Holston’s sister, testified that on December 24, 1999, she had a telephone conversation with Holston, in which Holston told Jones that Holston and Reese had just married. Reese denied that he had given Holston an engagement ring or a wedding ring. He also denied ever asking Holston to marry him. Reese further testified that he had been dating three other women in December 1999.

Both parties testified that they did not have any joint bank accounts, credit cards, loans, or other financial instruments. Additionally, the parties did not purchase any jointly held property — real or personal. Holston testified that she and Reese filed a joint tax return in 2000 but that she had told Reese to stop filing joint returns because she had outstanding student loans and the loan providers had attempted to reach the parties’ tax refund. Holston did not enter the alleged joint tax return into evidence. Holston testified that she and Reese filed separate tax returns from 2001 to the present. Holston further testified that she continued to use Holston as her last name rather than Reese to protect Reese from being liable for her debts. According to Holston, she did obtain a credit card under the name of Kathleen Reese; she stated that her niece had filled out the application for the credit card. Holston stated that she had obtained that card after she had filed her complaint for a divorce.

Reese purchased the property from Hol-ston in February 1999; the property was in foreclosure at the time. After Reese purchased the property, Holston continued to live on the property and agreed to pay Reese $250 per month in rent. According to Holston, the payments were pursuant to an agreement between Holston and Reese for her to pay Reese back for his purchase of the property. Holston testified that she had paid Reese every month until she moved off of the property in 2007. Hol-ston also testified that in 2004 she started helping to pay the electricity bill and the water bill associated with the property. Reese testified that Holston did not pay the agreed-upon rent for any month that she had lived on the property.

According to Holston, in December 1999, the parties started living together as husband and wife in Reese’s home in Wa-verly.' Holston stated that the parties moved from Reese’s home in Waverly in 2001 and began living on the property. Wise testified that she lived on the property in 2000 and paid Holston $250 per month in rent; she stated that Holston was living with Reese in Waverly at that time. In contrast, Reese testified that the parties never lived together in Waverly. He testified that Holston would sometimes spend the night with him in Waverly but that she did not leave any of her belongings in his home. Reese did admit that the parties had lived together on the property; however, he described the relationship as more of a landlord/tenant relationship. According to Reese, he and Holston had separate bedrooms, although he did state that they sometimes had sexual relations.

Reese testified that he sent Holston two eviction notices by certified mail in February 2004. Reese introduced the notices into evidence, along with the receipt from the post office showing that he had sent the notices by certified mail. However, Reese did not include the signature cards showing that Holston had received the notices. Holston denied that she had received the eviction notices. However, Hol-ston did acknowledge that Reese had asked her to leave the property several times.

Holston testified that everyone at her church believed that she and Reese had been ceremonially married. Holston stated that the people in her church believed that she and Reese were married because she had told them so and because her family had told them so. Holston did not state that Reese had represented to anyone at her church that the parties were married. In fact, Holston testified that Reese refused to attend her church. According to Holston, she sometimes attended Reese’s church; however, she stated that the only people at his church who believed that they were married were Reese’s family.

Holston introduced into evidence, over Reese’s objection, two funeral programs that listed her as Kathleen Reese. The first funeral program was for Holston’s mother, who had died in 2001. According to Holston, the program listed the parties as Kathleen and John Reese and stated that the parties were husband and wife. The second funeral program was for Reese’s first cousin, who died in 2008. According to Holston, that program listed Holston as Kathleen Reese.

As we stated above, the existence of a common-law marriage must be shown by clear and convincing evidence. See Lofton, 611 So.2d at 336. We conclude that the evidence presented by Holston is insufficient to show by clear and convincing evidence that the parties’ relationship was publicly recognized as a marriage and that the parties publicly assumed marital duties.

“It is indispensable that the parties must comport themselves in such a manner as to achieve public recognition of their status as common-law man and wife.” Bishop v. Bishop, 57 Ala.App. 619, 622, 330 So.2d 443, 445 (Ala.Civ.App.1976).

We have stated:

“ ‘[T]he marriage relationship may be shown in any way that can be known by others, such as living together as man and wife, referring to each other in the presence of others as being in that relation, declaring the relation in various types of documents and transactions, sharing household duties and expenses, and generally engaging in “all of the numerous aspects of day-to-day mutual existence of married persons.” ’ ”

Hall v. Duster, 727 So.2d 834, 837 (Ala.Civ.App.1999) (quoting Bishop v. Bishop, 57 Ala.App. at 621, 330 So.2d at 445). The fact that the parties may have lived together or cohabited, standing alone, is insufficient to show that the parties had entered into a common-law marriage. See Beck v. Beck, 286 Ala. 692, 698, 246 So.2d 420, 426 (1971) (“[I]n order to constitute a valid common-law marriage, the man and woman, following their mutual consent to live as man and wife, must so live as to gain the recognition of the public that they are living as man and wife rather than in a state of concubinage.”).

In this case, the evidence shows that the parties did not handle their finances in a way that would be consistent with the existence of a marital relationship. The parties had no joint bank accounts, credit cards, or other financial obligations. Additionally, the parties held no jointly owned property. Holston stated that the parties had filed only one joint tax return and had filed separate returns for every other year. It also appears that Holston was paying Reese rent on the property, which is inconsistent with the conduct of people in a marital relationship. The lack of shared finances does not support the trial court’s determination that the parties had a common-law marriage. See Cluxton v. Cluxton, 431 So.2d 1296, 1298 (Ala.Civ.App.1983); Gray v. Bush, 835 So.2d 192, 195 (Ala.Civ.App.2001).

There is also insufficient evidence to show that the parties’ relationship was publicly recognized as a common-law marriage. Although Holston testified that she had told people at her church that she and Reese were married, it is also apparent from the record that Reese did not attend that church with her. Instead, Reese attended a separate church, where, according to Holston, only Reese’s family members believed that he and Holston were married. Holston did not present any testimony from members of her church or other members of the public regarding the existence of a common-law marriage. Similarly, the statements by Wise and Jones only prove that members of Holston’s family believed that Holston and Reese were married. The only other proof of public recognition of the parties’ alleged common-law marriage were the two funeral programs offered by Holston. These two isolated documents, created by family members, are insufficient to “meet the required standard of a persuasive pattern of unambivalent conduct, but rather are too few and isolated.” Bishop, 57 Ala.App. at 622, 330 So.2d at 446.

Because the evidence before the trial court was insufficient to support its determination that the parties had clearly and convincingly entered into a common-law marriage, we reverse the trial court’s judgment insofar as it determined that the parties were married. Consequently, because we hold that the parties were not married, the trial court’s award of the property to Holston is also due to be reversed. We therefore remand the cause with instructions for the trial court to enter a judgment consistent with this opinion.

REVERSED AND REMANDED.

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

BRYAN and MOORE, JJ., concur in the result, without writings.

      . Reese argues on appeal that the trial court erred in admitting the funeral programs into evidence because, he argues, they were not properly authenticated, as required by Rule 901, Ala. R. Evid. Because we conclude that, even considering the funeral programs, the evidence was insufficient to support the existence of a common-law marriage, the trial court's error, if any, in admitting the funeral programs into evidence was harmless. See Dinmark v. Farrier, 510 So.2d 819, 820-21 (Ala.1987).