author: BRYAN, Judge.

text:
    Jeremy Gilbert KIEL v. Laura Frances KIEL.
    2081111.
    Court of Civil Appeals of Alabama.
    June 11, 2010.

      Henri B. McDaniel and Marcus Hel-stowski of McDaniel & McDaniel, L.L.C., Huntsville, for appellant.
    William P. Burgess, Jr., and Rebekah L. Graham of William P. Burgess, Jr., P.C., Huntsville, for appellee.
   BRYAN, Judge.

Jeremy Gilbert Kiel (“the husband”) appeals the judgment divorcing him from Laura Frances Kiel (“the wife”) insofar as it awarded the wife alimony in gross, periodic alimony, an attorney fee, and a private-investigator fee. We affirm.

On January 16, 2008, the wife sued the husband for a divorce on the grounds of incompatibility and adultery committed by the husband. The husband answered the wife’s complaint and counterclaimed for a divorce on the ground of incompatibility. The wife answered the husband’s counterclaim and, subsequently, amended her complaint to state a claim for damages or, in the alternative, alimony in gross, to compensate her for the husband’s alleged misuse of funds the wife had inherited from her parents. Thereafter, the action proceeded to trial. The trial court held a bench trial on January 3, 2009, at which it received evidence ore tenus. On June 26, 2009, the trial court entered a judgment, which contained the following findings of fact:

“The parties were married in Russell-ville, Alabama on January 6, 1996. According to the Wife, the parties met in high school and dated throughout their college studies. Both parties possess college undergraduate degrees. The Wife earned a Masters Degree prior to the marriage. During the entirety of the marriage, the Husband was the primary wage-earner. Following the marriage, the Wife left a high school teaching position prior to securing tenure in order to accompany the Husband to Mississippi where he accepted a position consistent with his engineering education. The Husband later found employment in Madison County and the parties relocated to Alabama. The Husband remained employed with that employer or its predecessor as a maintenance supervisor until his lay off in January of 2009. The Husband is presently drawing severance pay benefits in a sum similar to his earlier base pay although the severance package benefits terminate in September 2009. During trial, the Husband claimed to be making an active job search. He does not suffer from any health conditions that limit his employment and has considerable experience in his field.
“Following the move to Madison County, the Wife sought and secured employment in an administrative position with Virginia College. She left that employment in the latter part of 2000 in anticipation of the birth of the parties’ first child, ... who was born March 23, 2001. Later, on June 2, 2003 and on October 19, 2005 the parties’ [two] remaining children, ... were born. Prior to [the first child’s] birth, the parties agreed the Wife would not work outside the home and that she would serve as the homemaker and stay at home mom to the parties’ three children.
“In 2005, the Wife’s mother, her remaining surviving parent, was killed in an automobile accident. The Wife was the sole survivor of her parents and inherited approximately $300,000, all of which she placed in the parties’ joint savings and checking accounts with Red-stone Federal Credit Union [ CRFCU’) ].[] Although she had access to the family’s banking and credit card records, she testified the Husband was the bill payer and she trusted him to manage the money.
“The Wife testified she considered her marriage to be perfect until the latter part of 2006 or early part of 2007. She stated she loved her husband, her children and their residence. Her concerns at that time were the increasing amount of time the Husband was required to work (frequently 18 hours per day, from 1:00 a.m. until 6:00 p.m.) and her Husband’s increasing indifference toward her and the children. The Husband stated he considered the Wife’s spending on ‘toys for the children, fast food and miscellaneous items,’ all of which he agreed were for the family, to be a problem. He also stated he was concerned about her care of the children and the fact that the younger children often slept with the Wife, ultimately resulting in the Husband relocating to another bedroom.
“Despite these concerns, the Husband continued to manage the parties’ financial affairs even encouraging the Wife to auction the family farm she inherited. The farm was sold in July 2006 and the net proceeds of over $230,000 were deposited to the parties’ joint RFCU savings account. The Husband paid off the family credit cards, made a $150,000 down payment on a $600,000 new home and paid off their automobiles. Due to his stated concern about the Wife’s spending, he placed the Wife on a budget of $1,200 to $1,500 per month. Banking records admitted to evidence by the Husband reveal, on occasion, sums were transferred by him from the RFCU joint account into a separate account for the Wife although, upon further analysis, it is apparent that the transfers to the Wife were actually monies from the joint savings account that was funded, at that time, almost exclusively by funds from the Wife’s inheritance. The Wife testified she terminated gymnastic and dance lessons for [one of the children] in an effort to appease her Husband regarding the alleged financial difficulties. She also met with her minister and his wife and arranged for couples counseling for her and the Husband. Her concerns remained the Husband’s extreme work hours and his increasing distance from her. The Husband refused to participate in the counseling after the first meeting.
“Following the failed counseling effort, the Wife engaged a private investigator. That inquiry revealed that the Husband was involved in a sexual affair with a co-employee. Evidence before the Court, including the Husband’s admission to the affair, testimony of the paramour and financial records, reveal the Husband’s extramarital sexual relationship began no later than the Spring of 2006 and continued at least until the early part of 2008.
“Financial records admitted to evidence revealed at the same time the Husband was complaining about the Wife’s spending for the children, he had purchased jewelry, including a ruby and gold pendant and a one-carat diamond, ring, an expensive Coach purse, a Thomas Kincaid print and flowers on a number of occasions for his girlfriend. He paid for meals at expensive restaurants on overnight, out of town travel with his girlfriend and lodging and limousine service while with her in Atlanta. Family credit cards revealed other purchases of jewelry, meals and items at women’s clothing stores (Ann Taylor, Victoria Secret, etc.) that the Wife did not recognize as purchases by or for her. The Husband stated he was unaware of the charges although a number of charges were on the same dates and same venues as the Husband’s travel with his paramour. Other records and testimony of the Husband confirmed that three weeks prior to the closing of purchase of the $600,000 home (funded by the Wife’s inheritance), the Husband and his girlfriend traveled to Greenville, South Carolina where numerous purchases were incurred on family credit cards. Three weeks following the closing, the Husband purchased the one-carat diamond ring for his paramour and met her in Atlanta, where he charged hotel, restaurant and limousine expenses on family credit cards. All of these expenses were paid from accounts funded primarily by the Wife’s inheritance and were incurred while the Husband withheld or intentionally misled the Wife regarding his marital misconduct. At trial, the Wife testified she would never have allowed the Husband access to her inheritance had he honestly disclosed his affair. Although the Husband admitted to having made ‘poor judgments,’ he made that concession only after he learned of the surveillance and that his affair was discovered. In the words of an elder from his church, the Husband’s primary sorrow was ‘that he had been caught.’ When the Wife filed her complaint for divorce in January 2008 less than one month after learning of the affair, her inheritance had been totally depleted. The Court expressly finds the Husband repeatedly deceived and misled the Wife regarding his affair and his reckless misuse of the parties’ financial accounts.”

Based on those factual findings, the trial court, among other things, divorced the parties on the grounds of incompatibility and adultery committed by the husband; awarded the wife sole physical custody of the parties’ children and awarded the husband visitation; awarded the wife child support in the amount of $1,780 per month; awarded the wife alimony in gross in the amount of $150,000; awarded the wife periodic alimony in the amount of $1,600 per month for 60 months; awarded the wife an attorney fee in the amount of $20,000; awarded the wife a private-investigator fee in the amount of $3,000; awarded the wife COBRA health-insurance benefits to be paid for by the husband if they were available or, if they were not available and the wife secured her own health-insurance coverage, awarded the wife up to $250 per month for 36 months as additional periodic alimony to be applied to the payment of the premiums for that coverage; and divided the parties’ personal property. The trial court awarded the wife the following personal property:

1. the personal property she had owned before the marriage or had inherited or had received by gift during the marriage and her personal effects;
2. the 2005 GMC Yukon automobile;
3. the balance of any banking account in her individual name;
4. one-half of the balance in any banking or financial account in both of the parties’ names;
5. the furniture and furnishings presently in her possession, with exception of the following items awarded to the husband:
a. a patio set,
b. two collector dolls of the wife’s selection, and
c. one television of the wife’s selection;
6. one-half of the vested interest of the husband in the following retirement plans and accounts:
a. Siemen’s-Continental 401 (k) Plan,
b. Continental Pension Plan, and
c. GM Pension Plan; and
7. a $ 1,250 check payable to the parties jointly.

The trial court awarded the husband the following personal property:

1. the personal property he had owned before the marriage or had inherited or had received by gift during the marriage and his personal effects;
2. the 2005 Dodge Ram truck;
3. the balance of any banking account in his individual name;
4. one-half of the balance in any banking or financial account in both of the parties’ names;
5. the furniture and furnishings presently in his possession and the following items in the wife’s possession:
a. a patio set,
b. two collector dolls of the wife’s
selection, and
c. one television of the wife’s selection;
6. one-half of his vested interest in the following retirement accounts:
a. Siemen’s-Continental 401 (k) Plan,
b. Continental Pension Plan, and
c. GM Pension Plan.

The husband timely filed a post-judgment motion challenging the judgment on several grounds. First, citing Ex parte Dickson, 29 So.3d 159 (Ala.2009), the husband asserted that the trial court had erred in awarding the wife alimony in gross in the amount of $150,000 because, he said, that award exceeded the value of his estate at the time of the divorce, which, according to the husband, consisted of the following:

1. Renasant checking account in the amount of $12.78;
2. Listerhill savings account with a value of less than $100.00;
3. one-half of a Siemen’s-Continental 401(k) plan with a value of $21,036.44;
4. one-half of a Continental Pension Plan with a value of $7,454.85; and
5. a Dodge Ram truck with an estimated value of $10,000.00 to $11,000.00.

Second, the husband asserted that the trial court had erred in awarding the wife periodic alimony in the amount of $1,600 per month for 60 months because, he said, the evidence had established that he would not have the financial means to pay it. Specifically, he asserted that he had been laid off from his job at Continental in January 2009, that his severance pay would terminate in September 2009, that he had not been able to find another job, that his net income from his severance pay had been $5,412.82 in March 2009 and $5,261.63 in April 2009, and that his minimum basic living expenses were $1,605.31.

Third, the husband asserted that the trial court had erred in awarding the wife an attorney fee in the amount of $20,000 and a private-investigator fee in the amount of $3,000 because, he said, he did not have the financial means to pay those awards.

In response to the husband’s post-judgment motion, the wife asserted that, as an alternative to her claim for alimony in gross, she had stated a claim for damages due to the husband’s misuse of her inheritance from her parents and that, even if the award of alimony in gross was due to be reduced because it exceeded the husband’s estate at the time of the divorce, she was entitled to recover $150,000 on her claim for damages. The wife also moved the trial court to alter or amend the judgment to award her alimony in gross in an amount equal to the husband’s separate estate at the time of the divorce and to award her the balance of the $150,000 as damages for the husband’s misuse of her inheritance or, in the alternative, to award her $150,000 as damages for the husband’s misuse of her inheritance in lieu of awarding it to her as alimony in gross.

Following a hearing on the parties’ post-judgment motions, the trial court entered an order stating, in pertinent part:

“This matter came on before the Court on motions filed the [husband] and the [wife], each requesting relief pursuant to Rule 59 to the Alabama Rules of Civil Procedure. The Court has considered the pleadings filed by both parties, stipulations of the parties and argument of their respective counsel regarding the post-judgment motions. The Court has also considered the recent decision of the Alabama Supreme Court in [Ex parte Dickson, 29 So.3d 159 (Ala.2009),] regarding the alimony in gross in the Final Decree of Divorce in this matter. Based upon consideration of the above, the Court makes the following findings and orders:
“CONCLUSIONS OF LAW AND FINDINGS OF FACT
“A. Upon consideration of the standards set out in [Ex parte Dickson], supra, the Court expressly finds that the alimony in gross awarded to the [wife] in the case considerably exceeds the value of the [husband’s] estate at the time of the divorce. Accordingly, the parties’ Rule 59 motions on that issue are to due to be granted and that portion of the Final Decree is due to be altered or amended.
“B. Our case law is clear that no fixed standard or mathematical formula exists for dividing properties in a divorce proceeding. The proportion or share of property given to each spouse is required only to be equitable and graduated according to the particular facts and circumstances presented in each case. Antepenko v. Antepenko, 549 So.2d 1357 (Ala.Civ.App.1989). When dividing marital property and determining the need for support, the trial court considers a number of factors, including the length for the marriage, age and health of the parties, future prospects of the parties, the source, type and value of the properties, the standard of living to which the parties have become accustomed during the marriage and the fault of the parties contributing to the breakup of the marriage. Pate v. Guy, 942 So.2d 380 (Ala.Civ.App.2005), Golden v. Golden, 681 So.2d 605 (Ala.Civ.App.1996).
“C. The Final Decree of Divorce in this matter contains a lengthy finding of facts regarding the parties’ conduct toward one another in financial and personal matters. In summary, the Court expressly found that the [husband] ‘repeatedly deceived and misled the [wife] regarding his affair and his reckless misuse of the parties’ financial accounts’ and that this behavior significantly impacted the ‘financial and emotional well-being of the [wife] and the parties’ three children.’ Those findings have not been altered nor are they challenged in any of the pleadings.
“D. During trial, both parties testified at length regarding the assets they acquired diming the marriage and those that remained at time of the hearing. The Court has considered that testimony as well as exhibits admitted to evidence by the parties, including the [husband’s] Domestic Relations Financial Statement in which he listed the values of the properties in his possession and those in the possession of the [wife]. Based upon that review, the Court finds that the [husband’s] valuation of his separate estate, including items of personal property retained in his possession but excluding the one-half of retirement accounts awarded to the Wife, totaled over $84,000.00.
“Based upon the above findings of fact and conclusions of law, considered with the pleadings filed by the parties in this cause, both at trial and in their Rule 59 motions, the Court ORDERS as follows:
“1. Paragraph 17 of the Final Decree [dealing with alimony in gross] is vacated in its entirety and the following is substituted in lieu thereof:
“The Wife is awarded the sum of $65,000.00 as alimony in gross to be paid by the Husband. The Court has considered the Husband’s expenditure of family funds, including, in large measure, the entire inheritance received by the Wife from the estates of her mother and father, during a period of time he deceived and misled the Wife regarding his extra-marital affair and exhibits admitted to evidence, including the [husband’s] Domestic Relations Financial Statement with his inventory of properties and values. Based upon that review, the Court finds that the [husband’s] valuation of his separate estate including items of personal property retained in his possession but excluding the one-half of retirement accounts awarded to the Wife, totaled over $84,000.00.
“The Husband may satisfy this award by payment in full within 30 days of the date of this Order or, at his option, by payment in monthly installments to the Wife as follows:
“(a) Payments of $300 per month so long as the Husband is paying periodic alimony is due to the Wife pursuant to this Order; and, thereafter,
“(b) Upon termination of the periodic alimony payments, payments of $1,000 per month until such time as the judgment is satisfied in full.
“(c) Payments shall begin on the first day of the month immediately following entry of this Order and continue due and payable on the first day of each month thereafter until the judgment is satisfied in full. The [husband’s] obligation shall be reduced by any payments made by him pursuant to the earlier order in this matter.
“3. All remaining claims of the parties, except to the extent awarded herein, are DENIED.”

The husband then timely appealed to this court.

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.” ’ Waltman 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).

Citing Ex parte Dickson, supra, the husband first argues that the award of $65,000 in alimony in gross is erroneous because, he says, it exceeds the value of his estate at the time of the divorce. Specifically, he argues that his estate at the time of the divorce consisted of the following:

a. one-half of the $56,982.59 total value of his retirement accounts, which equals $28,491.29;
b. the $10,050 value of his Dodge Ram truck; and
c. a bedroom suite with a value between $12,000 and $15,000.

Thus, the husband argues that, at most, his estate at the time of the divorce had a value of $53,541.29 and, therefore, that the award of $65,000 in alimony in gross exceeds the value of his estate at the time of the divorce.

However, the husband ignores the document titled “Defendant’s Domestic Relations Financial Statement” (“the financial statement”), which the husband introduced into evidence at trial as Defendant’s Exhibit 15. In the financial statement, which the trial court relied upon in calculating that the husband’s estate at the time of the divorce had a value in excess of $84,000, the husband lists the following values for property he was awarded by the divorce judgment other than the retirement accounts, the Dodge Ram truck, and the bedroom suite:

Denon home theater system $ 2,199.00
Sony camcorder 534.94
Panasonic Flat Screen 32" TV 899.00
paper shredder 39.99
college and sports memorabilia 793.06
Austin sculptures 336.98
furniture 2,252.90
Daniel Moore prints 10,775.00
patio set 499.00
outdoor tools, equipment, and sporting goods 9,926.40
iron and ironing board 129.00
John Deere Precision equipment 3,437.44
$31,822.71

Adding the $31.822.71 value of the items of property listed above to the $53,541.29 value of the retirement accounts, the Dodge Ram truck, and the bedroom suite results in a total value of $85,364 for the husband’s estate at the time of the divorce. Therefore, his argument that the $65,000 award of alimony in gross exceeded the value of his estate at the time of the divorce has no merit. Consequently, we affirm the trial court’s judgment insofar as it awarded the wife alimony in gross in the amount of $65,000.

The husband perfunctorily argues that the trial court erred in awarding the wife an attorney fee in the amount of $20,000 and a private-investigator fee in the amount of $3,000 because, he says, those amounts are excessive; however, he has cited no legal authority in support of this argument. “We have unequivocally stated that it is not the function of this Court to do a party’s legal research or to make and address legal arguments for a party based on undelineated general propositions not supported by sufficient authority or argument. Spradlin v. Spradlin, 601 So.2d 76 (Ala.1992).” Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251 (Ala.1994) Therefore, we find no merit in the husband’s argument that the award of an attorney fee in the amount of $20,000 and the award of a private-investigator fee in the amount of $3,000 were erroneous because they were excessive.

The husband also argues that the trial court erred in awarding the wife an attorney fee in the amount of $20,000 and a private-investigator fee in the amount of $3,000 because, he says, those awards constituted additional alimony in gross under the supreme court’s holding in Ex parte Dickson, supra, and the resulting total of $88,000 in alimony in gross exceeds his estate at the time of the divorce. However, the husband did not present that argument to the trial court. We cannot reverse the trial court’s judgment on the basis of an argument that the husband did not present to the trial court. See Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992) (“This Court cannot consider arguments raised for the first time on appeal; rather, our review is restricted to the evidence and arguments considered by the trial court.”). Accordingly, we affirm the trial court’s judgment insofar as it awarded the wife an attorney fee in the amount of $20,000 and a private-investigator fee in the amount of $8,000.

The husband also argues that the trial court erred in awarding the wife periodic alimony in the amount of $1,600 per month because, he says, the trial court considered only one factor in setting that amount, i.e., the husband’s adultery. We find no merit in that argument because it is apparent from the trial court’s judgment that, in addition to the husband’s adultery, the trial court considered other factors in setting the amount of the husband’s periodic-alimony obligation, such as the 13-year length of the marriage; the fact that the parties had agreed that the husband would work while the wife stayed at home and took care of the children and the household during the marriage; the fact that the husband had misused the wife’s inheritance, which would have provided a source of support for the wife following the divorce if he had not squandered it; the lifestyle the parties had enjoyed during the marriage; and the husband’s greater earning potential.

Finally, the husband argues that the trial court erred in awarding the wife periodic alimony in the amount of $1,600 per month because, he says, that award will financially cripple him because, he says, after he pays child support in the amount of $1,780 per month and periodic alimony in the amount of $1,600 per month, he will be left with only $1,814.69 to pay his basic monthly expenses in the amount of $1,605.31. The husband cites Rubert v. Rubert, 709 So.2d 1283 (Ala.Civ.App.1998), and Wheeles v. Wheeles, 770 So.2d 635 (Ala.Civ.App.2000), in support of this argument. However, those cases are factually distinguishable from the case now before us.

In Rubert, the husband’s net income was approximately $4,300 per month, while his living expenses, not including any amounts he spent on the parties’ 19-year-old mentally ill son, were between $1,800 and $2,000 per month. Including the mentally ill son’s monthly expenses, the husband’s monthly living expenses totaled $2,500 to $2,800 per month. The trial court ordered the husband to pay the wife periodic alimony in the amount of $2,200 per month despite evidence indicating that her living expenses were only $1,800 per month. This court held that the trial court had erred in awarding the wife periodic alimony in the amount of $2,200 per month because that award exceeded the wife’s needs and would leave the husband with only $2,100 per month of his net pay with which to pay $2,500 to $2,800 per month in expenses for himself and the parties’ mentally ill son.

In Wheeles, the husband’s net income, including overtime pay was approximately $3,800 per month. However, he testified that overtime work, which had been plentiful in prior years, was no longer available as often as it had been in prior years. His basic living expenses were $1,627.98 per month. The trial court ordered him to pay child support in the amount of $1,044 per month and periodic alimony in the amount of $1,150 per month. Noting that, even the highest estimate of the husband’s income, i.e., $3,800, which presupposed the availability of overtime work, would leave the husband with only $1,230 to pay periodic alimony after paying his child support in the amount of $1,044 per month and his monthly expenses of $1,628, this court held that the trial court had erred in awarding the wife periodic alimony in the amount of $1,150 per month, which was only $80 less than the balance of the husband’s net income remaining after he paid his monthly child-support obligation and his basic expenses.

In the case now before us, the husband’s net income averaged $5,337.22 per month. His basic living expenses are $1,605.31 per month. The trial court ordered him to pay $1,780 per month in child support and $1,600 per month in periodic alimony. After paying his monthly child-support obligation and his basic monthly expenses, he will be left with a balance of $1,951.91 each month to pay periodic alimony in the amount of $1,600 per month. Thus, he will be left with $351.91 of his net pay each month after paying his monthly child-support obligation, his monthly basic expenses, and the monthly periodic alimony awarded by the trial court. Accordingly, in the case now before us, the financial impact on the husband of the periodic alimony awarded by the trial court is substantially less than it was on the husbands in Rubert and Wheeles. Consequently, we find no error in the trial court’s awarding the wife periodic alimony in the amount of $1,600 per month in the case now before us, and we affirm that aspect of the trial court’s judgment.

The wife’s request for an attorney fee on appeal is denied.

AFFIRMED.

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

      . Part of that $300,000 inheritance was a family farm, which the trial court refers to later in its findings of fact.

      . The parties had stipulated that the wife should be awarded primary physical custody of the children.

      . However, the trial court noted that the calculation of the child support was based on the husband's severance pay, which would terminate in September 2009, and, therefore, that the child support might have to be modified following the termination of his severance pay.

      . While the divorce action was pending, the parties sold the marital residence at a loss in order to relieve themselves of their mortgage payments. They had purchased the marital residence for a price of $602,675.65 in 2006. They sold it for a price of $475,000 in 2008. At closing, the payoff for their first mortgage was $409,333.05, and the payoff for their second mortgage was $60,787.19. In addition, they were responsible for some of the closing costs, such as the real-estate agent's commission. The proceeds from the sale of the marital residence failed to cover $29,610.95 of the amount due from the husband and the wife at closing. Consequently, they had to pay that $29,610.95 out of their pockets.

      . The husband’s estate at the time of the divorce also included one-half of a GM Pension Plan; however, the record does not indicate the value of his share of that pension plan.

      . This figure does not include the two collector dolls or the television awarded the husband because those items were to be selected by the wife and the record does not indicate which collector dolls or television the wife selected.

      . The husband does not argue that any of his other monthly financial obligations should be considered in determining whether the trial court erred in awarding the wife periodic alimony in the amount of $1,600 per month. Because "[i]t is not the function of this court to advocate a position on behalf of an appellant or to create a legal argument for the appellant,” Schiesz v. Schiesz, 941 So.2d 279, 289 (Ala.Civ.App.2006), we will consider only the husband's monthly obligations to pay child support, periodic alimony, and his basic expenses in determining whether the trial court erred in awarding the wife periodic alimony in the amount of $1,600 per month.

      . It was $5,412.82 in March 2009 and $5,261.63 in April 2009. The average of those two amounts is $5,337.22.


source: Caselaw Access Project

author: THOMPSON, Presiding Judge.

license: Public Domain

text:
    D.E.C.C. v. K.N.R.
    2090272.
    Court of Civil Appeals of Alabama.
    June 18, 2010.

      Shannon Mauldin Williams of Dutton & Williams Attorneys at Law, Jasper, for appellant.
    K.N.R., pro se.
   THOMPSON, Presiding Judge.

On October 15, 2008, K.N.R. (“the maternal grandmother”), C.S.E. (“the maternal grandfather”), J.F.E. (“the maternal step-grandmother”), and D.L.R. (“the maternal step-grandfather”) (hereinafter collectively referred to as “the grandparents”) filed a motion in the Walker Juvenile Court seeking an award of custody of J.A.C. and C.B.E. (hereinafter together referred to as “the children”). In that motion, the grandparents alleged that the children’s mother, D.E.C.C. (“the mother”) had endangered the children through her use of an illegal drug and that the mother had voluntarily signed documents transferring custody of the children to the grandparents. The record contains a document signed by the mother transferring custody of the children to the grandparents. On October 16, 2008, the juvenile court entered an order awarding custody of the children to the grandparents.

On December 2, 2008, the mother filed a motion asking the juvenile court to set aside its October 16, 2008, order. In that motion, the mother alleged that the grandparent’ motion seeking an award of custody had not been properly supported by a verified petition as required by § 12-15-50 and § 12-15-52, Ala.Code 1975 (now amended and renumbered as §§ 12-15-120 and -121, Ala.Code 1975).

On January 6, 2009, the juvenile court conducted an ore tenus hearing. The transcript from that hearing is not contained in the record on appeal. On January 12, 2009, the juvenile court entered an order in which it, among other things, ordered that the children be returned to the custody of the mother, awarded the maternal grandmother and the maternal step-grandfather specific visitation, and scheduled the matter for a review hearing. In its January 12, 2009, order, the juvenile court also ordered that the action be corrected to assign separate case numbers for each child. The juvenile court assigned the action pertaining to J.A.C. the number JU-03-540.03 and the action pertaining to C.B.E. the number JU-08-475.01.

The juvenile court conducted a review hearing on April 9, 2009. On April 14, 2009, the juvenile court entered orders in which it, among other things, continued custody with the mother and again set the matter for a review hearing.

In May 2009, the mother moved to suspend the maternal grandmother’s visitation after a dispute regarding visitation arose between those parties, and on May 14, 2009, the juvenile court entered orders requiring the maternal grandmother to make the children available for all extracurricular activities scheduled during her visitation with the children. On June 30, 2009, the children’s guardian ad litem and the mother filed a joint motion seeking to terminate the maternal grandmother’s visitation; in that motion, the guardian ad litem and the mother alleged that the maternal grandmother had again refused to take the children to certain extracurricular activities. On July 10, 2009, the juvenile court entered an order in the action pertaining to J.A.C. suspending the maternal grandmother’s visitation pending a review hearing; a similar order is not contained in the record for case no. JU-08^475.01, the action pertaining to C.B.E.

The juvenile court conducted a final hearing at which it considered the arguments of the parties; no ore tenus testimony was presented. On November 6, 2009, the juvenile court entered judgments in which it awarded custody of the children to the mother; in those judgments, the juvenile court also awarded the maternal grandmother certain visitation with the children. The mother filed a post-judgment motion in each case in which she, among other things, requested that the juvenile court conduct a hearing on the motions. The mother’s postjudgment motions were denied by operation of law pursuant to Rule 59.1, Ala. R. Civ. P. See also Rule 1(B), Ala. R. Juv. P. (shortening the time a postjudgment motion may remain pending in a juvenile action to 14 days). The mother timely appealed.

The mother argues that the juvenile court lacked the authority to award visitation to the maternal grandmother. She relies on K.R.D. v. E.D., 622 So.2d 398 (Ala.Civ.App.1993), and J.D.R. v. M.M.E., 898 So.2d 783 (Ala.Civ.App.2004), in support of her argument.

In K.R.D. v. E.D., supra, the grandmother sought an award of visitation with the child as an alternative to her claim alleging that the child was dependent. The juvenile court dismissed the grandmother’s dependency claim but granted her alternative claim seeking an award of grandparent visitation. This court affirmed, holding that a juvenile court considering an allegation of dependency had jurisdiction over a claim seeking grandparent visitation when that claim was asserted as part of a dependency action.

In J.D.R. v. M.M.E., supra, the juvenile court denied the grandmother’s petition alleging the dependency of the child, and, several months later, the grandmother initiated another, separate action in which she sought an award of visitation with the child. This court held the juvenile court lacked jurisdiction to enter its order granting the grandmother visitation “when no proceedings concerning the child were pending in the juvenile court.” J.D.R. v. M.M.E., 898 So.2d at 786. This court held that the juvenile court lacked jurisdiction, under the facts of that case, to entertain an original action seeking grandparent visitation pursuant to § 30-3-4.1, Ala.Code 1975. In reaching that holding, this court distinguished the facts of the case from those of K.R.D. v. E.D., supra, by noting that the grandmother had not sought an award of visitation as a part of the earlier dependency action and that her request for visitation was an original action. Thus, the child at issue in that case was not “otherwise before the court” so as to confer jurisdiction in the juvenile court to consider the issues of custody or visitation.

In this case, the juvenile court’s November 6, 2009, judgment returned custody to the mother with no further review scheduled by the court. Thus, that judgment “not only terminated the dependency proceedings, but also constituted a determination on the allegations of circumstances” that led to the dependency action, which, given the facts of this case, were the sole basis under which the juvenile court could exercise jurisdiction. C.D.S. v. K.S.S., 963 So.2d 125, 130 (Ala.Civ.App.2007). After resolving the issue of dependency in favor of the mother, the juvenile court lacked jurisdiction to rule on issues of visitation, absent a specific claim for grandparent visitation. Id.; see also T.B. v. T.H., 30 So.3d 429, 432 (Ala.Civ.App.2009) (“Once the juvenile court decided that the case would not be decided on dependency principles, the juvenile court had no jurisdictional basis for determining custody of the child.”). A judgment entered without jurisdiction is void, and a void judgment will not support an appeal. Jones v. Sears Roebuck & Co., 342 So.2d 16, 17 (Ala.1977). Accordingly, we dismiss the mother’s appeal and instruct the juvenile court to vacate that part of its November 6, 2009, judgment awarding visitation to the maternal grandmother. Claridy v. Claridy, 43 So.3d 626, 628 (Ala.Civ.App. 2010); Raybon v. Hall, 17 So.3d 673, 675 (Ala.Civ.App.2009).

APPEAL DISMISSED.

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

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

      . Although the parties have not addressed this issue, we note that the juvenile court had jurisdiction over this action. In its orders in this matter, the juvenile court did not make any specific findings of dependency. However, the allegations in the grandparents' complaint were sufficient to invoke the dependency jurisdiction of the juvenile court. See J.W. v. N.K.M., 999 So.2d 526 (Ala.Civ.App.2008) (the allegations in the complaint were sufficient for a finding of dependency); and L.L.M. v. S.F., 919 So.2d 307, 309-10 (Ala.Civ.App.2005) ("The alleged facts were sufficient to invoke the jurisdiction of the juvenile court. Therefore, we conclude that the juvenile court properly exercised jurisdiction in this case.” (footnote omitted)). The record demonstrates that the juvenile court and the parties have considered this to be a dependency action. Further, a dependency finding may be implicit in a juvenile court’s order or judgment. See M.B. v. R.P., 3 So.3d 237, 246 (Ala.Civ.App.2008), and cases cited therein.

      . The judgment entered in case no. JU-03-540.03 contained references to both C.B.E. and J.A.C. Accordingly, this court reinvested the juvenile court with jurisdiction to enter a judgment clarifying its intention. On May 7, 2010, the juvenile court entered an order specifying that the order in case no. JU-03-540.03 pertains only to J.A.C.


author: THOMAS, Judge.

text:
    Garry Lynn STEPHENS v. James G. HARRIS.
    2090451.
    Court of Civil Appeals of Alabama.
    June 18, 2010.

      William R. Lancaster and Latisha D. Rhodes of Alford, Clausen & McDonald, LLC, Mobile, for appellant.
    J. Byron Brackin III of Braekin, McGriff & Johnson, P.C., Foley, for appel-lee.
   THOMAS, Judge.

Garry Lynn Stephens appeals from a summary judgment of the Baldwin Circuit Court determining that no genuine issue of material fact existed as to whether James Harris violated § 3-1-5, Ala.Code 1975.

Facts and Procedural History

Stephens was driving his motorcycle when he collided with a dog. The dog was chasing a car on the left side of the road when it ran in front of Stephens. Stephens was thrown from the motorcycle and slid down the roadway. The dog was killed and Stephens sustained injuries in the collision. Harris arrived at the scene and removed the dog from the roadway. Harris told the state trooper on the scene that the dog belonged to him.

Stephens sued Harris and his ex-wife, Carolyn Harris, alleging that the Harrises were negligent and wanton for allowing the dog to roam away from their property in violation of § 3-1-5. Harris filed a motion for a summary judgment, claiming that he was not negligent because Carolyn owned the dog. The trial court entered a summary judgment in favor of Harris. Stephens appealed to our supreme court, which transferred this case to this court pursuant to § 12-2-7(6), Ala.Code 1975.

Issues

Stephens presents one issue on appeal: whether there is a genuine issue of material fact as to whether Harris owned or had charge of the dog at the time of the accident.

Standard of Review

‘We apply the same standard of review the trial court used in determining whether the evidence presented to the trial court created a genuine issue of material fact. Once a party moving for a summary judgment establishes that no genuine issue of material fact exists, the burden shifts to the non-movant to present substantial evidence creating a genuine issue of material fact. “Substantial evidence” is “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” In reviewing a summary judgment, we view the evidence in the light most favorable to the nonmovant and entertain such reasonable inferences as the jury would have been free to draw.’ ”

American Liberty Ins. Co. v. AmSouth Bank, 825 So.2d 786, 790 (Ala.2002) (quoting Nationwide Prop. & Cas. Ins. Co. v. DPF Architects, P.C., 792 So.2d 369, 372 (Ala.2000)).

Analysis

In his motion for a summary judgment, Harris contended that he did not owe Stephens a duty upon which a claim of negligence or wantonness could be based. Stephens argues that Harris violated § 3-1-5, which gives rise to a duty to confíne one’s dog to one’s premises, and is negligent per se. Thus, we first look to the standard for negligence per se and then to whether Harris violated § 3-1-5. The standard for negligence per se is set forth in Proctor:

‘Violation of statutes or ordinances may be negligence. Vines v. Plantation Motor Lodge, 336 So.2d 1338 (Ala.1976). If the statute or ordinance violated was enacted or promulgated for the protection of the person claiming to have been injured by reason of the violation, the violation of the statute may be negligence per se or negligence as a matter of law. Allman v. Beam, 272 Ala. 110, 130 So.2d 194 (1961).’ ”

Proctor v. Classic Auto., Inc., 20 So.3d 1281, 1287 (Ala.Civ.App.2009)(quoting Keeton v. Fayette County, 558 So.2d 884, 887 (Ala.1989)). Section 3-1-5 provides, in pertinent part:

“(a) Every person owning or having in charge any dog or dogs shall at all times confine such dog or dogs to the limits of his own premises or the premises on which such dog or dogs is or are regularly kept. Nothing in this section shall prevent the owner of any dog or dogs or other person or persons having such dog or dogs in his or their charge from allowing such dog or dogs to accompany such owner or other person or persons elsewhere than on the premises on which such dog or dogs is or are regularly kept. Any person violating this section shall be guilty of a misdemeanor and shall be fined not less than $2.00 nor more than $50.00.”

A review of the evidence in the record discloses a genuine issue of material fact as to whether Harris owned the dog or had charge of the dog at the time of the accident. Harris both admitted and denied he owned the dog. In his deposition, Harris admitted that he had told the state trooper “that’s my dog.” Harris contends that this statement to the state trooper was false. Harris explained in his deposition that Carolyn was about to take a test and that Harris did not want to tell her the dog was dead.

Harris points to other evidence contained in the record to support his argument that the evidence presented was insufficient to overcome his motion for a summary judgment. Harris points to the divorce agreement stating that his ex-wife, Carolyn, was awarded “all assets presently titled in her name.” Harris further relies on veterinary records, which list Carolyn as the owner of the dog. Taken together, Harris argues, those documents establish that the dog was an asset titled in Carolyn’s name.

Viewing the evidence in the light most favorable to Stephens, however, a reasonable juror could place more emphasis on Harris’s admission of ownership, instead of a convenient explanation and denial, and infer that Harris owned the dog. The veterinary records do not necessarily negate the statement Harris made at the scene of the accident. Thus, a genuine issue of material fact exists as to whether Harris owned the dog.

Evidence creating a genuine issue of material fact also exists as to whether Harris was in charge of the dog at the time of the accident. Harris’s deposition testimony indicates that he undertook responsibilities regarding the dog. Harris regularly fed the dog and paid for its food. Harris’s children cared for the dog, under his direction. Similar facts have been used to evaluate whether a property owner is considered the keeper of a dog. See Humphries v. Rice, 600 So.2d 975, 977 (Ala.1992) (finding that a property owner who did not take any responsibilities with regard to the dog could not be considered a keeper of the dog). Furthermore, courts in other jurisdictions have taken a similar approach in defining a dog keeper. See Stroman v. United States, 905 A.2d 194, 195 (D.C.2006) (“[ajppellant’s admissions to the police [that she owned the dog] and her possession of the dog crate, located in the center of her living room, and dog food suffice[d] to show ‘custody ”).

Under the rationale of Humphries, jurors would be free to evaluate the evidence presented to determine whether Harris was in charge of the dog at the time of the accident. The evidence that Harris kept the dog on his property and that he purchased the dog food and regularly fed the dog must be viewed in the light most favorable Stephens. So viewed, a reasonable juror could evaluate the evidence and infer that Harris was in charge of the dog.

There are genuine issues of material fact as to whether Harris owned the dog and as to whether Harris had charge of the dog. Thus, a jury could infer that Hams owed Stephens a duty under § 3-1-5. Therefore, the question whether Harris violated that duty and was negligent per se is a question of fact appropriate for a jury.

Stephens also alleged that Harris was wanton by not keeping the dog on his premises. “ ‘To establish wantonness, the plaintiff must prove that the defendant, with reckless indifference to the consequences, consciously and intentionally did some wrongful act or omitted some known duty.’ ” Proctor, 20 So.3d at 1287 (quoting Martin v. Arnold, 643 So.2d 564, 567 (Ala.1994)). Hands argued in his motion for a summary judgment only that he owed no duty to Stephens. Because we have concluded that a genuine issue of material fact exists regarding whether Harris owned or was in charge of the dog, and thus whether Harris owed a duty to Stephens, we reverse the summary judgment in favor of Harris on Stephens’s wantonness claim as well.

Conclusion

Because a genuine issue of material fact exists as to whether Harris was in charge of or owned the dog, the summary judgment is due to be reversed.

REVERSED AND REMANDED.

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

THOMPSON, P.J., concurs in the result, without writing.

      . In the trial court, Carolyn filed a motion to stay the action pending the resolution her bankruptcy proceeding, which was granted. However, the summary judgment as it pertains to James Harris was made final pursuant to Rule 54(b), Ala. R. Civ. P.


author: MOORE, Judge.

text:
    R.G. and S.G. v. B.J.C., Jr.
    2090137.
    Court of Civil Appeals of Alabama.
    June 18, 2010.

      Theresa S. Dean, Opelika, for appellants.
    Margaret Y. Brown, Auburn, for appel-lee.
   MOORE, Judge.

R.G. and S.G., the maternal grandparents of C.L.G. (“the child”), appeal from a judgment of the Lee Juvenile Court (“the juvenile court”) awarding custody of the child to B.J.C., Jr. (“the father”). We dismiss the appeal for lack of jurisdiction.

On March 19, 2009, the maternal grandparents filed a petition alleging dependency and seeking custody of the child. The maternal grandparents asserted that the paternity of the child had been adjudicated and that the father had been paying child support to W.L.G. (“the mother”). The maternal grandparents asserted that the child was dependent because “she is without parents willing and able to discharge their duties as parents.” The maternal grandparents further asserted that the child had lived with them since she was less than one year old; that they have provided for virtually all the child’s physical, emotional, and financial needs; that the mother had not contributed on a regular basis to the child’s material or physical needs; and that the mother had not maintained stable housing or employment and could not meet the needs of the child without the physical and financial assistance of the maternal grandparents.

On April 14, 2009, the father filed an answer and a counterpetition. The father alleged that his paternity of the child had been established and that he had exercised regular visitation with the child and had paid child support to the mother. The father also asserted that he was fit to exercise the care, custody, and control of the child; that he had married and has other children; and that he was able to provide for the needs of the child. The father denied that the child was dependent. He further asserted that “from time to time” the mother and the maternal grandparents had failed to allow the father visitation with the child. The father requested custody of the child and an award of child support.

On June 26, 2009, the juvenile court entered a pendente lite order determining that the child was dependent, ordering that legal custody of the child remain with the mother at the mother’s residence, and ordering alternating week-to-week visitation between the father and the mother and the maternal grandparents. The juvenile court reserved the right to order child support in the future, and it set a final hearing date for August 31, 2009.

After a hearing on August 31, 2009, the juvenile court entered a judgment on the case-action-summary sheet in which it determined that the maternal grandparents had failed to establish dependency by clear and convincing evidence and that the juvenile court lacked jurisdiction to make an award of custody pursuant to the father’s counterpetition. The juvenile court proceeded to dismiss the father’s counterpetition and ordered that the June 26, 2009, pendente lite order shall remain in full force and effect.

On its own motion, the juvenile court filed an amended judgment on September 1, 2009, replacing the judgment the court had issued at the conclusion of the hearing. In its amended judgment, the juvenile court stated that the father’s counterpetition had presented a custody dispute, that the parties had argued the issue of custody, and that the father had met the burden required for a modification of custody. The juvenile-court judge then stated that he was sitting as a circuit-court judge in regard to the father’s counterpetition, and he proceeded to, among other things, award custody of the child to the father.

On September 15, 2009, the maternal grandparents filed a “motion for rehearing.” The trial court purported to deny that motion on October 6, 2009; however, the maternal grandparents’ motion had been denied by operation of law on September 29, 2009. See Rule 1(B), Ala. R. Juv. P. The maternal grandparents filed their notice of appeal to this court on November 2, 2009.

Although the parties have failed to address this issue, we conclude that we do not have jurisdiction to address the maternal grandparents’ appeal. “ ‘Matters of jurisdiction are of such importance that a court may consider them ex mero motu.’” Nelson v. Nelson, 10 So.3d 603, 605 (Ala.Civ.App.2008) (quoting Trousdale v. Tubbs, 929 So.2d 1020, 1022 (Ala.Civ.App.2005)). As stated above, the maternal grandparents’ “motion for rehearing” was denied by operation of law on September 29, 2009. The maternal grandparents had 14 days, or until October 13, 2009, to appeal the denial of their “motion for rehearing.” Rule 4(a)(1)(E), Ala. R.App. P. The maternal grandparents did not file their notice of appeal to this court until November 2, 2009, and, thus, that notice of appeal was not timely filed. Because the maternal grandparents’ notice of appeal was untimely filed, this court lacks jurisdiction; therefore, the appeal is dismissed. See Rule 2(a)(1), Ala. R.App. P.

APPEAL DISMISSED.

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

THOMPSON, P. J., concurs in the result, without writing.

      . We note that if the maternal grandparents' motion for a rehearing had been filed in response to a judgment of the circuit court, it would not have been denied by operation of law after 14 days. Although the juvenile-court judge purported to act as a circuit-court judge in awarding custody of the child in response to the father’s counterpetition, neither parly had invoked the jurisdiction of the circuit court, and the amended judgment was entered under the juvenile case number. We note also that the juvenile court was without jurisdiction to make a custody award once it determined that the child’s dependency had not been established, and, thus, the court’s September 1, 2009, amended judgment, as well as any other orders entered after the court determined the child’s dependency had not been established, are void. See T.B. v. T.H., 30 So.3d 429 (Ala.Civ.App.2009), and C.D.S. v. K.S.S., 963 So.2d 125 (Ala.Civ.App.2007). As a result, the procedural rules for the juvenile court still applied and, therefore, the maternal grandparents’ postjudgment motion was deemed denied on September 29, 2009, and their time for filing an appeal began to run on that date.


text:
    John WHEELER, Jr. v. James BICE.
    2081180.
    Court of Civil Appeals of Alabama.
    June 18, 2010.
    Bryan G. Duhé, Mobile, for appellant.
    Jason D. Miller and Stewart L. Howard of Howard and Owens, Mobile, for appel-lee.
   BRYAN, Judge.

John Wheeler, Jr., the plaintiff below, appeals from a partial summary judgment in favor of James Bice, one of the defendants below. We dismiss the appeal.

In March 2007, Wheeler and Bice engaged in a business transaction involving a house on Lott Road in Chunchula that was owned by Bice (“the house”); however, Wheeler and Bice disagree regarding the terms they agreed to in that transaction. Wheeler, who says that he negotiated the terms of the transaction with Melton Ever-itte (“Melton”) instead of Bice, asserts that he contracted to buy the house for a total price of $160,000 and that he and Melton agreed that he would pay $5,000 down, that he would pay $1,000 per month from April 2007 through December 2007, and that he would be given a credit against the $160,000 purchase price for those payments. Bice asserts that Wheeler contracted to lease the house for the nine-month period from April 2007 through December 2007 for a total rent of $14,000 to be paid as a $5,000 down payment and monthly installments of $1,000 from April 2007 through December 2007. Bice also asserts that the terms of his agreement with Wheeler are contained in a written residential lease that Wheeler signed; however, neither Bice nor anyone acting on his behalf signed the residential lease.

Wheeler and Bice agree that Wheeler did some work on the house in April and May 2007; however, they disagree regarding whether Wheeler was renovating or altering the house and whether Wheeler had the right to do the work. Wheeler asserts that the house had to be renovated because it was in poor condition and that he had a right to do the work because, he says, he was the purchaser of the house. Wheeler further asserts that he spent $32,000 on the renovation work and that he is entitled to be compensated for that expenditure. Bice, on the other hand, asserts that the house did not need renovation and that the work effected alterations to the house that were of poor quality. Bice further asserts that Wheeler did not have the right to make the alterations because, Bice says, the residential lease prohibited Wheeler from making alterations to the house without Bice’s consent and Bice did not consent to the alterations. Bice also asserts that, because the alterations are of poor quality, he will incur the expense of restoring the house to its original condition and he is entitled to compensation for that expense.

Wheeler claims that, in May 2007, Bice wrongfully ordered him to leave the house and changed the locks to deprive him of access to the house; Bice claims that Wheeler failed to pay the rent due under the residential lease and that, in May 2007, Wheeler voluntarily abandoned possession of the house.

Finally, Wheeler claims that Bice, through Melton, misrepresented that he would sell the house to Wheeler, while Bice claims that Wheeler misrepresented to Melton that he would abide by the terms of the residential lease.

On January 15, 2008, Wheeler sued Bice, Melton, and Melton’s wife, Valerie Everitte (“Valerie”). Wheeler alleged that he had negotiated with Melton concerning a contract to purchase the house (“the alleged purchase contract”) before he entered into the alleged purchase contract in March 2007. He further alleged that he had been induced to enter into the alleged purchase contract by the defendants’ misrepresentations that they would sell him the house; that the defendants breached the alleged purchase contract by failing to sell him the house and by depriving him of possession of the house; and that he has suffered mental anguish, the loss of the money he had paid for the house, and the loss of the $32,000 he had spent on the renovation work. Based on those allegations, he stated claims of unjust enrichment, breach of contract, fraud, conversion, failure to deliver possession, and unlawful ouster. In addition, he included a prayer for damages for mental anguish as though it constituted a separate claim rather than an element of damages.

Answering, Bice, Melton, and Valerie denied liability. In addition, Bice asserted a counterclaim against Wheeler. In his counterclaim, Bice alleged that Wheeler had entered into a contract to lease the house (“the alleged lease contract”), that Wheeler had falsely represented that he would abide by the terms of the alleged lease contract, that the alleged lease contract prohibited Wheeler from altering the house without Bice’s consent, that Wheeler had made alterations to the house without Bice’s consent, that the alterations were of poor quality and that the house would have to be restored to its original condition, that Bice would incur expenses in restoring the house to its original condition, that the alleged lease contract prohibited Wheeler from vacating the house before the expiration of its term, and that Wheeler had breached the alleged lease contract by vacating the house before the expiration of its term. Based on those factual allegations, Bice asserted claims of breach of contract, fraud, negligence, and wantonness.

On October 24, 2008, Bice moved for a partial summary judgment with respect to Wheeler’s claims of unjust enrichment, fraud, breach of contract, and failure to deliver possession. With respect to Wheeler’s claim of unjust enrichment, Bice asserted that, if the transaction between him and Wheeler constituted a lease contract, he was entitled to a summary judgment because, he said, the courts have held that the theory of unjust enrichment does not apply to improvements on leased land made by a lessee. Moreover, he asserted that, if the transaction between him and Wheeler constituted a purchase contract, he was entitled to a summary judgment because, he said, Wheeler could not establish that Bice knowingly accepted the benefit of the alleged improvements to the house or that Wheeler had a reasonable expectation to be compensated by Bice for renovating a house that Bice had allegedly contracted to sell him.

With respect to Wheeler’s breach-of-contract claim, Bice asserted that he was entitled to a summary judgment because, he said, the alleged purchase contract was barred by the Statute of Frauds because, he said, no written purchase contract existed and because, he said, Wheeler had taken possession of the house as a lessee, which, according to Bice, disqualified Wheeler from asserting the partial-performance exception to the Statute of Frauds.

With respect to Wheeler’s fraud claim, Bice asserted that he was entitled to a summary judgment because, he said, Wheeler could not establish two essential elements of that claim. First, Bice asserted that Wheeler’s fraud claim was based on an alleged promise by Bice to sell the house to Wheeler; that, in order for such a promise to constitute actionable fraud, Wheeler would have to prove the elements of promissory fraud; and that Wheeler could not prove that, at the time Bice allegedly made that promise, he intended not to sell the house to Wheeler. Second, Bice asserted that Wheeler could not prove the element of reasonable reliance because, Bice said, Wheeler had been provided with documents indicating that Bice was leasing the house to Wheeler at the time Bice allegedly promised to sell the house to Wheeler.

With respect to Wheeler’s claim of failure to deliver possession of the house, Bice asserted that he was entitled to a summary judgment because, he said, the undisputed evidence established that possession of the house had been delivered to Wheeler.

Wheeler filed a brief in opposition to Bice’s partial-summary-judgment motion. Following a hearing, the trial court, on March 10, 2009, entered an order granting Bice’s motion for a partial summary judgment.

On May 19, 2009, pursuant to a stipulation filed by the parties, the trial court dismissed the claims against Valerie without prejudice. On June 29, 2009, Wheeler moved the trial court to certify its March 10, 2009, order granting Bice’s partial-summary-judgment motion as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P. On July 22, 2009, the trial court granted that motion and certified its March 10, 2009, order as a final judgment pursuant to Rule 54(b). On August 28, 2009, Wheeler appealed to the supreme court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

As a threshold matter, Bice argues that the trial court’s certification of its order granting Bice’s partial-summary-judgment motion as a final judgment was improper because, he says, Wheeler stated the same claims against both Bice and Melton, the claims with respect to which the trial court granted Bice’s partial-summary-judgment motion are still pending against Melton in the trial court, and, therefore, separate adjudications of those claims would pose an unreasonable risk of inconsistent results. Moreover, Bice argues that the issue whether the transaction between Bice and Wheeler constituted a purchase contract or a lease contract is common to some of the claims with respect to which the trial court granted Bice’s summary-judgment motion and some of Bice’s counterclaims against Wheeler, which are still pending in the trial court. Consequently, Bice says, separate adjudications of some of the claims with respect to which the trial court granted his partial-summary-judgment motion and some of his counterclaims would pose an unreasonable risk of inconsistent results. We agree.

In Schlarb v. Lee, 955 So.2d 418 (Ala.2006), the supreme court stated:

“This Court looks with some disfavor upon certifications under Rule 54(b).
“ ‘It bears repeating, here, that “ ‘[certifications under Rule 54(b) should be entered only in exceptional cases and should not be entered routinely.’ ” State v. Lawhorn, 830 So.2d 720, 725 (Ala.2002) (quoting Baker v. Bennett, 644 So.2d 901, 903 (Ala.1994), citing in turn Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1373 (Ala.1987)). “ ‘ “Appellate review in a piecemeal fashion is not favored.” ’ ” Goldome Credit Corp. [v. Player, 869 So.2d 1146, 1148 (Ala.Civ.App.2003) ] (quoting Harper Sales Co. v. Brown, Stagner, Richardson, Inc., 742 So.2d 190, 192 (Ala.Civ.App.1999), quoting in turn Brown v. Whitaker Contracting Corp., 681 So.2d 226, 229 (Ala.Civ.App.1996)) (emphasis added).’
“Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So.2d 354, 363 (Ala.2004). Also, a Rule 54(b) certification should not be entered if the issues in the claim being certified and a claim that will remain pending in the trial court ‘ “are so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results.” ’ Clarke-Mobile Counties Gas Dist. v. Prior Energy Corp., 834 So.2d 88, 95 (Ala.2002) (quoting Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1373, 1374 (Ala.1987)).”

955 So.2d at 419-20. See also Howard v. Allstate Ins. Co., 9 So.3d 1213, 1215 (Ala.2008).

We hold that the trial court exceeded its discretion in certifying its order granting Bice’s partial-summary-judgment motion as a final judgment because issues related to those claims are so intertwined with issues related to claims and counterclaims that remain pending before the trial court that separate adjudications would pose an unreasonable risk of inconsistent results. See Schlarb v. Lee, supra, and Howard v. Allstate Ins. Co., supra. A nonfinal judgment will not support an appeal. Id. Therefore, we dismiss Wheeler’s appeal as being from a nonfinal judgment.

APPEAL DISMISSED.

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

      . The Statute of Frauds is codified as § 8-9-2, Ala.Code 1975. The partial-performance exception is contained in § 8 — 9—2(5).