author: ROBERTS, J.,

text:
    Roger OLIVE, Appellant v. Robert A. MALOUF, Appellee.
    No. 2010-CA-01996-COA.
    Court of Appeals of Mississippi.
    July 24, 2012.

      James E. Smith Jr., Carthage, attorney for appellant. .
    Robert A. Malouf, attorney for appellee.
    Before LEE, C.J., ISHEE, ROBERTS, and FAIR, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. Roger Olive appeals the Madison County Chancery Court’s decision to deny his motion to set aside a default judgment in favor of Robert A. Malouf. Malouf sued Olive and others to enforce a contract to purchase real property and set aside a deed. Malouf had entered a written agreement with Olive’s predecessors in- title to purchase approximately forty-six acres of property in Madison County, Mississippi. Despite having entered a written agreement with Malouf, prior to Malouf s anticipated closing date, Olive’s predecessors in title sold the property at issue to Olive for considerably less than Malouf had agreed to pay. Malouf sued Olive and Olive’s predecessors in title. Olive was served with process, but he never filed an answer. Malouf wrote a letter to Olive and informed him that Olive’s failure to respond would result in a default judgment. When Olive did not respond, Mai-ouf applied for a default judgment. The chancellor subsequently heard Maloufs claim for relief. The chancellor set aside the deed to Olive and awarded Malouf the title to the property. Olive then attempted to set aside the judgment by filing a motion under Rule 60(b) of the Mississippi Rules of Civil Procedure. Despite Olive’s argument that he received insufficient service of process, the chancellor denied Olive’s motion. Aggrieved, Olive appeals. Finding no error, we affirm. .

FACTS AND PROCEDURAL HISTORY

¶ 2. In 2007, Malouf bought a tract of land in Madison County, Mississippi. Several weeks later, a real-estate agent approached Malouf regarding the potential acquisition of an adjoining tract of approximately forty-six acres. That forty-six-acre tract is the subject of this litigation.

¶ 3. On May 2, 2007, Malouf entered a written agreement to buy the property at issue from Juanita N. Taylor, Gwendolyn Gilner, and Myrtis Shine for $77,400. Afterward, Malouf repeatedly but unsuccessfully tried to contact Taylor, Gilner, and Shine. On August 15, 2007, Malouf wrote to Taylor, Gilner, and Shine in an effort to close on the property. Malouf received no response. Malouf wrote to them again on September 5, 2007. To induce Taylor, Gil-ner, and Shine to close, Malouf offered to pay them an additional $100 per acre. Two days later, Taylor, Gilner, and Shine responded by letter and told Malouf: “[W]e do not want to sell the property.” Taylor, Gilner, and Shine also claimed that their agreement had expired.

¶ 4. On September 12, 2007, Taylor, Gil-ner, and Shine sent another letter to Mal-ouf. Within that letter, they said, “[w]e are sorry to inform you that the property in question has been sold to another member of the family. We no longer hold title to the property.” Malouf later discovered that Taylor, Gilner, and Shine had conveyed the property to Olive on June 21, 2007, for $10,000. Malouf sued Taylor, Gilner, Shine, and Olive seeking to enforce his agreement with them. Additionally, Malouf sought injunctive relief to prevent further devaluation of the property because Olive had removed the timber from it. Finally, Malouf sought a judgment vesting him with title and setting aside Taylor, Gilner, and Shine’s conveyance to Olive.

¶ 5. Malouf served Olive on October 29, 2007. Olive was served with summonses under Rule 4 and Rule 81 of the Mississippi Rules of Civil Procedure because Malouf sought a preliminary injunction. The summonses that Olive received instructed him to appear before the chancellor on October 30, 2007. Olive appeared on that date and met with the chancellor in Maloufs presence. The chancellor advised Olive to hire an attorney. When Olive failed to answer Maloufs complaint, Malouf wrote to Olive and advised him that he would seek a default judgment if Olive failed to answer. Regardless, Olive never filed an answer.

¶ 6. Malouf moved for a default judgment. The chancellor heard Maloufs request for relief and granted a judgment in Maloufs favor. The chancellor set aside the conveyance to Olive and awarded Mal-ouf the property at issue. Later, Olive moved to set aside the chancellor’s judgment under Rule 60(b). The chancellor found no merit to Olive’s motion. Aggrieved, Olive appeals.

STANDARD OF REVIEW

¶ 7. We will affirm the chancellor’s decision whether to set aside a default judgment unless we find that he abused his discretion. Leach v. Shelter Ins. Co., 909 So.2d 1283, 1285 (¶ 6) (Miss.Ct.App.2005) (citations omitted). “This standard implies that a trial judge has a limited right to be wrong.” Id. Although the chancellor has “considerable discretion,” it is “neither unfettered nor ... boundless.” Id. at 1286 (¶ 6) (citation and internal quotations omitted).

ANALYSIS

¶ 8. Olive claims the chancellor erred when he denied Olive’s motion to set aside the judgment for Malouf. Olive did not overtly specify the basis of his Rule 60(b) motion, but because Olive argued that the judgment was void because Mal-ouf did not properly serve him with process, it is apparent that Olive traveled under Rule 60(b)(4). In any event, when a party fails to answer, and a trial court enters a default judgment, the circumstances that allow that default judgment to be set aside are clear. “For good cause shown, [the circuit] court may set aside an entry of default and, if a judgment by default has been entered, [the circuit court] may likewise set it aside in accordance with Rule 60(b).” M.R.C.P. 55(c). “To determine whether to grant relief according to Rule 60(b), we apply a three-pronged balancing test.” Am. States Ins. Co. v. Rogillio, 10 So.3d 463, 467 (¶ 10) (Miss.2009). That test mandates weighing the following factors: (1) the nature and legitimacy of a defendant’s reasons for default (i.e., whether a defendant has good cause for default), (2) whether the defendant has a colorable defense to the merits of the claim, and (3) the nature and extent of prejudice that a plaintiff would suffer if default is set aside. Id.

Prong One: The Reason for Olive’s Default

¶ 9. Olive claimed that he did not answer Maloufs complaint because the summonses did not identify the name of Maloufs attorney. However, the documents served upon Olive actually identified Maloufs attorney by name and address. Olive appeared on the noticed date. Olive met Maloufs attorney during the conference with the chancellor.

¶ 10. Other than his driver’s license, Olive did not offer any proof to support his Rule 60(b) motion. He did not explain his failure to file an answer. Approximately two months before Malouf moved for a default judgment, he wrote to Olive at the same address in Olive’s summonses. Within that letter, Malouf cautioned Olive regarding the consequences if Olive failed to answer.

¶ 11. The Mississippi Supreme Court has declined to set aside a default judgment where “[n]othing in the record suggests that [a defendant] was confused about the meaning and effect of the papers served upon him,” and there was no indication that the defendant was “confused about the fact that he had been sued and should respond.” Guar. Nat’l Ins. Co. v. Pittman, 501 So.2d 377, 388 (Miss.1987). This prong favors upholding the chancellor’s decision to deny Olive’s Rule 60(b) motion.

Prong Two: Olive’s Defense

¶ 12. As mentioned above, the second prong of the balancing test concerns whether the defendant has a colorable defense to the merits of the plaintiffs claim. The supreme court has held that “if any one of the three factors in the balancing test outweighs the other in importance, this is the one.” Rogillio, 10 So.3d at 469 (¶ 16) (citations omitted).

¶ 13. “Whether a defendant will likely prevail is not the measure of a meritorious defense.” Leach, 909 So.2d at 1287 (¶ 13) (citation omitted). “To show a creditable defense ... a party must show facts, not conclusions, and must do so by affidavit or other sworn form of evidence.” Am. Cable Corp. v. Trilogy Commc’n, Inc., 754 So.2d 545, 554 (¶35) (Miss.Ct.App.2000) (citing Rush v. N. Am. Van Lines, Inc., 608 So.2d 1205, 1210 (Miss.1992)). One does not sustain the burden of Rule 60(b) by relying on “unsubstantiated allegation[s] that a meritorious defense exists.” Id.

¶ 14. “While this Court does not view the default as a defendant’s general admission of facts, a defendant, upon default, is held to admit a plaintiffs well-pleaded allegations of fact[,] and [the] defendant is barred from contesting such facts on appeal.” Leach, 909 So.2d at 1287-88 (¶ 14) (citation omitted). Mere conclusions, unsubstantiated allegations, and general denials are not sufficient to set aside a default judgment. Id. at 1288 (¶ 15). Despite the general preference that litigants have a trial on the merits, a defendant must still “set forth[,] in affidavit form[,] the nature and substance of [his] defense.” H & W Transfer & Cartage Serv. v. Griffin, 511 So.2d 895, 899 (Miss.1987).

¶ 15. Olive did not present a defense to the merits of Maloufs claim. Malouf paid the agreed-upon price for the property at issue and paid the amount directly to BankPlus for Olive’s benefit — despite Olive’s having harvested the trees on the property. Malouf did not obtain any unjust enrichment. The second prong of the analysis weighs in Maloufs favor.

Prong Three: Maloufs Prejudice if Default is Set Aside

¶ 16. Olive does not address this prong. However, Malouf argues that he would suffer prejudice in that he would be further denied access to the property at issue. Malouf was deprived of access to the property until October 15, 2009. During that time, Olive harvested the timber off of the property. In other words, Olive stripped the property of a significant asset while the ownership of the property was unresolved.

¶ 17. Olive offers no argument whatsoever to suggest that Malouf will not be prejudiced if we were to set aside the default judgment. Given Olive’s failure to address this prong and the fact that the first and second prongs of the analysis weigh in Maloufs favor, we find that under the precise circumstances of this case, the chancellor did not abuse her discretion when she denied Olive’s motion to set aside the default judgment. It follows that we find no merit to Olive’s claim on appeal. Therefore, we affirm the chancellor’s judgment.

¶ 18. THE JUDGMENT OF THE MADISON COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., GRIFFIS, P.J., ISHEE, CARLTON, MAXWELL, RUSSELL and FAIR, JJ„ CONCUR. BARNES, J., Concurs in Part and in the Result. IRVING, P.J., not Participating.


source: Caselaw Access Project

author: CARLTON, J., BARNES, J.,

license: Public Domain

text:
    Charles P. ROGERS Jr., Appellant v. Julianne ROGERS, Appellee. Charles P. Rogers Jr., Appellant v. Julianne Rogers, Appellee.
    Nos. 2010-CA-01240-COA, 2010-CA-01657-COA.
    Court of Appeals of Mississippi.
    July 24, 2012.

      David M. Sessums, Vicksburg, Penny B. Lawson, attorneys for appellant.
    B. Blake Teller, Lauren Roberts Capp-aert, Vicksburg, attorneys for appellee.
   CARLTON, J.,

for the Court:

¶ 1. This case is a consolidated appeal of the final judgments entered by the Warren County Chancery Court on July 6, 2010, and September 28, 2010. On appeal, Charles P. Rogers Jr. submits the following issues for review: (1) whether the chancellor erred in finding that Charles perpetrated a fraud upon the court; (2) whether the doctrine of res judicata applies to the present matter; (8) whether the chancellor’s July 6, 2010 final judgment was against the overwhelming weight of the evidence; (4) whether Julianne C. Rogers was entitled to a judgment against Charles for alimony for the months of April 1, 2009, through August 1, 2010, in the amount of $10,200 plus interest; and (5) whether Julianne was entitled to attorney’s fees for bringing her motion for relief from judgment.

FACTS

¶2. Charles and Julianne married on August 9, 1997, in Vicksburg, Mississippi. The marriage produced no children. On October 28, 2008, Charles filed for divorce from Julianne on the grounds of adultery, habitual cruel and inhuman treatment, and addiction to drugs and alcohol or, in the alternative, irreconcilable differences. On January 22, 2009, alleging that she was totally disabled, Julianne filed her answer and counterclaim seeking to require Charles to provide her with permanent separate maintenance and medical insurance.

¶ 8. After a trial held on January 23, 2009, the chancellor entered a final judgment on March 18, 2009, granting Charles a divorce on the ground of habitual cruel and inhuman treatment. The chancellor awarded Charles the exclusive use, possession, and ownership of the marital home of the parties, and ordered him to pay Julianne $16,000 as her equity in the home. The chancellor also awarded Julianne $32,000 from Charles’s retirement account, and awarded Charles the ownership of the remainder of his retirement account with directions to pay the outstanding loan against his account. The chancellor further ordered Charles to pay Julianne $400 per month in rehabilitative alimony for thirty-six months and to provide Julianne with medical insurance coverage through his employer during that thirty-six-month period. The chancellor also ordered Charles to pay the balance of Julianne’s medical bills as listed on Charles’s financial statement under the liabilities section.

¶ 4. On November 3, 2009, Julianne filed a motion for citation of contempt, asserting that Charles had not paid the $16,000 in home equity, the medical insurance, or the outstanding medical expenses, per the March 18, 2009 judgment. Charles denied Julianne’s assertions, claiming that he had complied with the chancellor’s orders regarding the medical insurance and payment of medical expenses. He further claimed that a reasonable amount of time had not expired for paying the home equity.

¶ 5. After a hearing on the motion for contempt, the chancellor entered a final judgment on February 22, 2010, finding Charles in contempt of court for failure to comply with the provisions of the previous judgment. The chancellor ordered Charles to pay the outstanding amounts owed from the March 18, 2009 judgment, as well as $2,500 in attorney’s fees. The chancellor specified that Charles must pay Julianne the $16,000 equity payment on or before June 18, 2010; pay the balance owed on the medical expenses immediately; and also provide medical insurance coverage immediately.

¶ 6. On March 1, 2010, Julianne filed a motion to amend the final judgment, requesting the chancellor to order Charles to pay the $16,000 equity payment, medical expenses, and attorney’s fees within thirty days from the entry of the amended final judgment. Julianne also requested that the chancellor charge Charles interest for at least one year of the time that he failed to pay the equity amount to Julianne.

¶ 7. On March 3,2010, Julianne also filed a Mississippi Rule of Civil Procedure 60(b) motion for relief from the original divorce judgment, requesting the chancellor vacate and revise the final divorce degree regarding alimony awarded. Julianne claimed that Charles misrepresented the amount of his actual adjusted gross income stated in his Uniform Chancery Court Rule 8.05 financial statement. Although Charles’s Rule 8.05 statement reflects his bimonthly wages, Charles testified that his adjusted gross income listed in the Rule 8.05 statement constituted his bimonthly income, as opposed to his monthly income.

¶ 8. On July 6, 2010, the chancellor entered a final judgment finding that Charles’s income misrepresentations in his Rule 8.05 statement constituted fraud upon the court. The chancellor increased the alimony award accordingly, ordering Charles to pay Julianne $1,000 per month for thirty-six months as rehabilitative alimony. The chancellor also ordered Charles to pay Julianne the uncovered medical expenses she incurred during the initial twelve-month period before full insurance coverage could be obtained. Charles filed a motion for rehearing specifically disputing the chancellor’s finding that Charles had perpetrated a fraud upon the court. Charles also disputed the chancellor’s finding that res judicata was not applicable to the matter of alimony. The chancellor denied the motion. On July 28, 2010, Charles filed this appeal.

¶ 9. On August 5, 2010, Julianne filed another motion for citation for contempt, asserting that Charles had failed to comply with the final judgment of divorce and the July 6, 2010 judgment. Julianne requested that the court award her the arrearage of alimony owed through August 1, 2010, in the amount of $10,200, plus medical expenses incurred that were not covered by insurance due to Charles’s refusal to provide medical insurance since the entry of the final judgment on May 19, 2009.

¶ 10. After a hearing on the motion for contempt, the chancellor entered a judgment on September 28, 2010, finding Charles in contempt of court for failure to provide adequate medical-insurance coverage. The judgment also ordered Charles to immediately reimburse Julianne for medical expenses and pay her $1,605 in attorney’s fees. The chancellor awarded Julianne a judgment against Charles of $10,200, plus interest (at eight percent per annum), in alimony for April 1, 2009, through August 1, 2010.

¶ 11. Charles now appeals the September 28, 2010 final judgment.

STANDARD OF REVIEW

¶ 12. This Court reviews judgments in domestic-relations cases under the “substantial evidence/manifest error” rule. Evans v. Evans, 994 So.2d 765, 768 (¶ 9) (Miss.2008). We will not disturb the chancellor’s findings unless those findings were manifestly wrong, clearly erroneous, or the chancellor applied an incorrect legal standard. Id.

DISCUSSION

I. Fraud

¶ 18. Charles argues that the chancellor erred in granting Julianne’s Rule 60(b) motion and finding that Charles perpetrated a fraud upon the court with regard to his Rule 8.05 financial statement. Charles claims that he testified at trial that his Rule 8.05 statement indicated a bimonthly net income, as a opposed to a monthly net income. Charles argues that Julianne failed to meet her burden of pre-senting clear and convincing evidence of any fraud perpetrated by Charles.

¶ 14. Julianne argues Charles failed to raise the argument in his motion for rehearing or reconsideration that his trial testimony corrected the alleged misrepresentation of income information in his Rule 8.05 statement. She claims, therefore, Charles should be procedurally barred from raising this argument for the first time on appeal. Julianne submits that Charles made no attempt to correct his false income information, nor did he file an amended Rule 8.05 statement with the chancery court.

¶ 15. In her March 3, 2010 Rule 60(b) motion, Julianne asked the chancellor to vacate and revise the final divorce decree with regard to the alimony award. Julianne claimed that Charles’s actual adjusted gross income greatly exceeded the amount represented in his Rule 8.05 statement. Julianne contended the misrepresentation “is proof of a gross misrepresentation and fraud” upon the court. She further claimed:

In [his Rule 8.05] financial statement, [Charles] represented to this court that his monthly adjusted gross income was only $4,651.71.
Based upon this information provided by [Charles], the court only awarded [Julianne] $400 per month for thirty-six (36) months beginning April 1, 2009, as rehabilitative alimony. This award of this amount of alimony was certainly influenced by the amount of income represented to this court to be received by [Charles] in his 8.05 form.
It was not until January 11, 2010, when [Charles] responded to discovery in connection with the motion for citation of contempt filed by [Julianne] in this matter on or about November 4, 2009, that [Julianne] learned of the gross misrepresentation made by [Charles] through the form 8.05.

¶ 16. After a hearing on the matter, the chancellor entered a final judgment on July 6, 2010, determining:

[Charles’s Rule 8.05] financial statement in the divorce action and the applicable testimony reflected that [Charles’s] monthly gross income was $4,651.71, his monthly deductions were $1,587.60[,] and his adjusted gross monthly income was $3,064.11.
In the divorce action, the court considered [Charles’s] net income pursuant to his check stub ... as $2,153.59 per pay period.
The following calculations were made:
$55,993.34
$4,666.11
The court relied on the $4,666.11 per month calculation as [Charles’s] income in calculating the award of alimony to [Julianne] in the divorce action.
The court finds that [Julianne] presented sufficient evidence to prove fraud by [Charles].

¶ 17. The chancellor determined that Charles’s actual monthly adjusted gross income amounted to $5,857.03, as opposed to $4,666.11 as stated in the previous judgment. The chancellor subsequently revised the final divorce decree, increasing Julianne’s alimony award to $1,000 per month in rehabilitative alimony for a thirty-six-month period.

¶ 18. The general rule is well settled that fraud will not be presumed but must be affirmatively proven. Taft v. Taft, 252 Miss. 204, 213, 172 So.2d 403, 407 (Miss.1965). The Mississippi Supreme Court has held that in order to establish fraud, the burden is on the proponent to prove the following elements:

(1) a representation, (2) its falsity, (3) its materiality, (4) the speaker’s knowledge of its falsity or ignorance of its truth, (5) his intent that it should be acted on by the hearer and in the manner reasonably contemplated, (6) the hearer’s ignorance of its falsity, (7) his reliance on its truth, (8) his right to rely thereon, and (9) his consequent and proximate injury.

Koury v. Ready, 911 So.2d 441, 445 (¶ 13) (Miss.2005) (citing Mabus v. St. James Episcopal Church, 884 So.2d 747, 762 (¶ 32) (Miss.2004)). Additionally, “fraud ... must be proved with clear and convincing evidence.” Hamilton v. McGill, 352 So.2d 825, 831 (Miss.1977). We have recognized that “[cjlear and convincing evidence is such a high standard that even the overwhelming weight of the evidence does not rise to the same level.” Moran v. Fairley, 919 So.2d 969, 975 (¶ 24) (Miss.Ct.App.2005) (citation omitted).

¶ 19. To vacate a decree due to fraud, the supreme court, in Manning v. Tanner, 594 So.2d 1164, 1167 (Miss.1992), listed the four necessary requirements that must be met:

(1) that the facts constituting the fraud, accident, mistake[,] or surprise must have been the controlling factors in the effectuation of the original decree, without which the decree would not have been made as it was made; (2) the facts justifying the relief must be clearly and positively alleged as facts and must be clearly and convincingly proved; (3) the facts must not have been known to the injured party at the time of the original decree, and (4) the ignorance thereof at the time must not have been the result of the want of reasonable care and diligence.

¶ 20. In turning to a review of the record before us, we also note that the trial transcript from the January 23, 2009 trial shows Charles was questioned during direct examination regarding his earnings as follows:

Q. I’m going to hand you now, [Charles], your [Rule] 8.05 [statement,] and we’re going to talk through it. What do you make down there?
A. I’m on a salary of $88,000 a year.
Q. What do you receive [as a salary from your employer at Entergy] on a monthly basis?
A. I have here gross monthly income $4,651.71....
Q. [Charles], I’m going to place in front of you what’s been marked as Plaintifff’s] Exhibit 7[,] which is a copy of your 8.05 financial statement. And I’m going to hand you another document now.... Can you identify this new document for the court, please?
A. This is a copy of my paycheck for the month of November.
Q. That’s the date that we discussed previously. It says, ending pay date November 22, 2008, and check date November 28, 2008. Is that right?
A. That’s correct.
Q. And that’s an accurate reflection of your income?
A. That’s correct.
Q. Now, this pay period. Is that a one week pay period or a two week pay period?
A. That’s a two week pay period.

¶ 21. Charles was also cross-examined by Julianne’s attorney regarding his 8.05 financial statement and salary:

Okay. I think your pay period was being described as bi-monthly. But they’re not bi-monthly are they? Like the 1st and the 15th? <©
No. It’s every two weeks. It’s every other week.
Every two weeks? ñ
That’s correct. ¡>
You get paid every two weeks, that means you have 52[,] divided by two, pay periods a year? fl
26 pay checks a year. í>
If you were paid the month or bi-month, you would have 48 pay periods a year? <©
I don’t think it was describe [sic] bimonthly.
I just heard that word and I just wanted to be sure that we were on the same page. Now, your paycheck it shows that every two weeks — and you said this is a typical paycheck? G?
That’s correct. t>
For 80 hours. That’s 40 hours a week? ■©
That’s correct.

¶ 22. Indeed, Charles s Rule 8.05 statement reflected a gross monthly income of only $4,651.71. However, at trial, Charles explained in his testimony, under oath, that his annual salary was $88,000 and that he received paychecks on a bimonthly basis. At trial, during his testimony, Charles clarified that his Rule 8.05 statement represented his bimonthly gross income, as he received a paycheck twice a month, not his monthly gross income.

¶ 28. Additionally, at the February 16, 2010 hearing on Julianne’s motion for contempt, Julianne’s attorney again questioned Charles about his Rule 8.05 statement in an attempt to elicit an admission from Charles that he had intentionally misrepresented his income to the court in the previous divorce trial. However, Charles refused to admit any intentional misrepresentation and instead explained that he had been heavily cross-examined during the divorce trial regarding the pay stub he submitted. Charles testified that he used the information provided on his pay stub to submit his financial information in the Rule 8.05 statement.

¶ 24. Julianne cites Trim v. Trim, 33 So.3d 471 (Miss.2010), in support of her argument that Charles’s inaccurate Rule 8.05 statement perpetrated a fraud upon the court. In Trim, George Trim submitted his Rule 8.05 statement listing the value of his company’s stock at $100,000. Id. at 473 (¶ 4). George and his ex-wife, Lisa, entered into a property-settlement agreement, which the chancellor later ratified, based on their assets and liabilities disclosed in their Rule 8.05 statements. Id. Lisa later discovered that George had misrepresented his stock value in his Rule 8.05 statement, and filed suit against him for fraudulent misrepresentation. Lisa’s expert valued George’s stock at $694,000 at the time of George and Lisa’s divorce. Id. at 474 (¶ 4). On appeal, the Trim court held that George’s intentional filing of a substantially false Rule 8.05 statement constitutes a fraud on the court, noting the chancellor’s finding that George’s Rule 8.05 statement drastically undervalued a major marital asset. Id. at 478 (¶ 17).

¶ 25. The case before us differs from Trim in that the record shows that Charles testified during trial and explained that his Rule 8.05 submission reflected a two-week pay period. In applying the standard for proving fraud to the facts and record before us, we cannot agree that Julianne met her burden of proving fraud by clear and convincing evidence. See Hamilton, 352 So.2d at 831. Although Charles’s Rule 8.05 statement incorrectly reflected his monthly salary, the record shows that he explained the discrepancy several times in his trial testimony. As a result, we find that the chancellor erred in considering Charles’s Rule 8.05 statement only, and not also his trial testimony, in determining that Charles’s misrepresentation of his income rose to the level of fraud. In her July 6, 2010 judgment, the chancellor erroneously found that Julianne proved by clear and convincing evidence that Charles perpetrated a fraud upon the court. Therefore, the chancellor erred in vacating the prior decree and revising the final divorce decree by increasing the alimony award. Accordingly, we reverse and set aside the revised final judgment and reinstate the original divorce decree. We also reverse and render the increased award of $1,000 in rehabilitative alimony for thirty-six months, which was based upon the erroneous finding of fraud on the court. Since the record does not support a finding of fraud by clear and convincing evidence, we reinstate the chancellor’s original divorce decree. See Manning, 594 So.2d at 1167; Shaeffer v. Shaeffer, 370 So.2d 240, 242 (Miss.1979).

II. Res Judicata

¶ 26. Charles next submits that since no fraud was perpetrated on the court, the doctrine of res judicata applies. Charles claims that the issue of alimony had already been decided in the March 18, 2009 final judgment; therefore, the chancellor had no authority to increase the alimony award in the February 22, 2010 judgment. Charles further argues that Julianne is not entitled to an alimony award of $10,200, plus interest at a rate of eight percent, as her original alimony award was $400 per month for thirty-six months. Charles argues that Julianne failed to file a motion for the chancellor to reconsider the award after entry of the March 18, 2009 final judgment.

¶ 27. The record reflects that the chancellor’s judgment granted Charles a divorce based upon habitual cruel and inhuman treatment. The chancellor also divided the marital property and awarded Julianne rehabilitative alimony of $400 per month for thirty-six months. The judgement reflected that no lump-sum alimony was awarded; rather, the chancellor equitably divided the marital property and awarded temporary alimony. Our supreme court has stated that no decree of alimony is ever truly a final judgment, as alimony is a continuing matter always subject to modification based upon a material change of circumstances. See Campbell v. Campbell, 357 So.2d 129, 130 (Miss.1978) (citations omitted). However, in this case, the chancellor based the revision of the final decree upon asserted fraud, not a material change in circumstances. See Taft, 252 Miss, at 213, 172 So.2d at 407. In Austin v. Austin, 981 So.2d 1000, 1005 (¶ 17) (Miss.Ct.App.2007), this Court held that the doctrine of res judicata did not bar the chancellor’s modification of an award of alimony where a material change in circumstances existed that was sufficient to justify a modification of a party’s financial obligations under the original divorce decree. Therefore, Charles’s claim that res judicata applies to the award of rehabilitative alimony in this case is misplaced. However, since we found that the modification in the present case was based on an unsupported claim of fraud, we reinstated the original decree of divorce after finding that the record failed to support the chancellor’s revision of the decree based on her finding of fraud. See generally Manning, 594 So.2d at 1167; Shaeffer, 370 So.2d at 242.

III. Attorney’s Fees

¶ 28. Charles submits that Julianne should not be awarded attorney’s fees for bringing her motion, as there was no fraud perpetrated on the court. Charles argues that the chancellor’s award of $1,605 in attorney’s fees to Julianne should be reversed.

¶ 29. Our jurisprudence generally provides that “[a]n award of attorney’s fees is appropriate in a divorce case where the requesting party establishes an inability to pay.” Gray v. Gray, 745 So.2d 234, 239 (¶ 26) (Miss.1999) (citations omitted). Additionally, a chancellor may also award attorney’s fees based on a party’s wrongful conduct, as stated in Chesney v. Chesney, 849 So.2d 860, 863 (¶ 12) (Miss.2002), as follows:

There have been a number of prior decisions upholding the award of attorney’s fees to one party where the other party has been found to be in contempt of court or where that party’s actions caused additional legal fees to be incurred. See A & L, Inc. v. Grantham, 747 So.2d 832, 844-45 [ (¶ 60) ] (Miss.1999) (holding that awarding attorney’s fees under certain circumstances, regardless of the party’s ability to pay, is not a reward, but reimbursement for the extra legal costs incurred as a result of the opposing party’s actions); Douglas v. Douglas, 766 So.2d 68, [72 (¶ 14) ] (Miss.Ct.App.2000) (where a party who is entitled to the benefits of a previous judicial decree is forced to initiate further proceedings to gain compliance with the previous order of the court, an award of attorney’s fees is appropriate).

See also McCarrell v. McCarrell, 19 So.3d 168, 172-73 (¶¶ 18-19) (Miss.Ct.App.2009). Further, the issue of whether to award attorneys’ fees in a divorce case constitutes a discretionary matter left to the chancellor, and this Court is “reluctant to disturb” such a finding. Young v. Young, 796 So.2d 264, 268 (¶ 11) (Miss.Ct.App.2001).

¶ 30. Chancellors are instructed to apply the McKee factors in granting or denying attorney’s fees. See McKee v. McKee, 418 So.2d 764, 767 (Miss.1982). However, the chancellor’s September 28, 2010 final judgment, where the chancellor awarded Julianne $1,605 in attorney’s fees, shows no mention of, nor specific findings on, the McKee factors. The chancellor stated only that “evidence reflected that [Julianne’s] attorney’s fees and court costs totaled $1,605.”

¶ 31. Our supreme court has held where there is substantial evidence in the record supporting the chancellor’s award of attorney’s fees, the omission of specific findings cannot be deemed reversible error. See Varner v. Varner, 666 So.2d 493, 498 (Miss.1995) (no McKee findings); Prescott v. Prescott, 736 So.2d 409, 416 (¶ 31) (Miss.Ct.App.1999) (no finding of inability of recipient to pay). We further note that a specific, on-the-record finding of inability to pay is not necessary where attorney’s fees are awarded due to the other party’s failure to comply with discovery requests. Russell v. Russell, 733 So.2d 858, 863 (¶ 16) (Miss.Ct.App.1999). A specific finding of inability to pay is also not required when attorneys’ fees are assessed against a party found to be in contempt. Mount v. Mount, 624 So.2d 1001, 1005 (Miss.1993).

¶ 32. In the case before us, the chancellor recognized Charles’s continued failure and refusal to comply with the divorce decree, including his failure to make alimony payments, failure to provide medical-insurance coverage, and failure to pay Julianne’s uncovered medical expenses. The chancellor also found Charles in contempt of court for his failure to provide adequate medical-insurance coverage for Julianne. For these reasons, we affirm the chancellor’s award of attorney’s fees to Julianne. This assignment of error is without merit.

¶ 33. THE JUDGMENT OF THE CHANCERY COURT OF WARREN COUNTY IS AFFIRMED IN PART AND REVERSED AND RENDERED IN PART. ALL COSTS OF THIS APPEAL ARE ASSESSED ONE-HALF TO THE APPELLANT AND ONE-HALF TO THE APPELLEE.

LEE, C.J., IRVING, P.J., ISHEE, ROBERTS, MAXWELL AND RUSSELL, JJ„ CONCUR. BARNES, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY GRIFFIS, P.J., AND FAIR, J.

BARNES, J.,

dissenting:

¶ 34. Although Charles claims his testimony should have alerted the chancellor as to the correct figure for his salary, the fact remains that he submitted a substantially false Uniform Chancery Court Rule 8.05 financial statement to the court. Moreover, if Charles had no intent to file a false statement, then his contradictory testimony regarding his financial statement, pay stub, and his income should have alerted him that an amendment or correction to the Rule 8.05 statement was required. Consequently, I find no error in the chancellor’s ruling that Charles committed a fraud upon the court, and I dissent from the majority’s finding that the chancellor erred by vacating the prior decree and increasing the alimony award to Julianne.

¶ 35. Immediately prior to a recess at the initial divorce hearing on January 23, 2009, Charles commented that his salary was “$88,000 a year.” Yet, after the proceedings resumed, Charles reviewed his 8.05 statement and testified: “I have here gross monthly income $4,651.71.” (Emphasis added). This figure only equates to an annual gross salary of $55,820.52. Then, Charles confirmed that the check stub admitted into evidence was an “accurate reflection of [his] current wages.” Charles identified it as “a copy of my paycheck for the month of November.” (Emphasis added). The stub, however, noted that the ending pay date was November 22, 2008.

Q. And that’s an accurate reflection of your income?
A. That’s correct.

However, Charles later clarified that he was paid in two-week pay periods.

¶ 36. The chancellor relied on Charles’s representation of his salary from his Rule 8.05 statement and his pay stubs in determining the award of alimony. In the judgment entered on July 6, 2010, the chancellor stated:

In the divorce action, the Court considered [Charles’s] net income pursuant to his check stub ... as $2,158.59 per pay period.
The following calculations were made:
$2,153.59
$55,883.34
$4,666.11
The Court relied on the $1-,666.11 per month calculation as [Charles’s] income in calculating the award of alimony to [Julianne] in the divorce action.
The Court finds that [Julianne] presented sufficient evidence to prove fraud by [Charles].

(Emphasis added).

¶ 37. At a hearing on January 13, 2010, Charles was asked about the discrepancy between his 2008 tax return and his Rule 8.05 statement.

Q. I’m going to hand you this. Can you recognize that as your '08 8.05 presented for the divorce proceeding?
A. That’s correct.
Q. Okay. And according to your 8.05 for the divorce proceeding, your gross salary wages, et cetera was forty-six fifty-one seventy-one?
A. That’s correct.
Q. Okay. [Charles], if I even round that up to five thousand a month gross, that’s sixty thousand for the year '08. But your return says that you made approximately a hundred thousand. How do you explain the difference?
A. At the time I filled this out in November, I didn’t have the tax return.
And I again used the calculation provided there with the pay stub, current pay stub I had.

At a second hearing in February 2010, Charles refused to admit that the figure on the 8.05 was incorrect.

Q. [Charles], in your 8.05 that you submitted in connection with this divorce case, December of 2008, you indicated that your income per month was four thousand^] six hundred fifty-one dollars and seventy-one cents, didn’t you.
A. That’s what it was at the time.
Q. But your income tax return clearly shows you made over a hundred thousand dollars in '08? Is that not true?
A. That [8.05] that was filed that was filled out, I used the number — there was pay stubs submitted at the time of the divorce.
Q. [Charles], why don’t you admit that you misrepresented to this Court that you only made forty-five hundred or so a month. When you in fact, you know you made over ten thousand a month?
A. The number that I used to come up with this was off the pay stub when I submitted this 8.05[,] and I don’t have a copy of those pay stubs from November 2008.

He argued that he had been cross-examined regarding the year-to-date total, apparently referencing his comment about the $88,000 yearly salary.

¶ 38. In Trim v. Trim, 33 So.3d 471, 478 (¶ 17) (Miss.2010), the Mississippi Supreme Court held that “a party’s intentional filing of a substantially false Rule 8.05 financial statement constitutes a fraud on the court.” A part of Charles’s testimony contradicted the monthly salary amount in his Rule 8.05 statement, while some testi-raony supported the figure in the statement. It should have been evident to Charles, just as he claims it should have been evident to the chancellor, that the information in his 8.05 needed to be adjusted. As in Trim, “reasonable minds could differ on whether the elements of fraud were met in this case.” Id. at 479 (¶ 20). However, “[t]he credibility of the witnesses and the weight of their testimony, as well as the interpretation of evidence where it is capable of more than one reasonable interpretation, are primarily for the chancellor as the trier of facts.” Id. (quoting Chamblee v. Chamblee, 637 So.2d 850, 860 (Miss.1994)) (emphasis added). I find it reasonable for the chancellor to have relied on Charles’s Rule 8.05 statement, rather than try to weigh and determine which portion of his testimony was true or was not true. At no time during the original hearing did Charles indicate that the Rule 8.05 statement’s representation of “gross monthly income” was inaccurate. Therefore, I find that the evidence was sufficient for the chancellor to determine that Charles perpetuated a fraud on the court, and I would affirm the chancellor’s ruling.

GRIFFIS, P.J., AND FAIR, J., JOIN THIS OPINION.

      . For the purposes of this opinion, “bimonthly” refers to receiving payment twice a month.

      . We recognize that the doctrine of res judica-ta precludes a party from litigating claims that were raised or could have been raised in the original action. Howard v. Howard, 968 So.2d 961, 973 (¶ 27) (Miss.Ct.App.2007). Four identities must be present before a subsequent action may be dismissed on the basis of res judicata:
      (1) identity of the subject matter of the original action when compared with the action ... sought to be precluded; (2) identity of underlying facts and circumstances upon which a claim is asserted and relief sought in the two actions; (3) identity of the parties to the two actions, and identity met where a party to the one action was in privity with a party to the other; and (4) identity of the quality or character of a person against whom the claim is made.

        Id. "If the four identities are present; a party may not raise a claim in a subsequent action.” Id. "This is true regardless of whether all grounds for possible recovery were litigated or asserted in the prior action, as long as those grounds were available to a party and should have been asserted.” Id. (citation omitted).

      . We recognize that in matters of alimony, the chancellor has substantial discretion in reaching a decision that will be both "equitable and fair to both parties.” Seale v. Seale, 863 So.2d 996, 999 (¶ 14) (Miss.Ct.App.2004); see also Lane v. Lane, 850 So.2d 122, 125 (¶ 7) (Miss.2002) (explaining that the appellate court will not reverse a chancellor's findings on the issues of alimony unless we first find that the chancellor abused his discretion or was manifestly wrong); Campbell v. Campbell, 357 So.2d 129, 130 (Miss.1978) (holding that a decree of alimony is always subject to modification based upon a material change of circumstances).


author: WISE, Justice.

text:
    CITY OF PRICHARD v. Scott A. BALZER et al.
    1100950.
    Supreme Court of Alabama.
    April 20, 2012.
    Suzanne Paul and C. Michael Smith of Paul & Smith, P.C., Mobile; and R. Scott Williams and Latanishia D. Watters of Haskell Slaughter Young & Rediker, LLC, Birmingham, for appellant.
    Donald J. Stewart and Thomas B. Hum-phries of Cabaniss, Johnston, Gardner, Dumas & O’Neal, LLP, Mobile, for appel-lees.
    Matthew H. Lembke and Anna Manasco Dionne of Bradley Arant Boult Cummings LLP, Birmingham; and Jeffrey M. Sewell, county atty., Birmingham, for amicus curiae Jefferson County, in support of the appellant.
   WISE, Justice.

The United States District Court for the Southern District of Alabama, Southern Division (“the federal district court”), has certified to this Court the following question pursuant to Rule 18, Ala. R.App. P.:

“Whether Ala.Code § 11-81-3 (1975) (as amended) requires that an Alabama municipality have refunding or funding bond indebtedness as a condition of eligibility to proceed under Chapter 9 of Title 11 of the United States Code?”

We answer this question in the negative.

7. Factual Background

The following background information presented by the federal district court will be helpful to an understanding of this case:

“On October 9, 2009, the City of Prichard, Alabama filed a bankruptcy petition under Chapter 9 of Title 11 of the United States Code. In order to be a debtor under Chapter 9, a municipality must be ‘specifically authorized, in its capacity as a municipality or by name, to be a debtor under such chapter by State law, or by a governmental officer or organization empowered by State law to authorize such entity to be a debtor under such chapter.’ 11 U.S.C. § 109(c)(2).
“Alabama’s statute which authorizes a municipality to file bankruptcy provides:
“ ‘The governing body of any county, city or town, or municipal authority organized under Article 9, Chapter 47 of this title which shall authorize the issuance of refunding or funding bonds may exercise all powers deemed necessary by the governing body for the execution and fulfillment of any plan or agreement for the settlement, adjustment, refunding, or funding of the indebtedness of the county, city or town, or municipal authority organized under Article 9, Chapter 47 of this title not inconsistent with the provisions of law relating to the issuance of refunding or funding bonds. Without limiting the generality of any of the foregoing powers, it is expressly declared that the governing body shall have the power to take all steps and proceedings contemplated or permitted by any act of the Congress of the United States relating to the readjustment of municipal indebtedness, and the State of Alabama hereby gives its assent thereto and hereby authorizes each county, city or town, or municipal authority organized under Article 9, Chapter 47 of this title in the state to proceed under the provisions of the acts for the readjustment of its debts.’
“Ala.Code § 11-81-3 (1975) (as amended).
“In response to the bankruptcy petition, a group of the City of Prichard’s employees (who are vested in the City’s Retirement Plan) sought dismissal of the City of Prichard’s petition. The employees allege that the City of Prichard may not be a debtor under Chapter 9 because the City of Prichard is not an entity specifically authorized by State law.
“Specifically, the employees’ position is that Ala.Code § 11-81-3 makes the refunding or funding bond indebtedness a threshold requirement under Alabama law for a municipality to file under Chapter 9 and that the City of Prichard does not meet this requirement.1 The Bankruptcy Court agreed and dismissed the City of Prichard’s petition. The City of Prichard appealed to the United States District Court.
"1 There is no evidence before the Court that the City of Prichard currently has any debt in the form of refunding or funding bonds.”

II. Discussion

The City of Prichard (“the City”) and a group of current City employees who are vested in the City’s retirement plan (“the employees”) have filed opposing briefs asserting their interpretations of § 11-8-3, Ala.Code 1975. Jefferson County has also filed an amicus curiae brief in this case.

In answering the federal district court’s question, we are guided by the following principles of statutory construction:

“In Archer v. Estate of Archer, 45 So.3d 1259, 1263 (Ala.2010), this Court described its responsibilities when construing a statute:
“1 “ ‘[I]t is this Court’s responsibility in a case involving statutory construction to give effect to the legislature’s intent in enacting a statute when that intent is manifested in the wording of the statute.... “ ‘ “ ‘[I]f the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.’ ” ’ ” ... In determining the intent of the legislature, we must examine the statute as a whole and, if possible, give effect to each section.’
“ ‘ “Ex parte Exxon Mobil Corp., 926 So.2d 303, 309 (Ala.2005). Further,
“ ‘ “ ‘when determining legislative intent from the language used in a statute, a court may explain the language, but it may not detract from or add to the statute.... When the language is clear, there is no room for judicial construction.... ’
“ ‘ “Water Works & Sewer Bd. of Selma v. Randolph, 833 So.2d 604, 607 (Ala.2002).” ’
“(Quoting Ex parte Birmingham Bd. of Educ., 45 So.3d 764, 767 (Ala.2009).) Similarly, in Lambert v. Wilcox County Commission, 623 So.2d 727, 729 (Ala.1993), the Court stated:
“ ‘ “The fundamental rule of statutory construction is that this Court is to ascertain and effectuate the legislative intent as expressed in the statute.... In this ascertainment, we must look to the entire Act instead of isolated phrases or clauses ... and words are given their plain and usual meaning.... Moreover, just as statutes dealing with the same subject are in parí materia and should be construed together, ... parts of the same statute are in pari materia and each part is entitled to equal weight.” ’
“(Quoting Darks Dairy, Inc. v. Alabama Dairy Comm’n, 367 So.2d 1378, 1380-81 (Ala.1979).)”

First Union Nat’l Bank of Florida v. Lee Cnty. Comm’n, 75 So.3d 105, 111-12 (Ala.2011).

“When interpreting a statute, a court must first give effect to the intent of the legislature. BP Exploration & Oil, Inc. v. Hopkins, 678 So.2d 1052 (Ala.1996).
“ ‘The fundamental rule of statutory construction is that this Court is to ascertain and effectuate the legislative intent as expressed in the statute. League of Women Voters v. Renfro, 292 Ala. 128, 290 So.2d 167 (1974). In this ascertainment, we must look to the entire Act instead of isolated phrases or clauses; Opinion of the Justices, 264 Ala. 176, 85 So.2d 391 (1956).’
“Darks Dairy, Inc. v. Alabama Dairy Comm’n, 367 So.2d 1378, 1380 (Ala.1979) (emphasis added). To discern the legislative intent, the Court must first look to the language of the statute. If, giving the statutory language its plain and ordinary meaning, we conclude that the language is unambiguous, there is no room for judicial construction. Ex parte Waddail, 827 So.2d 789, 794 (Ala.2001).”

City of Bessemer v. McClain, 957 So.2d 1061, 1074-75 (Ala.2006).

With regard to Chapter 9 bankruptcies, 11 U.S.C. § 109(c) provides:

“(c) An entity may be a debtor under chapter 9 of this title if and only if such entity—
“(1) is a municipality;
“(2) is specifically authorized, in its capacity as a municipality or by name, to be a debtor under such chapter by State law, or by a governmental officer or organization empowered by State law to authorize such entity to be a debtor under such chapter,
“(3) is insolvent;
“(4) desires to effect a plan to adjust such debts; and
“(5)(A) has obtained the agreement of creditors holding at least a majority of the claims of each class that such entity intends to impair under such plan in a case under such chapter;
“(B) has negotiated in good faith with creditors and has failed to obtain the agreement of creditors holding at least a majority in amount of the claim of each class that such entity intends to impair under a plan in a case under such chapter;
“(C) is unable to negotiate with creditors because such negotiation is impracticable; or
“(D) reasonably believes that a creditor may attempt to obtain a transfer that is avoidable under section 547 of this title.”

(Emphasis added.)

Therefore, to proceed under Chapter 9 of the Bankruptcy Code, a municipality must be authorized by State law to be a debtor under federal bankruptcy law. The statute authorizing Alabama municipalities to be debtors under federal bankruptcy law is § 11-81-3, Ala.Code 1975, which, as noted in the federal district court’s certified question, provides:

“The governing body of any county, city or town, or municipal authority organized under Article 9, Chapter 47 of this title which shall authorize the issuance of refunding or funding bonds may exercise all powers deemed necessary by the governing body for the execution and fulfillment of any plan or agreement for the settlement, adjustment, refunding, or funding of the indebtedness of the county, city or town, or municipal authority organized under Article 9, Chapter 47 of this title not inconsistent with the provisions of law relating to the issuance of refunding or funding bonds. Without limiting the generality of any of the foregoing powers, it is expressly declared that the governing body shall have the power to take all steps and proceedings contemplated or permitted by any act of the Congress of the United States relating to the readjustment of municipal indebtedness, and the State of Alabama hereby gives its assent thereto and hereby authorizes each county, city or town, or municipal authority organized under Article 9, Chapter 47 of this title in the state to proceed under the provisions of the acts for the readjustment of its debts.”

In this case, the employees argue that the clause “which shall authorize the issuance of refunding or funding bonds” in the first sentence of § 11-81-3 specifies that only the governing bodies of those counties, cities, towns, or municipal authorities organized under Article 9, Chapter 47 of Title 11, Ala.Code 1975, that actually have indebtedness issued in the form of refunding or funding bonds have the authority to exercise their powers to execute and fulfill plans to adjust the indebtedness of such counties, cities, towns, or municipal authorities. They also argue that, when the two sentences of the statute are read in pari materia, the second sentence of the statute, which authorizes counties, cities, towns, and municipal authorities to readjust their indebtedness by filing petitions in bankruptcy, is likewise applicable only to those entities that actually have indebtedness in the form of refunding bonds or funding bonds. On the other hand, the City argues that § 11-81-3 is ambiguous and that the legislative history of the statute clearly shows the legislative intent to authorize any county, city, town, or municipal authority organized pursuant to Article 9, Chapter 47 of Title 11, Ala.Code 1975, to file for federal bankruptcy protection.

The language of the statute is unambiguous. The second sentence of § 11-81-3 provides:

“Without limiting the generality of any of the foregoing powers, it is expressly declared that the governing body shall have the power to take all steps and proceedings contemplated or permitted by any act of the Congress of the United States relating to the readjustment of municipal indebtedness, and the State of Alabama hereby gives its assent thereto and hereby authorizes each county, city or town, or municipal authority organized under Article 9, Chapter 47 of this title in the state to proceed under the provisions of the acts for the readjustment of its debts.”

(Emphasis added.) The first part of this sentence speaks in terms of “the governing body,” and the employees contend that the phrase “the governing body” as used there refers only to the governing bodies of those counties, cities, towns, or municipal authorities “which [have] authorized] the issuance of refunding or funding bonds.” However, even such a reading of the sentence does not lead to the result urged by the employees. In this part of the second sentence, the legislature was merely expressing its intent that not only can the governing bodies referred to in the first sentence of § 11-81-8 readjust the indebtedness of the entities they govern as provided in the first sentence, but they can also proceed under federal law relating to the readjustment of municipal indebtedness. However, the second clause of the second sentence of § 11-81-3 does not speak in terms of governing bodies. Rather, it clearly states that the State of Alabama authorizes “each county, city or town, or municipal authority organized under Article 9, Chapter 47 of [Title 11]” to file for federal bankruptcy protection. Therefore, even if the phrase “which shall authorize the issuance of refunding or funding bonds” in the first sentence was intended to specify which governing bodies were authorized to readjust the indebtedness of a particular entity, no such limitation was inserted in the second clause of the second sentence, which provides the State’s general assent to and authorization for counties, cities, towns, and municipal authorities to seek federal bankruptcy protection. Therefore, it is clear that the legislature intended to authorize every county, city, town, or municipal authority organized under Article 9, Chapter 47 of Title 11, Ala.Code 1975, to proceed under the federal bankruptcy provisions. To adopt the interpretation of § 11-81-3 urged by the employees in this case would fly in the face of the clear legislative intent.

III. Conclusion

It is clear that the legislature intended to authorize every county, city, town, and municipal authority organized pursuant to Article 9, Chapter 47 of Title 11, Ala.Code 1975, to file for federal bankruptcy protection. Therefore, § 11-81-3 does not require that an Alabama municipality have indebtedness in the form of refunding bonds or funding bonds as a condition to eligibility to proceed under Chapter 9 of Title 11 of the United States Code. Accordingly, we answer the question certified by the federal district court in the negative.

QUESTION ANSWERED.

MALONE, C.J., and WOODALL, STUART, BOLIN, PARKER, MURDOCK, SHAW, and MAIN, JJ., concur.

      . On July 19, 2011, Jefferson County filed its motion for leave to file an amicus curiae brief in support of the City. In its motion, Jefferson County asserted that it had "an acute interest in the availability of federal bankruptcy relief”; that, although it had debt in the form of warrants, it did not hold any bond debt: and that "this Court’s conclusion in this case may have some relevance to whether Jefferson County can, if necessary, commence federal bankruptcy proceedings to reorganize its debt.” Subsequently, on November 9, 2011, Jefferson County filed a bankruptcy petition under Chapter 9 of Title 11 of the United States Code. The Bank of New York Mellon, as the indenture trustee for holders of warrants issued by Jefferson County to pay for improvements to, and expansion of, its sewer system, challenged Jefferson County's eligibility to be a debtor pursuant to 11 U.S.C. § 109(c)(2) because it did not have outstanding bond indebtedness. However, on March 4, 2012, the United States Bankruptcy Court for the Northern District of Alabama, Southern Division, entered a memorandum opinion and an order in which it held that Jefferson County was eligible to be a debtor pursuant to 11 U.S.C. § 109(c).

      . “The term ‘municipality’ means political subdivision or public agency or instrumentality of a State." 11 U.S.C. § 101(40).


text:
    OPINION OF THE JUSTICES.
    No. 387.
    Supreme Court of Alabama.
    May 16, 2012.
   Members of the Senate

Alabama State House

Montgomery, Alabama 36130

Dear Senators:

We have received Senate Resolution No. 86, requesting the opinions of the Justices of the Supreme Court as to whether Senate Bill 563, if passed, would violate certain provisions of the Alabama Constitution of 1901. The Senate Resolution states:

‘WHEREAS, there is now pending in the Legislature Senate Bill 563 which provides and directs the appropriation and distribution of funds received by Jackson County as its portion of the in-lieu-of tax payments received by the State of Alabama from the Tennessee Valley Authority and which specifically provides in part for a portion of the fund to be appropriated to the Jackson County Discretionary Board consisting of the Chair of the Jackson County Commission, the senator, and two representatives, respectively, that are legislators representing all or part of Jackson County; now therefore,
“BE IT RESOLVED BY THE SENATE OF THE LEGISLATURE OF ALABAMA, That the Justices of the Alabama Supreme Court, or a majority of them, are hereby requested to render to the Legislature their written opinion as provided in Section 12-2-10, Code of Alabama 1975, on the following questions concerning the bill, a copy of which is attached:
“(1) Does the bill violate Article III, Sections 42 and 43, of the Constitution of Alabama 1901, related to the separation of powers?
“(2) Does the bill violate Article IV, Section 72, of the Constitution of Alabama of 1901, related to payment of public funds?
“(3) Does the bill violate Article IV, Section 105, of the Constitution of Alabama of 1901, related to the enactment of local laws?”

Alabama Code 1975, § 12-2-10, provides that “[t]he Governor, by a request in writing, or either house of the Legislature, by a resolution of such house, may obtain a written opinion of the justices of the Supreme Court of Alabama or a majority thereof on important constitutional questions.” In its first advisory opinion, addressing the constitutionality of the Advisory Opinion Act, Act No. 43, Ala. Acts 1923, now codified at § 12-2-10, the Justices of the Supreme Court stated:

“Interpreting the act according to its manifest effects, these conclusions must, of necessity, prevail: (a) That the act does not at all contemplate the advice or the advisory opinions of the Justices upon any matter relating to the wisdom, desirability, or policy of prospective legislative or executive action; (b) that the merely advisory opinions contemplated are those of the individual Justices, not the Supreme Court of Alabama in its judicial capacity; (c) that specific inquiries, within the intent of the act, must involve or concern concrete, important constitutional questions upon matters or subjects of a general public nature, as distinguished from questions involved in the ascertainment or declaration of private right or interest; (d) and that responses to questions within the purview of the act are designed to be advisory, consultative only, not concluding or binding the Governor or the House or Houses propounding inquiries or the Justices responding thereto.”

Opinion of the Justices No. 1, 209 Ala. 593, 594, 96 So. 487, 488-89 (1923) (emphasis added).

Senate Bill 563 relates exclusively and specifically to the appropriation and distribution of funds received by Jackson County and is, therefore, local legislation. See Norton v. Mobile Cnty., 562 So.2d 503, 505 (Ala.1990) (“[A]n act that was clearly intended to apply to a single county must be construed as a local act.”); Thomas v. Alabama Mun. Elec. Auth., 432 So.2d 470, 479 (Ala.1983) (“A local law also is one that applies to a particular locality or particular localities to the exclusion of others”). This Court has recently noted that it is disinclined to render an advisory opinion on proposed local legislation:

“Since 1959, it has been the policy of members of this Court to decline to answer [a request for] an advisory opinion on prospective legislative action involving a question on a local matter. In Opinion of the Justices No. 164, 269 Ala. 127, 111 So.2d 605 (1959), the Governor had requested an advisory opinion as to whether a proposed constitutional amendment dealing with the levy of special school taxes in Cleburne County was constitutional. The Justices stated:
“ ‘Our chief difficulty is whether questions relating to a school tax in a single county “involve or concern concrete, important constitutional questions upon matters or subjects of a general public nature,” ... as to require an advisory opinion.... But we do feel that no more advisory opinions should be issued by the members of this Court when the only questions, constitutional or otherwise, involve purely local matters.’
269 Ala. at 130, 111 So.2d at 608 (quoting Opinion of the Justices No. 1, 209 Ala. at 594, 96 So. at 489). See also Opinion of the Justices No. 348, 665 So.2d 1377, 1378 (Ala.1995) (‘The Justices [in Opinion of the Justices No. 164] wrote that it was difficult to say that questions relating to a single county “involve or concern concrete, important constitutional questions upon matters or subjects of a general public nature.” ’ (quoting Opinion of the Justices No. 164, 269 Ala. at 130, 111 So.2d at 608, quoting Opinion of the Justices No. 1, 209 Ala. at 594, 96 So. at 489)); Opinion of the Justices No. 333, 598 So.2d 1362, 1367 (Ala.1992) (‘We note that for almost 30 years it has been the policy of this Court to decline to give advisory opinions on legislation involving purely local matters....’); Opinion of the Justices No. 304, 436 So.2d 832, 833-34 (Ala.1983); Opinion of the Justices No. 207, 287 Ala. 342, 342, 251 So.2d 759, 760 (1971) (declining to issue an advisory opinion because the question involved ‘purely local matters’); Opinion of the Justices No. 192, 281 Ala. 231, 231, 201 So.2d 103, 104 (1967); and Opinion of the Justices No. 191, 281 Ala. 187, 200 So.2d 486 (1967).”

Opinion of the Justice No. 383, 925 So.2d 193, 196-97 (Ala.2006).

This Court has recognized certain exceptions to this general policy “when ‘it was necessary to decide such matters in developing the rationale to answer other questions of an important constitutional nature that involved general laws,’ ... or when the legislation ‘contains a constitutional amendment that must be ratified statewide’ .... ” Opinion of the Justices No. 348, 665 So.2d 1377, 1378 (Ala.1995) (quoting Opinion of the Justices No. 333, 598 So.2d 1362, 1367 (Ala.1992)). Neither of these exceptions appear to apply to Senate Bill 563.

Because this request involves proposed local legislation that affects only Jackson County and neither of the exceptions previously recognized by this Court are applicable, we must respectfully decline to answer the questions posed by Senate Resolution 86.

QUESTIONS DECLINED.

Respectfully Submitted,

/s/ Charles R. Malone Charles R. Malone Chief Justice

/s/ Thomas A. Woodall Thomas A. Woodall

/s/ Lyn Stuart Lyn Stuart

/s/ Michael F. Bolin Michael F. Bolin

/s/ Tom Parker Tom Parker

/s/ Glenn Murdock Glenn Murdock

/s/ Greg Shaw Greg Shaw

/s/ James Allen Main James Allen Main

/s/ A. Kelli Wise A. Kelli Wise Associate Justices


author: MOORE, Judge.

text:
    Sharon Carmelia MOLONEY v. Edward Joseph PAPIE.
    2100459.
    Court of Civil Appeals of Alabama.
    April 20, 2012.

      Pamela Millsaps, Mobile, for appellant.
    Donald M. Briskman of Briskman & Binion, P.C., Mobile, for appellee.
   MOORE, Judge.

Sharon Carmelia Moloney (“the mother”) appeals from a judgment of the Mobile Circuit Court (“the trial court”) to the extent that it determined the amount of past-due child support owed by Edward Joseph Papie (“the father”), declined to award the mother interest on the amount of the father’s past-due child-support obligation, and declined to award the mother interest on the amount it ordered the father to pay toward the children’s “extraordinary medical, dental, or other health related expenses not covered by insurance.”

Facts and Procedural History

The parties were divorced by a judgment entered by the trial court on August 1, 2002. That judgment awarded custody of the parties’ three children to the mother and also provided, in pertinent part:

“4. The Court will order [the father] to pay to [the mother] the amount of $1,179.00 per month as child support. (Child support is a deviation from the Guidelines of Rule 32, [Ala. R. Jud. Admin.,] but includes the sum of $500.00 representing one-third of the private school tuition for the minor children.)
“6. [The mother] shall maintain health insurance on the minor children, and the parties are ordered equally responsible for any extraordinary medical, dental, or other health related expenses not covered by insurance.”

On June 5, 2009, the mother filed a petition requesting the trial court, among other things, to order the father to pay postminority educational support for the parties’ oldest child, to order the father to reimburse her for extraordinary medical expenses she had expended on behalf of the children, and to hold the father in contempt for his failure to pay child support. On July 21, 2009, the father answered the petition. On January 8, 2010, the mother amended her petition to include a claim for attorney fees. On January 21, 2010, the father answered the amended petition.

A trial was held on July 12, 2010. At the trial, the father testified that, before the divorce judgment was entered, the parties had agreed that he would pay monthly child support of $750 and that, after the divorce judgment was entered, the mother had told him that they did not have to go by the terms of the divorce judgment regarding the amount of child support the father had to pay. The mother testified that the father had paid $750 per month in child support but that he had not paid anything for a certain period. The father testified that the mother had agreed that he did not have to pay child support for that period in exchange for the mother’s being allowed to keep some personal property that had been awarded to the father in the divorce judgment. The mother denied having agreed to waive the father’s child-support payments. The mother testified that the father owed $50,132 in past-due child support. She also introduced into evidence her calculations indicating that she was due $20,132.57 in interest on the past-due child-support amount.

The mother also testified that the father owed $9,661 in extraordinary medical expenses. She testified that the father had not paid any part of the children’s medical expenses since the parties divorced. She testified that the father had been aware of the children’s medical issues but that she had not submitted any of the medical bills to the father because she had not wanted to argue with him about them.

It was undisputed that, in July 2005, the mother and the children moved from Mobile to Texas and that the children thereafter attended public school. The father testified that he wanted the trial court to allow him a credit of $500 per month toward his child-support obligation for the months that the children had not attended private school. The father also testified that the mother had not consulted him before seeking medical care for the children and that he had not agreed with certain of those expenses.

On July 16, 2010, the trial court entered a judgment stating, in pertinent part:

“3. THAT the Court finds that the [father] has not paid medical expenses which he was ordered to pay. Judgment is awarded in favor of the [mother] and against the [father] in the amount of $9,661.21. Due to the [mother’s] having not provided the [father] with copies of said bills or a demand for payment of said bills, the Court orders that the [father] pay said judgment at the rate of $200.00 per month, and no interest shall accrue on the aforesaid judgment.
“5. THAT judgment is awarded in favor of the [mother] and against the [father] in the amount of $50,132.00 representing child support which should have been paid but which was not paid, excluding interest.”

On August 13, 2010, the father filed a motion to alter, amend, or vacate the trial court’s judgment, arguing that he was due a credit of $500 per month for the months that the children had not attended private school toward the amount the trial court determined he owed in past-due child support. The mother responded to that motion on August 14, 2010, and, that same day, she filed a motion to alter, amend, or vacate the judgment. In her post-judgment motion, the mother alleged that the trial court had erred in failing to award her interest on the amount it determined the father owed her for past-due child support and on the amount it ordered the father to pay toward the children’s “extraordinary medical, dental, or other health related expenses not covered by insurance.”

On October 15, 2010, the trial court entered an order granting, in part, the father’s postjudgment motion requesting a credit toward his past-due child-support obligation. That order stated, in pertinent part:

“1. THAT the [father’s] Motion To Amend, Alter or Vacate is hereby granted in part. A judgment is entered for the sum of $20,434.00 in favor of the [mother] and against the [father] with the interest not calculated.”

Both the mother’s and the father’s post-judgment motions were otherwise denied to the extent that they were not addressed in that order. On November 12, 2010, the mother filed a motion to alter, amend, or vacate the trial court’s October 15, 2010, order, arguing that the trial court had erred by retroactively reducing the father’s child-support obligation when it determined the amount the father owed for past-due child support and by failing to award her interest on the amount it determined the father owed her for past-due child support. On January 4, 2011, the trial court denied the mother’s post-judgment motion directed to the October 15, 2010, order. On February 14, 2011, the mother filed her notice of appeal.

Discussion

I.

The mother first argues that, in determining the amount of the father’s past-due child-support obligation, the trial court erred by retroactively reducing the father’s monthly child-support obligation by $500 for the months that the children had not attended private school.

“It is well settled that child support payments become final judgments on the day they are due and may be collected as any other judgment is collected; and that payments that mature or become due before the filing of a petition to modify are not modifiable. See State ex rel. Howard v. Howard, 671 So.2d 83 (Ala.Civ.App.1995); Cunningham v. Cunningham, 641 So.2d 807 (Ala.Civ.App.1994); Glenn v. Glenn, 626 So.2d 638 (Ala.Civ.App.1993); Frasemer v. Frasemer, 578 So.2d 1346 (Ala.Civ.App.1991); Barnes v. State ex rel. State of Virginia, 558 So.2d 948 (Ala.Civ.App.1990); Endress v. Jones, 534 So.2d 307 (Ala.Civ.App.1988). Furthermore, it is well settled that a trial court has no power to forgive an accrued arrearage. See, State ex rel. McDaniel v. Miller, 659 So.2d 640 (Ala.Civ.App.1995); Hardy v. Hardy, 600 So.2d 1013 (Ala.Civ.App.1992), cert. denied, Ex parte Hardy, 600 So.2d 1016 (Ala.1992). Although the trial court has the discretion to give the obligated parent credit for money and gifts given to the child or for amounts expended while the child lived with the obligated parent or a third party, it may not discharge child support payments once they have matured and come due under the divorce judgment. See, Frasemer v. Frasemer, supra.

Ex parte State ex rel. Lamon, 702 So.2d 449, 450-51 (Ala.1997). “A parent may not unilaterally reduce court-ordered child support payments when the judgment does not provide for a reduction in child support.” State ex rel. Killingsworth v. Snell, 681 So.2d 620, 621 (Ala.Civ.App.1996). Neither can a custodial parent agree to waive court-ordered child support. McWhorter v. McWhorter, 705 So.2d 423, 426 (Ala.Civ.App.1997); see also Holland v. Holland, 406 So.2d 877, 879 (Ala.1981) (“[Pjarties to a divorce decree may not change or modify the decree merely by an agreement between themselves.”).

In the present case, the “[divorce] judgment [did] not provide for a reduction in child support” if the children were no longer attending private school. Snell, 681 So.2d at 621. Therefore, the father was not permitted to unilaterally reduce his child-support obligation and the mother was not permitted to waive or agree to modify the father’s child-support obligation. Id.; see also Holland, 406 So.2d at 879. Further, the father did not prove his entitlement to a credit for “money and gifts given to the child[ren] or for amounts expended while the ehild[ren] lived with the [father] or a third party.” Lamon, 702 So.2d at 451. Accordingly, we conclude that the trial court erred by effectively retroactively reducing the father’s monthly child-support obligation when it determined the amount the father owed for past-due child support.

II.

The mother next argues that the trial court erred in declining to award her interest on the amount it determined the father owed for past-due child support and on the amount it ordered the father to pay toward the children’s “extraordinary medical, dental, or other health related expenses not covered by insurance.” Because the payment of extraordinary medical expenses is an award of child support that is added to a parent’s basic child-support obligation, see Rule 32(C)(4), Ala. R. Jud. Admin. (“Additional Awards for Child Support. In addition to the recommended child-support order, the court may make additional awards for extraordinary medical, dental, and educational expenses.... ”), we review both of the mother’s arguments together.

“The requirement that a trial court award interest on unpaid child-support obligations is one of the more well-settled principles of family tew. See Corwin v. Corwin, 29 So.3d 913, 914 (Ala.Civ.App.2009) (trial court erred by failing to compute the amount of post-judgment interest due on the father’s child-support arrearage); T.L.D. v. C.G., 849 So.2d 200, 204 (Ala.Civ.App.2002) (‘By failing to award postjudgment interest on the child-support arrearage, the trial court erroneously applied the tew to the facts.’); and Walker v. Walker, 828 So.2d 943, 945 (Ala.Civ.App.2002) (‘[A] trial court with jurisdiction over proceedings to enforce an earlier child-support judgment is without authority to waive the imposition of statutorily imposed postjudgment interest upon such payments.’).” •

Faellaci v. Faellaci, [Ms. 2100752, Feb. 3, 2012] (Ala.Civ.App.2012) ; see also State ex rel. W.M.E. v. G.C., 73 So.3d 593, 596 (Ala.2011) (holding that a trial court must award postjudgment interest on child-support judgment). Based on the foregoing authorities, we conclude that the trial court erred in declining to award the mother interest on the amount it determined the father owed for past-due child support and on the amount it ordered the father to pay toward the children’s “extraordinary medical, dental, or other health related expenses not covered by insurance.” Although we recognize that the trial court declined to award interest on the medical expenses because the mother had failed to present the bills to the father or to demand payment of those expenses, the mother’s inaction should not deprive the children of the interest that is due on a payment that was owed for their benefit. See, e.g., Neny v. Neny, 989 So.2d 565, 568-69 (Ala.Civ.App.2008) (stating that clean-hands doctrine did not bar the mother in that case from asserting a claim for child support).

Conclusion

Based on the foregoing, we reverse the judgment of the trial court and remand this cause for the entry of a judgment consistent with this opinion.

The mother’s request for the award of an attorney fee on appeal is denied.

REVERSED AND REMANDED.

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

      . The trial court ruled in favor of the mother on her request for postminority educational support for the parties’ oldest child. On appeal, neither party raises an issue pertaining to that ruling.

      . The father argues in his brief to this court that the trial court did not have jurisdiction to entertain a second postjudgment motion filed by the mother and, thus, that the filing of that motion did not toll the time for the mother to file her notice of appeal. We note, however, that because the trial court had granted the father’s postjudgment motion in part, thereby aggrieving the mother, the mother was entitled to file a second postjudgment motion and that motion effectively tolled the time to file a notice of appeal. See, e.g., J.H.F. v. P.S.F., 835 So.2d 1024, 1026 (Ala.Civ.App.2002) (when party filed second postjudgment motion after having been aggrieved by the granting of a postjudgment motion filed by the other party, the second postjudgment motion effectively tolled the time to appeal); and Woodall v. Woodall, 506 So.2d 1005, 1007 (Ala.Civ.App.1987) ("In situations where a judge has granted a postjudgment motion for one party, the nonmoving party aggrieved by the motion has the right under our rules to file his or her own postjudgment motions.”).

      . We note that, in the October 15, 2010, post-judgment order entered in response to the father’s postjudgment motion, the trial court amended its judgment by awarding the mother a judgment against the father in the amount of $20,434, "with the interest not calculated.” Although it appears that the trial court was merely declining to calculate the amount of interest owed by the father on the amount of his past-due child-support obligation, not that it was precluding the collection of such interest, such an intention does not change the fact that no specific amount of interest was awarded.


author: THOMPSON, Presiding Judge.

text:
    MIN QUIN SHAO, as executrix of the estate of Lincoln N. Jenkins v. Floyd CORLEY and Susan Corley.
    2110133.
    Court of Civil Appeals of Alabama.
    April 20, 2012.

      Edward P. Turner, Jr., and Martin R. Pearson of Turner, Onderdonk, Kim-brough, Howell, Huggins & Bradley, P.A., Chatom, for appellant.
    Submitted on appellant’s brief only.
   THOMPSON, Presiding Judge.

Min Quin Shao, as executrix of the estate of Lincoln N. Jenkins, appeals from the judgment of the Washington Circuit Court ordering Shao to convey to Floyd Corley (“Floyd”) and Susan Corley (“Susan”) a certain parcel of real property located in Malcolm. For the reasons stated herein, we reverse.

In the late 1990s or early 2000s, Floyd purchased a parcel of real property in Malcolm (“Lot 15”) from Jenkins. A year or two later, he bought an adjacent lot (“Lot 14”) from Jenkins. In 2005, the Corleys moved onto those parcels and began residing there.

According to his trial testimony, Floyd contracted to purchase from Jenkins a third parcel of property (“the third parcel”) located adjacent to and behind Lot 14 and Lot 15. In a document dated February 25, 2005, related to the sale of the third parcel and signed by Jenkins, Jenkins wrote: “Lincoln A. Jenkins received from [illegible] Corley $750 as a deposit on land. Balance of $1,450 to be paid when deed delivered. Also we will 50/50 the survey cost.” Floyd testified that, pursuant to the above agreement, he paid Jenkins $750. He stated that Jenkins told him he would have the third parcel surveyed and would call him when he had the deed ready. Floyd testified that, at the time Jenkins signed the document, a survey had not been prepared for the third parcel and that there were no markers on the ground at that time indicating the boundary lines of the parcel. Floyd stated that he could not identify the third parcel before Jenkins had it surveyed.

Floyd testified that Jenkins later delivered to him a copy of a survey of the third parcel, on which, the Corleys assert, that parcel was designated as “Parcel 88,” that Jenkins had had prepared and that, after delivering the survey, Jenkins later called Floyd and told him that the deed to the third parcel was ready. Jenkins died, however, before Floyd could obtain the deed from him.

The Corleys filed a claim against Jenkins’s estate in the Washington Probate Court, and, in October 2009, removed the administration of the estate to the Washington Circuit Court. In the circuit court, the Corleys filed a complaint in which they sought a judgment requiring that Jenkins’s estate specifically perform the contract for the conveyance of the third parcel, or, should the court deny specific performance, awarding compensatory damages of $750 for breach of contract. Shao, as the executrix of the estate, filed an answer in which she, among other things, raised the Statute of Frauds as an affirmative defense.

The circuit court held a bench trial of the action on May 9, 2011, at which only Floyd testified. On July 8, 2011, the circuit court entered a final judgment in which it ordered Shao to execute a conveyance of Parcel 88 to Floyd and Susan upon their payment of $1,450 to Jenkins’s estate. Rejecting Shao’s contention that the Statute of Frauds barred specific enforcement of the agreement to convey Parcel 88, the circuit court wrote:

“The general rule is that a contract for sale of land, to satisfy the statute of frauds, must describe the land with such certainty that it can be identified without resort to oral evidence. See Shannon v. Wisdom, 171 Ala. 409, 55 So. 102 (1911). However, a general description may be made specific and certain by parol [evidence] and concurrent facts and circumstances sufficient to that end. Goodwyn v. Jones, 288 Ala. 71, 257 So.2d 320 (1971).
“While the contract does not contain a technical description of the lands contracted for, it does contain facts sufficient to identify them. The parties agreed in the writing to have a survey of the lands conducted and Lincoln A. Jenkins provided a copy of the plat of survey to [Floyd] prior to Jenkins’s death. The contract furnished the means of identification (the survey), the applicable principle being that that is certain which can be made certain. See Goodwyn v. Jones, supra, citing 23 A.L.R.2d, Statute of Frauds, Section 2.”

Shao filed a motion to alter, amend, or vacate the judgment, which the circuit court denied. Shao filed an appeal, which our supreme court transferred to this court pursuant to § 12-2-7(6), Ala.Code 1975.

Shao contends that the circuit court erred in ordering her to convey Parcel 88 to the Corleys because the written contract on which they relied did not satisfy the Statute of Frauds due to the insufficiency of the description of the land being sold. The facts related to this issue are undisputed; thus, this appeal presents a pure question of law, which this court reviews de novo. See Simcala, Inc. v. American Coal Trade, Inc., 821 So.2d 197, 200 (Ala.2001).

Section 8-9-2(5), Ala.Code 1975, the Statute of Frauds, provides, in pertinent part:

“In the following cases, every agreement is void unless such agreement or some note or memorandum thereof expressing the consideration is in writing and subscribed by the party to be charged therewith or some other person by him thereunto lawfully authorized in writing:
“(5) Every contract for the sale of lands, tenements or hereditaments, or of any interest therein, except leases for a term not longer than one year, unless the purchase money, or a portion thereof is paid and the purchaser is put in possession of the land by the seller.... ”

In Goodwyn v. Jones, 288 Ala. 71, 257 So.2d 320 (1971), our supreme court stated that, generally, “a contract for sale of land, to satisfy the statute of frauds, must describe the land with such certainty that it can be identified without resort to oral evidence.” 288 Ala. at 75, 257 So.2d at 323. Stating that this general rule “is not unqualified and inflexible,” however, the court continued:

“The principle is discussed in 23 A.L.R.2d, Statute of Frauds, § 2, where the test for sufficiency is said to be:
“ ‘... does the writing furnish the means of identification, or, as some cases have it, does it provide the “key” to the identification, the applicable principle being that that is certain which can be made certain....
‘... The initial question, it seems, is not whether the words are clearly and indisputably sufficient, but rather whether they are such as will entitle the claimant to go forward with his proofs and show if he can that in the light of proper evidence the subject of sale is sufficiently designated.’ ”

288 Ala. at 76, 257 So.2d at 323. Thus, in Goodwyn, the supreme court held that a description of land contained in a sales contract sufficiently complied with the Statute of Frauds, despite a lack of specificity in the description. The court wrote:

“In the instant case, each complainant was occupying a certain area of land within the 34 acres. The lines of the occupancy were impressed by cleared land and improvements. Respondent elected by adoption of an instrument prepared by L & N to offer each complainant the opportunity to purchase this occupied area upon payment of a sum set forth in the offer. Each complainant was in possession of only one occupied area within the Sk acres. Respondent designated the area to be purchased, namely the occupied area. We think it was permissible to identify the occupied area by competent evidence, and that the respondent, having elected to designate the area by a general term, cannot now complain against evidence to establish by metes and bounds, or other description, the occupied area.”

288 Ala. at 77, 257 So.2d at 325 (emphasis added).

In Mullinax v. Galen-Marshall, Inc., 642 So.2d 431 (Ala.1994), the trial court concluded that the description of real property contained in a contract for the sale of land was insufficient to comply with the Statute of Frauds. Entering a summary judgment in favor of the sellers in the purchasers’ action for specific performance of the sales contract, the trial court wrote:

“ ‘It is undisputed from the documents file, and the testimony presented, that the alleged contract or contracts do not contain any legal description. The only reference in either written document is “see legal description.” There is revealed in the depositions, the fact that the parties had not been able to settle on a legal description.’ ”

642 So.2d at 432. On appeal, our supreme court wrote:

“The trial judgment correctly observed that the Statute of Frauds does not invalidate a contract merely because it contains ' “a general uncertain description[, where that description] can be made specific and certain by parol evidence of concurrent facts and circumstances sufficient to that end.’” Goodwyn v. Jones, 288 Ala. 71, 75, 257 So.2d 320, 324 (1971) (emphasis added) (quoting Dobson v. Deason, 248 Ala. 496, 498, 28 So.2d 418, 419 (1946)). However, the instrument must at least ‘“furnish the means of identification, or, as some cases have it, ... provide the ‘key’ to the identification, the applicable principle being that that is certain which can be made certain.” Goodwyn, 288 Ala. at 76, 257 So.2d at 324 (emphasis added) (quoting Annotation, Statute Frauds-Description of Land, 23 A.L.R.2d 6, 12-13 (1952)).
“The instruments involved in this case ... are not so directly linked to clearly established facts and circumstances that the description of the property can be ‘made certain.’ ...
“It is undisputed that the instruments involved in this case do not describe the property to which they refer. More significantly, the ‘legal description’ referenced in the instruments could refer to either of two parcels of significantly different dimensions.”

642 So.2d at 432-34. Thus, the supreme court affirmed the trial court’s summary judgment refusing to specifically enforce the sales contract on which the purchasers relied.

In the recent case of Nix v. Wick, 66 So.3d 209 (Ala.2010), our supreme court distinguished its holding in Goodwyn and concluded that the contract for the sale of land at issue in that case violated the Statute of Frauds because it insufficiently identified the land that was the subject of the contract. In Nix, the parties signed an agreement whereby the plaintiffs purchased a house and four and a half acres of land and a contract containing an option to purchase adjoining property described as “at least five acres.” The option contract contained a requirement that the sellers would have the adjoining property surveyed. Shortly thereafter, the parties signed a sales contract that provided:

“ ‘The [purchasers] hereby agree to purchase and the [sellers] hereby agree to sell the following described lot or other unimproved land and appurtenances thereto ... situated in the City of Gardendale, County of Jefferson, Aabama on the terms stated below: Address: adjacent to 296 West Shugart Ridge and legally described as Lot_, Block_Survey_Map Book_Page_
“‘1A. THE PURCHASE PRICE shall be $32,500 per acre (at least five acres)....’”

66 So.3d at 211. That contract referenced, but failed to attach a copy of, the option contract into which the parties had previously entered.

After the sellers did not convey the property to the purchasers, the purchasers filed an action for specific performance. The defendants in that action (the sellers and another individual who had an ownership interest in the property in dispute) raised the Statute of Frauds as a defense on the basis that the contract for the sale of the property in dispute did not adequately describe the property. The trial court agreed and entered a summary judgment in favor of the defendants.

On appeal, the purchasers contended, among other things, that the fact that a survey was called for in the option contract satisfied the Statute of Frauds, despite the lack of a specific description of the property in the sales contract. Rejecting that contention, our supreme court, after examining the holdings in Goodwyn and Mullinax, wrote:

“In this case, the [purchasers] contend, based on the language in the [option contract], that the survey contemplated by the [option contract] ‘is the key’ that satisfies the exception stated in Goodwyn and Mullinax. Specifically, they argue that the [defendants] ‘admitted at their depositions that a surveyor could go out and fulfill the contractual requirements of surveying and rezoning the acreage to the left of the house, including the 40 feet of road frontage, and sell the land to’ the [the purchasers] .... The [defendants], however, correctly note that the survey relied on by the [purchasers] does not yet exist and did not exist at the time the [sales] contract was executed. The exception stated in Goodwyn and Mullinax allows a general description to be made certain by ‘concurrent facts and circumstances.’ Goodwyn, 288 Ala. at 75, 257 So.2d at 323 (emphasis added). The general description of the property referenced must be capable of being made certain at the time the parties contracted. Reference to a description not yet in existence cannot bring the [sales] contract within the exception.
“Additionally, as in Mullinax, the language of the [sales] contract does not sufficiently identify the land to be sold; indeed, the [sales] contract does not describe the land to be sold. The only identification of the land in the contract could refer to any number of ‘at least’ five-acre configurations of the land adjacent to the property located at 296 West Shugart Ridge. Furthermore, from the deposition testimony of [two of the parties], it is apparent that the land discussed by the [sellers] and the [purchasers] was described in terms of potential boundary lines; the parties had not settled on any ‘area that was well demarcated and recognized.’ Mullinax, 642 So.2d at 433-34. Therefore, unlike the instrument in Goodwyn, the [sales] contract is ‘not so directly linked to clearly established facts and circumstances that the description of the property can be “made certain.”’ Mullinax, 642 So.2d at 433. Accordingly, the [sales] contract does not ‘furnish the means of identification,’ Goodwyn, 288 Ala. at 75, 257 So.2d at 323, of the land to be sold, and the [purchasers] have not shown that the [sales] contract falls within this exception to the Statute of Frauds.”

Nix, 66 So.3d at 214-15. Thus, our supreme court affirmed the trial court’s summary judgment in favor of the defendants.

In the present case, the document relating to the sale of the third parcel to the Corleys describes the parcel only as “land”; nothing in the document describes the location or dimensions of the parcel in any way. The “key” to the description of the land on which the circuit court relied in finding that the document complied with the Statute of Frauds was the reference in the document to a survey, the cost of which the parties would share. However, the survey had not yet been prepared at the time the document was executed. Thus, as our supreme court concluded in Nix, the survey in the present case cannot constitute evidence of “concurrent facts and circumstances” that could make certain the general description of the property that was to be sold to the Corleys. As the Nix court stated, for the Goodwyn exception to apply, “[t]he general description of the property referenced must be capable of being made certain at the time the parties contracted.” Nix, 66 So.3d at 215 (emphasis added).

Based on the foregoing, we conclude that the contract for the sale of the third parcel was unenforceable by virtue of the Statute of Frauds and, as a result, that the circuit court erred when it ordered specific performance of that contract. The circuit court’s judgment is therefore reversed, and the cause is remanded for further proceedings, including consideration of the alternative demand for relief the Corleys asserted in their complaint.

REVERSED AND REMANDED.

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

      . The Corleys refer to the third parcel as "Parcel 88” because, they assert, that parcel was denominated as such on a survey that was prepared after Floyd had agreed to purchase the parcel from Jenkins.

      . We note that, in the circuit court, the Cor-leys argued for the application of the part-performance exception to the Statute of Frauds. Under that exception, the Statute of Frauds does not apply to the sale of real property when "the purchase money, or a portion thereof is paid and the purchaser is put in possession of the land by the seller.” § 8-9-2(5), Ala.Code 1975. Although there was evidence indicating that the Corleys had paid a portion of the purchase price to Jenkins, there was no evidence elicited at trial that the Corleys had been put in possession of the third parcel. Because the Corleys bore the burden of proof on that issue, see Simmons v. Simmons, [Ms. 2100017, Dec. 16, 2011] - So.3d -, - (Ala.Civ.App.2011), the circuit court's judgment cannot be affirmed on that basis.