author: PER CURIAM.

text:
    James ODOM v. Renee ODOM.
    2091101.
    Court of Civil Appeals of Alabama.
    Feb. 25, 2011.
    James Odom, pro se.
    Submitted on appellant’s brief only.
   PER CURIAM.

James Odom (“the former husband”) and Renee Odom (“the former wife”) were divorced by a judgment of the DeKalb Circuit Court in 1996; the record indicates that, the former husband was directed to pay $200 per month in support for the parties’ children. The trial court determined in a contempt proceeding brought by the former wife in 1998 that the former husband’s support payments were in arrears, and it rendered an order for $8,453 plus interest in the former wife’s favor; the case-action-summary sheet from that proceeding indicates that that proceeding ultimately terminated upon the rendering of a “bench verdict.” No postjudgment motions were filed, and no appeal was taken.

On July 20, 2010, the former husband filed what he styled as a “motion for modification” in which he sought a modification of the support provisions of the divorce judgment. In his “motion,” the former husband averred, in pertinent part, that a material change in circumstances had been “visited upon” him in the form of his incarceration by the Alabama Department of Corrections, in whose custody “he is now residing in service of consecutive 20-year sentences.” He further averred that he had no income or other means by which to comply with the support requirements of the divorce judgment. Based upon those averments, the former husband requested that his support obligation be suspended and that the trial court “forgive” all interest on any existing arrearages. The record does not reflect that the former husband paid a docket fee or that he filed a verified statement of substantial hardship seeking waiver of prepayment of any applicable docket fee. Nonetheless, the trial court purported to rule on the former husband’s “motion” by affixing the word “Denied” on the face of that filing on July 28, 2010, and that ruling was entered on August 2, 2010.

The former husband filed a notice of appeal from the decision of the trial court, asserting that the trial court had erred in “summarily dismissing” his “motion.” However, because we conclude that the trial court was without jurisdiction to act on the former husband’s “motion,” we must dismiss this appeal ex mero motu as having been taken from a void judgment or order. See Vann v. Cook, 989 So.2d 556, 559 (Ala.Civ.App.2008).

In Vann, a domestic-relations proceeding concluded in April 2005 with the entry of a final judgment of divorce based upon the father’s failure to answer or defend; however, several months later, the parties to that proceeding submitted various papers to the trial court in which both parties sought enforcement of certain provisions of that judgment and injunctive relief and in which the father sought modification of the judgment. Although neither party filed a docketing fee or a statement of substantial hardship, those filings ultimately culminated in the trial court’s purporting to alter the custody of the parties’ minor child. 989 So.2d at 557-58. One of the parties, after having appealed from that ruling, suggested to this court the absence of the trial court’s jurisdiction to act. In dismissing that appeal with instructions, we set forth the following reasoning that is similarly applicable in this case:

“Section 12-19-70, Ala.Code 1975, provides that ‘a consolidated civil filing fee, known as a docket fee, [shall be] collected ... at the time a complaint is filed in circuit court or in district court,’ although that payment ‘may be waived initially and taxed as costs at the conclusion of the case’ if ‘[a] verified statement of substantial hardship’ is filed and is approved by the trial court. In turn, § 12 — 19—71(a)(7), Ala.Code 1975, specifies that a filing fee of $248 is to be collected ‘for cases filed in the domestic relations docket of the circuit court seeking to modify or enforce an existing domestic relations court order ’ (emphasis added [in Vann ]). The payment of a filing fee or the filing of a court-approved verified statement of substantial hardship is a jurisdictional prerequisite to the commencement of an action. See De-Gas, Inc. v. Midland Res., 470 So.2d 1218, 1222 (Ala.1985); see also Farmer v. Farmer, 842 So.2d 679, 681 (Ala.Civ.App.2002) (‘The failure to pay the filing or docketing fee is a jurisdictional defect.’).
“In this case, the record does not reflect that the mother paid any docketing fee with respect to her August 2005 motion to enforce the divorce judgment or her September 2005 petition for protection from abuse. Likewise, the record does not reflect that the father paid any filing fee with respect, to his September 2005 motion to enforce the divorce judgment or his December 2005 petition for custody. Each of those filings may be characterized as ‘cases ... in the domestic relations docket of the circuit court seeking to modify or enforce an existing domestic relations court order’ under § 12-19-71(a)(7), yet on none of those occasions was the appropriate docketing fee paid.
“The trial court, in exercising jurisdiction over the parties’ claims asserted after the entry of its default judgment in April 2005, acted outside its jurisdiction because the parties did not pay the docketing fees required under Ala.Code 1975, § 12-19-70 et seq., for that court to acquire subject-matter jurisdiction. A judgment entered by a court lacking subject-matter jurisdiction is absolutely void and will not support an appeal; an appellate court must dismiss an attempted appeal from such a void judgment. Hunt Transition & Inaugural Fund, Inc. v. Grenier, 782 So.2d 270, 274 (Ala.2000). The mother’s appeal is, therefore, dismissed, and the trial court is instructed to vacate all orders entered after the April 2005 default judgment. See, e.g., State Dep’t of Revenue v. Zegarelli, 676 So.2d 354, 356 (Ala.Civ.App.1996). Any further pleadings filed in the trial court in which either party may seek to enforce or modify that court’s April 2005 default judgment should be accompanied by the requisite filing fee.”

989 So.2d at 558-60.

Similarly, the trial court in this case acted outside its discretion in exercising jurisdiction to rule upon the “motion” filed by the former husband, which plainly seeks to modify the support provisions of an existing domestic-relations court order within the meaning of Ala.Code 1975, § 12-19-71(a)(7). Unless and until the former husband complies with Ala.Code 1975, § 12-12-70, by either paying the applicable docket fee or filing a verified statement of substantial hardship that is approved by the trial court, that court will be without subject-matter jurisdiction to consider questions such as whether the incarceration of the former husband amounts to a material change in circumstances warranting a modification of child support or whether the former husband should be deemed voluntarily unemployed under Rule 32(B)(5), Ala. R. Jud. Admin. See generally Suggs v. Suggs, 54 So.3d 921, 924 (Ala.Civ.App.2010).

The appeal is dismissed with instructions to the trial court to vacate its ruling entered on August 2, 2010.

APPEAL DISMISSED WITH INSTRUCTIONS TO THE CIRCUIT COURT.

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

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


source: Caselaw Access Project

author: PER CURIAM. THOMAS, Judge,

license: Public Domain

text:
    Kelli Faith GROCHOLSKI v. William Allen GROCHOLSKI.
    2090851.
    Court of Civil Appeals of Alabama.
    Aug. 5, 2011.
    Rehearing Denied Oct. 21, 2011.
    Certiorari Denied Feb. 10, 2012 Alabama Supreme Court 1110134.

      Mary Virginia Buck, Northport, for appellant.
    Jane L. Calamusa and Bryan S. Brin-yark of Rosen Harwood, P.A., Tuscaloosa, for appellee.
   PER CURIAM.

Kelli Faith Grocholski (“the wife”) appeals the Fayette Circuit Court’s judgment divorcing her from William Allen Grochol-ski (“the husband”) and dividing the parties’ marital estate. We affirm in part and reverse in part.

The parties were married on August 17, 1988. The parties have two children. The older child was born of the wife’s previous marriage, and the husband adopted him; the younger child was born of the parties’ marriage. Both of the children were adults at the time of the trial. Therefore, the only issue tried before the trial court was the division of marital assets and debts.

The parties separated in January 2007, and the husband filed a complaint for a divorce on July 30, 2008. The trial court conducted a bench trial over the course of two days in March 2010, at which ore tenus and documentary evidence were presented. That evidence tended to show the following pertinent facts.

The husband, who was 63 years old at the time of the trial, owned and operated his own law practice in Fayette; the husband had worked as an attorney throughout the course of the parties’ marriage. The husband testified that his income for 2008 had been $65,949 and that his income for 2009 had been $39,043. The wife disputed the husband’s testimony concerning the husband’s income, indicating that, “on a bad year, a slow year, [the husband] probably made [$]200,000.” Her opinion as to the husband’s income was based largely on the parties’ lifestyle.

The husband’s “Social Security Statement,” dated June 19, 2009, was submitted into evidence. That document indicated that the husband’s average “taxed Medicare earnings” from 1997 to 2007 was approximately $33,000. However, both parties agreed that the husband had more income than was reflected in that document. Furthermore, both parties testified that the husband was paid in cash for some of the legal work he performed. The husband testified that he “didn’t do as good a job as [he] probably should have, but [that he] did a better job than [he had] done in the past,” of keeping up with the amount of cash that was coming into his law firm. The husband also admitted that there probably had been some inaccuracies in his past tax returns.

Other than occasionally working for the husband’s law practice, the wife, who was 44 years old at the time of the trial, had not worked outside of the home during the course of the parties’ marriage. The wife testified that the husband had not wanted her to work outside of the home and that she had honored that request. During the course of the parties’ marriage, the wife had obtained a college education and a master’s degree from the University of Alabama. The wife’s deposition testimony, some of which was read at trial, indicated that because of a herniated disk her standing and lifting abilities are impaired but that she believed she could be employed so long as the employment did not require her to stand for long periods or to lift too much. However, at trial, the wife testified that she had been “sedated” during her deposition. The wife testified that she had not searched for employment during the parties’ separation because she had spent significant amounts of her time receiving “pain shots” and “trigger points” and attending physical therapy. The wife testified that she had “a lot of lower back pain,” “some upper back pain,” “a lot of leg cramps,” “a lot of bladder issues,” migraine headaches, and “just a lot of pelvic issues, chronic pelvic issues that cause[ ] a lot of great pain.” The wife testified that she was receiving treatment for each of the above-listed ailments. The husband testified that he thought that the wife could work; however, he testified that she could not stand for long periods.

It is undisputed that the parties owned a substantial amount of real and personal property, including multiple parcels of land, retirement and brokerage accounts, and certificates of deposit worth approximately $350,000. At the time of the trial, the parties owned a 2002 Toyota Sequoia sport-utility vehicle, a 1997 Mercedes Benz E320 automobile, a 2000 Ford F-150 pickup truck, a 1978 Chevrolet Corvette automobile, a 2000 Chevrolet 1500 pickup truck, a 1997 Ford F-150 pickup truck, and a 1978 GMC pickup truck. The parties also owned a Sea-Doo personal watercraft, a John Deere 950 tractor, a 1998 EGO golf cart, a 16-foot 1978 VIP powerboat along with a boat trailer, and a “pull-behind” trailer. In addition, the wife owned jewelry, five pieces of which had a combined “estimated replacement value” of $88,500. The parties apparently acquired all the above-mentioned property, whether real or personal, either through inheritance or by paying cash. The parties had no debt associated with any of the property.

The parties were members of the Fay-ette County Country Club, where they owned a “golf shed.” The husband testified that the parties would take one vacation annually; the wife testified that the parties would take multiple vacations annually. The parties also were members of a booster club associated with University of Alabama athletics that permitted them to purchase four sets of season tickets to University of Alabama football games.

Although the parties had no debt at the time they separated, both of them incurred debt during the pendency of the divorce proceeding. The husband testified that, since filing for divorce from the wife, he had incurred $64,785.89 in “bank debt” at Citizens Bank of Fayette. Further, Fowler Oil Company billed the husband $2,799.74 for gasoline charges. The husband testified that he had opened an account with Fowler Oil Company so that the wife and one of his sons could purchase gasoline during the parties’ separation. The parties had also incurred $4,684.63 in charges at a pharmacy.

From the time that the husband filed for a divorce to the time of trial, the wife had borrowed $86,000. She testified that she had used the borrowed funds to pay for living expenses and attorney’s fees. The wife also testified that she had charged to a credit card approximately $1,000 for medical co-pays since the husband had filed for a divorce.

The husband testified that from the time the parties separated until he filed for a divorce, the wife had used a credit card for her monthly expenses. The husband testified that the monthly charges for the wife’s credit card were approximately $1,000, which he paid. The husband also testified that he had given the wife approximately $200 in cash per week. The wife introduced a budget at trial indicating that her monthly expenses were $7,379.91; the wife testified extensively as to how she arrived at that amount. She stated that she was requesting an award of at least $5,000 per month as alimony.

The parties’ younger child was enrolled in college, and the husband had been paying for his tuition and agreed to continue to do so. The husband also indicated that he would pay for the child’s health insurance while he was enrolled in college.

The trial court entered a divorce judgment on May 3, 2010. Among other things, the trial court divided the marital assets in a manner slightly favoring the wife, and it ordered the husband to pay the wife $1,500 per month in periodic alimony. The trial court ordered the husband to pay the debt incurred in his name that was owed to Citizens Bank and the debt to Fowler Oil, and it ordered the wife to pay the 86,000 debt she had incurred since the parties’ separation, as well as the debt owed to the pharmacy. The trial court also ordered the husband to pay for all the parties’ youngest son’s college expenses and to pay $10,000 toward the wife’s attorney’s fees. The wife appeals.

The standard by which this court reviews a judgment following an ore tenus proceeding is well settled.

“ ‘When ore tenus evidence is presented, a presumption of correctness exists as to the trial court’s findings on issues of fact; its judgment based on these findings of fact will not be disturbed unless it is clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. J & M Bail Bonding Co. v. Hayes, 748 So.2d 198 (Ala.1999); Gaston v. Ames, 514 So.2d 877 (Ala.1987).... However, when the trial court improperly applies the law to [the] facts, no presumption of correctness exists as to the trial court’s judgment. Allstate Ins. Co. v. Skelton, 675 So.2d 377 (Ala.1996); Marvin’s, Inc. v. Robertson, 608 So.2d 391 (Ala.1992); Gaston, 514 So.2d at 878; Smith v. Style Advertising, Inc., 470 So.2d 1194 (Ala.1985); League v. McDonald, 355 So.2d 695 (Ala.1978). “Questions of law are not subject to the ore tenus standard of review.” Reed v. Board of Trustees for Alabama State Univ., 778 So.2d 791, 793 n. 2 (Ala.2000). A trial court’s conclusions on legal issues carry no presumption of correctness on appeal. Ex parte Cash, 624 So.2d 576, 577 (Ala.1993). This court reviews the application of law to facts de novo. Allstate, 675 So.2d at 379 (“[Wjhere the facts before the trial court are essentially undisputed and the controversy involves questions of law for the court to consider, the [trial] court’s judgment carries no presumption of correctness.”).’ ”

Farmers Ins. Co. v. Price-Williams Assoc., Inc., 873 So.2d 252, 254-55 (Ala.Civ.App.2003). (quoting City of Prattville v. Post, 831 So.2d 622, 627-28 (Ala.Civ.App.2002)).

The wife first argues that the trial court erred in not'allowing her to discover the husband’s cellular-telephone records. “Discovery matters are within the trial court’s sound discretion, and this Court will not reverse a trial court’s ruling on a discovery issue unless the trial court has clearly exceeded its discretion.” Ex parte Ocwen Fed. Bank, FSB, 872 So.2d 810, 813 (Ala.2003) (citing Home Ins. Co. v. Rice, 585 So.2d 859, 862 (Ala.1991)).

In December 2008, the wife filed a notice of intent to serve a third-party subpoena on the husband’s cellular-telephone carrier. The husband objected to the issuance of the third-party subpoena on the basis that some of the cellular-telephone records were subject to attorney-client privilege. On February 19, 2009, the trial court entered an order allowing the third-party subpoena to be issued to the husband’s cellular-telephone carrier; however, the trial court ordered that the cellular-telephone records be delivered directly to the trial court so that the husband’s counsel could review the records and identify any parts of the records that the husband contended were covered by attorney-client privilege. The husband’s cellular-telephone records were not delivered to the trial court until the day before trial — more than one year after the trial court ordered that the subpoena could be issued. At the trial, the trial court declined to allow the wife to discover the cellular-telephone records because, the trial court stated, of the lack of time for the husband’s counsel to review the records and because the telephone records were not relevant to any issues in the case.

Alabama recognizes a broad right of discovery. “Discovery should be permitted if there is any likelihood that the information sought will aid the party seeking discovery in the pursuit of his claim or defense. Discovery is not limited to matters that would be admissible as evidence in the trial of the lawsuit.” Ex parte AMI West Alabama Gen. Hosp., 582 So.2d 484, 485 (Ala.1991). The wife argues that the telephone records were relevant to whether the husband had committed adultery and that adultery was an issue in the case. However, the only reference to adultery in the wife’s filings or testimony was a single question in a set of interrogatories. The wife did not offer any testimony at trial relating to any alleged adultery of the husband or to any names or telephone numbers of alleged paramours. Thus, as the trial court determined, adultery by the husband does not appear to have been an issue in the case. Because the wife did not assert any claims of adultery by the husband, and because the wife did not provide any testimony relating to the issue of adultery by the husband, we cannot conclude that the trial court erred when it determined that the cellular-telephone records were not relevant to the issues in the case and, accordingly, declined to allow the wife to discover the husband’s cellular-telephone records.

The wife next argues that the trial court’s award of periodic alimony was insufficient. The wife also argues that the trial court erred in its allocation of the parties’ debt.

“An award of alimony and the division of marital property are considered together and are matters within the discretion of the trial court. Carter v. Carter, 934 So.2d 406 (Ala.Civ.App.2005) (citing Ex parte Durbin, 818 So.2d 404, 408 (Ala.2001)). Because those matters are interrelated, the entire judgment must be considered in determining whether the trial court exceeded its discretion as to either issue. See [Harmon v.] Harmon, [928 So.2d 295 (Ala.Civ.App.2005)]. Furthermore, a property division does not have to be equal, but it must be equitable, J.H.F. v. P.S.F., 835 So.2d 1024 (Ala.Civ.App.2002), and it must be ‘supported by the particular facts of the case,’ Ex parte Elliott, 782 So.2d 308, 311 (Ala.2000). The determination of what is equitable is a matter of discretion for the trial court. See Carter, supra.

Clements v. Clements, 990 So.2d 383, 390 (Ala.Civ.App.2007). The trial court should consider several factors when determining a party’s need for alimony and when dividing marital property, including “ ‘the length of the marriage, the age and health of the parties, the future employment prospects of the parties, the source, value, and type of property owned, and the standard of living to which the parties have become accustomed during the marriage.’ ” Ex parte Elliott, 782 So.2d 308, 311 (Ala.2000) (quoting Nowell v. Nowell, 474 So.2d 1128, 1129 (Ala.Civ.App.1985)).

With respect to its award of periodic alimony, the trial court stated in its judgment:

“At trial, the Husband was 63 and the Wife was 44. The Wife described various health conditions that she stated interfered with her ability to become employed, but the evidence shows that she is highly educated and intelligent and can reasonably be expected to obtain gainful employment in the future. She did not work during most of the marriage, however, and periodic alimony is due to be awarded. In view of the factors listed in this order as well as other factors established by the evidence (including but not limited to the income analysis as previously noted), the Husband shall pay the sum of one thousand five hundred dollars ($1,500) in periodic alimony to the Wife each month, with each payment due by the 5th day of each month. While this is substantially less than the $5,000 to $7,000 the Wife sought, it is the appropriate amount supported by the evidence presented in view of the income evidence.”

The trial court’s analysis of the parties’ income appeared earlier in its judgment. In that part of the judgment, the trial court stated:

“Through most of the marriage, the parties appear to have enjoyed a relatively affluent lifestyle. The only identified substantive source of income was from the Husband’s law practice. The evidence at trial established that the practice has operated principally in cash in both receipts and expenditures with the Wife’s knowledge and consent. Throughout the marriage, the Husband routinely left cash at his law office for the Wife to pick up and spend. The Husband testified he rarely bills clients for services, does not necessarily maintain receipts, engages in limited bookkeeping activity, and could not estimate how much cash was taken in on an annual basis. At trial, the Wife guessed at the amount of money she thinks the Husband made based on the lifestyle they led; however, the court cannot make an award of alimony or other division based on speculation and conjecture. The joint tax return of the parties (acknowledged and adopted by the Wife during the marriage) contradicts the assertion that more money was received. An analysis of the Wife’s Trial Exhibit 1 and other exhibits showed that the Husband’s reported average annual income for the years 1997-2009 (a 13-year period) was approximately $34,000. This included a year (2004), however, where his reported income was several times greater than prior or subsequent years. Excluding 2004 (which could be considered an outlier), the reported income averaged approximately $26,000. Further, these amounts include substantial interest income each year from the investments that are being divided by this order. Therefore, the income reported by the parties cannot be reconciled with the Wife’s guesses about the actual income, nor can the amounts justify the expenses being claimed by the Wife.
“The Husband testified that the economic climate in the location where he practices had drastically changed for the worse in the recent years. It is known that the recession has caused significant decreases in income for many attorneys, causing many to close their practices. The Husband further testified that his income was greater when he was able to obtain personal injury cases in prior years. The Husband testified that those cases were not coming into his office based on advertising from other firms. The explanation given by the Husband about the decrease in income was supported by the evidence. Further, the Husband was 63 at the time of trial. Case law establishes that the court cannot make a spouse work more than he or she likely would have worked had the parties stayed married. The evidence does not establish that the Husband voluntarily reduced his income to avoid paying alimony or for purposes related to the divorce.”

The wife argues that the trial court’s finding of fact with regard to the husband’s income was not supported by the evidence. As quoted above, the trial court, relying on trial exhibits including the husband’s Social Security statement, found that the husband’s average annual income for the 13 years preceding the divorce was approximately $34,000. It is apparent from our review that the trial court, in arriving at that figure, added the amounts listed in the husband’s Social Security statement for the years 1997 to 2007 to the husband’s adjusted gross income as reflected in his federal income-tax returns for 2008 and 2009 and divided that number by 13. The problem with that approach is that the husband himself testified that the amounts contained in his Social Security statement were not an accurate reflection of his true income during those years, as shown by the following exchange at trial:

“Q. [Attorney for the wife:] I’m going to show you what I have marked as Defendant’s Exhibit 1. Can you identify that document for me?
“A. It says, Tour Social Security Statement,’ ‘June 19th, 2009.’
“Q. All right. And whose Social Security statement does that indicate that it’s for?
“A. William A. Grocholski.
“Q. And is that you?
“A. Well, I have a son William A., but I assume it’s mine. Yes, sir.
“Q. And this is a list of your income from 1962 to 2007; is that correct?
“A. I don’t understand Social Security—
“[Attorney for the husband]: Object to form. Your Honor.
“THE COURT: On the basis of—
“[Attorney for the husband]: He asked if that was his taxable income. Or how exactly did you phrase it?
“[Attorney for the wife]: If this is his income for taxed Social Security earnings.
“[Attorney for the husband]: Okay. It’s your taxed Social Security earnings or your taxed Medicare earnings. It wouldn’t be all earnings.
“[Attorney for the wife]: Right.
“A. I don’t understand these records. I don’t understand Social Security procedures. For instance, in — when I was 15 years old in 1962,1 don’t think I filed an income tax return. Then there are periods of time I see here — I don’t— these can’t be my incomes, because there were periods when I made more than that. There are — I know when I’d get a check — again, I don’t understand the process. When I’d get a check through the office when I was with a partner, I’d get a weekly draw and a— had a FICA [ (Federal Insurance Contributions Act) ]. And I think that’s what this is, maybe, whatever FICA— anyway, and a federal and a state deduction. But then we would do a disbursement for, let’s say — I think she presented in one of her responses we had a $300,000 case. Well, all we got on that was a 1099. I didn’t get any FICA taken out of it and I didn’t get any Social Security or state and federal taxes out of it. So I don’t know how that would work into this operation. But I don’t think it would be reflected in here.
“Q. Okay.
“A. Now, I don’t know, but that’s my understanding.
“Q. Okay. So your income would be greater than what’s reflected in the Social Security statement?
“A. That’s my understanding of it. Again, I’m not a Social Security expert. But I know that some of these don’t appear to be the income that I would have reported, obviously.”

Because the trial court relied on the husband’s Social Security statement to determine his average annual income, the trial court’s factual finding as to the husband’s income is not supported by the evidence of record.

The wife also argues that, in determining the husband’s true income, the trial court should have considered the evidence of the parties’ lifestyle and the fact that they had no debt. In its judgment, the trial court expressly refused to rely on that evidence on the ground that any estimate of the parties’ marital income based on their lifestyle would be “speculation and conjecture.” We agree with the wife that, in so concluding, the trial court erred.

In the context of making an equitable division of marital property, this court has approved of the consideration of a party’s lifestyle in determining that party’s income when the party’s lifestyle conflicted with the party’s reported income. In Turner v. Turner, 745 So.2d 880, 884 (Ala.Civ.App.1999), this court held that the trial court had not erred in imputing income to the husband based on evidence of his income several years before the judgment was entered. The husband had claimed to have no current income, but the evidence indicated that he was “ ‘in the real estate business and the computer field and ha[d] maintained a life style which ha[d] allowed him to accumulate assets while paying the bills for his needs and contributing to the bills of the [wife] and children.’ ” Turner, 745 So.2d at 884 (quoting trial court’s judgment). Thus, pursuant to Turner, a trial court is permitted to consider evidence of a party’s lifestyle in determining that party’s actual income.

As interpreted by the trial court, the financial records indicate that the husband earned $34,000 annually. However, during the marriage, the parties enjoyed a “relatively affluent lifestyle,” as was found by the trial court. Without going into the minutia of the parties’ spending habits, which is only somewhat detailed above, it is apparent that they could not have lived as they did on that amount per year without accumulating massive debt; however, they had no indebtedness on any of their major assets at the time of the trial. As previously discussed, both parties agreed that the financial records did not accurately reflect the income of the husband’s business, which the trial court found was principally operated on a cash basis.

Given the foregoing circumstances, the trial court would not have been engaging in speculation and conjecture in using the lifestyle evidence in the record to compute the actual income of the husband. Its contrary conclusion was error.

The wife also contends, and we agree, that when assessing the equitable amount of periodic alimony, the trial court erred in considering that the husband, who was 63 years old at the time of the trial, may stop working. This court has held that a trial court may not speculate on future events that may affect the income stream of a spouse when determining periodic alimony. Edwards v. Edwards, 894 So.2d 698 (Ala.Civ.App.2004). Rather, if a paying spouse retires, thereby reducing his or her income, that spouse may petition for a modification of his or her periodic-alimony obligation as determined by the equities of the then-existing circumstances. Id. By assuming that the husband would soon stop working, the trial court considered an impermissible factor in determining the fair amount of periodic alimony to be awarded to the wife.

We conclude, based on the foregoing, that the trial court made a factual error in calculating the husband’s income, a legal error in determining that it was precluded from considering evidence of the parties’ lifestyle, and a second legal error in considering a possible retirement by the husband. Because it appears that those errors impacted the trial court’s award of alimony, and because the question of alimony is intertwined with the issue of the division of the marital property, see Stone v. Stone, 26 So.3d 1232, 1236 (Ala.Civ.App.2009), the trial court’s judgment is due to be reversed and the cause remanded for reconsideration of those awards.

In the same context, the wife also argues that the trial court erred in finding that she could reasonably be expected to obtain gainful employment in the future. As previously discussed, the wife testified that she suffered from a number of maladies and that, as a result, she could not work. In contrast, the husband testified that the wife was capable of working, with the limitation that she could not stand for long periods. The evidence also showed that the wife had both an undergraduate degree in general health studies and a master’s degree in higher education; however, she had not been employed during the marriage, with the exception of occasionally assisting the husband at his law office. Based on the foregoing, we conclude that the trial court’s finding that the wife was capable of being gainfully employed was supported by the evidence; thus, we cannot conclude that the trial court erred in its determination in this regard. See Farmers Ins. Co., 873 So.2d at 254-55.

Finally, the wife contends that the trial court erred in its division of the parties’ debts. We do not reach this issue. Matters of debt allocation are part of the division of the marital property. See Combs v. Combs, 4 So.3d 1141, 1149-50 (Ala.Civ.App.2008) (assessing division of marital debts in reviewing propriety of property division). The division of marital property, in turn, is intertwined.with the issue of alimony. See Stone, 26 So.3d at 1236. Because we are reversing the trial court’s judgment with regard to its division of the marital estate and its award of periodic alimony, the trial court will have the opportunity, when entering a new judgment on remand, to address questions of debt allocation as part of its property division and award of alimony.

Based on the foregoing, we affirm the trial court’s order denying the wife’s discovery of the husband’s telephone records, we reverse the trial court’s divorce judgment insofar as it addresses alimony and property division, and we remand the cause to the trial court for the entry of a new judgment consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

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

THOMAS, J., concurs in part and dissents in part, with writing.

THOMAS, Judge,

concurring in part and dissenting in part.

I concur insofar as the main opinion affirms the trial court’s determination that the wife was not entitled to discover the cellular-telephone records of the husband and insofar as it affirms the trial court’s determination that the wife was capable of being gainfully employed. I dissent insofar as the main opinion reverses the portion of the trial court’s judgment dividing the marital property and determining the husband’s alimony obligation.

The trial court was confronted with widely disparate testimony regarding the husband’s income and the parties’ living expenses. Faced with the difficult task of reconciling that testimony, the trial court was required to determine the credibility of the husband and the wife as witnesses and to determine what weight to give the evidence and their respective testimony. It is not this court’s function to determine the credibility of witnesses or the weight to give evidence.

“The Alabama Supreme Court has stated that ‘the law is settled that weighing evidence is not the usual function of an appellate court. This is especially true where ... the assessment of the credibility of witnesses is involved.’ Knight v. Beverly Health Care Bay Manor Health Care Ctr., 820 So.2d 92, 102 (Ala.2001) (citation omitted). Accordingly, appellate courts in this state generally do not review evidence in order to make factual conclusions; instead, they review judgments in order to determine whether the trial court committed reversible error.”

J.C. v. State Dep’t of Human Res., 986 So.2d 1172, 1184 (Ala.Civ.App.2007).

The trial court’s finding that the wife’s testimony regarding the parties’ living expenses amounted to “speculation and conjecture” was not, as the main opinion asserts, a finding that the trial court thought it was precluded from considering lifestyle evidence; rather, it was a finding that the wife’s testimony on the subject was not credible and should be given little weight, a determination that the trial court was entitled to make. See J.C., 986 So.2d at 1184.

Likewise, the trial court’s findings regarding the husband’s reported income do not indicate, as the main opinion asserts, that the trial court impermissibly relied on the husband’s Social Security statement. Although the trial court included information in its findings of fact regarding the income listed on the husband’s Social Security statement, it appears that the trial court included that information, along with the parties’ tax-return information, to illustrate that the parties’ reported income did not agree with the evidence and testimony of the wife regarding the parties’ lifestyle. The trial court’s judgment does not make a determination that the husband’s income equaled the income on the Social Security statement or the parties’ tax returns; it only recites the disparity of the testimony and evidence on the subject. The trial court did not expressly state what it found to be the actual income of the husband, and it was not required to so state. Because the main opinion reverses the trial court’s judgment based on findings of fact that the trial court did not actually make, I disagree with the main opinion’s conclusion on this issue.

I further disagree with the main opinion that the trial court necessarily erred when it noted that the husband was 63 years old and then stated that “the court cannot make a spouse work more than he or she likely would have worked had the parties stayed married.” When considering an award of alimony, the trial court is allowed to consider, among other factors, the age of the parties and their future employment prospects. See Clements v. Clements, 990 So.2d 383, 390 (Ala.Civ.App.2007). Therefore, I do not believe that it was error for the trial court to consider the fact that the husband was nearing the end of his working life.

The ultimate question we are faced with in this case is whether the trial court exceeded its discretion in determining the division of the parties’ marital property and in determining the husband’s alimony obligation. In deciding that question, we may not substitute our judgment for that of the trial court or determine what weight the trial court should have given to certain evidence. “The trial court must be allowed to be the trial court; otherwise, we (appellate court judges and justices) risk going beyond the familiar surroundings of our appellate jurisdiction and into an area with which we are unfamiliar and for which we are ill-suited — factfinding.” Ex parte R.T.S., 771 So.2d 475, 477 (Ala.2000). I also note that, “even though this court might have reached a different decision than that reached by the trial court, such does not constitute a basis for our reversal of the trial court which heard the evidence and observed the witnesses.” Grimsley v. Grimsley, 545 So.2d 75, 77 (Ala.Civ.App.1989). Because, I discern no error on the part of the trial court in dividing the marital property or in determining the husband’s alimony obligation, I would affirm the judgment of the trial court in its entirety.

      . The dissent states that the trial court did not make a finding of fact as to the amount of the husband’s income. In thus construing the final judgment, the dissent is being overly technical. Although it is true that the trial court did not set out exactly what it believed the husband’s income to be, it analyzed in some detail the amount of income reported in the husband’s Social Security statement and the tax returns. It used that analysis to reject the wife’s testimony regarding the husband's income, and it used that analysis to establish the husband’s alimony obligation. Thus, implicit in the trial court’s determination was a finding that the figures contained in the Social Security statement and the income-tax returns accurately reflected the husband's income.

      . We note that, in the context of making an equitable division of marital property as well as determining family-support obligations, courts in other jurisdictions have also approved of the consideration of the parties’ lifestyle in determining income when the evidence of the parties' income so conflicted with the evidence of the parties' lifestyle as to make it unreliable. See, e.g., Johnson v. Fritz, 406 N.W.2d 614, 616 (Minn.Ct.App.1987) (holding that "a court can take into account the lifestyle of a sole business owner if the figures offered do not comport with the evidence of that person's lifestyle”); McCormick v. McCormick, 159 Vt. 472, 477, 621 A.2d 238, 240 (1993) (holding that "[Ijifestyle and personal expenses may serve as the basis for imputing income where conventional methods for determining income are inadequate”); and Palazzo v. Palazzo, 9 Conn.App. 486, 488-89, 519 A.2d 1230, 1232 (1987) (declining to hold the trial court in error for "concluding] that through the manipulative use of corporate funds, [a party had] maintained a lifestyle disproportionate to the amount of his claimed net monthly income” and noting that " '[w]here a party through his own wrongful conduct limits the financial evidence available to the court, that party cannot complain about the resulting calculation of a monetary award.' ” (quoting Vaiuso v. Vaiuso, 2 Conn.App. 141, 149-50, 477 A.2d 678, 684 (1984))).

      . The main opinion acknowledges that the trial court did not make any finding of fact regarding the husband's actual income; however, the main opinion then states that we should read an implicit finding into the trial court's judgment so that this court may then reverse the trial court’s judgment insofar as it is based on that implied finding. Two well-established principles militate against this court’s implying a finding of fact and' then reversing the trial court’s judgment based on that implied finding. First, when a trial court does not make any specific findings of fact on an issue, we "will assume that the trial court made those findings necessary to support its judgment.” Key v. Allison, 70 So.3d 277, 281 (Ala.2010). See also Transamerica Commercial Fin. Corp. v. AmSouth Bank, N.A., 608 So.2d 375, 378 (Ala.1992) (“Under the ore tenus rule, the trial court’s judgment and all implicit findings necessary to support it carry a presumption of correctness.... ”). Second, when confronted with a judgment that contains an ambiguity, we should interpret the judgment in a way that upholds the judgment rather than in a way that allows for reversal. See Eastis v. Veterans Oil, Inc., 65 So.3d 443, 448 (Ala.Civ.App.2010) (holding that, ”[f]ol-lowing our well established rules of judicial interpretation, any ambiguity that may be present in ... the trial court’s judgment should be read in a way that upholds, rather than destroys, the trial court’s judgment”). Therefore, we should not read a finding of fact into the trial court's judgment that causes the judgment to become reversible.


author: MOORE, Judge.

text:
    Ex parte Michael A. WILLIAMS. (In re Michael A. Williams v. Selma Housing Authority).
    2100653.
    Court of Civil Appeals of Alabama.
    Sept. 23, 2011.

      Geraldine Turner-Wofford, Legal Services Alabama, Selma, for petitioner.
    J. Weesley Kelly IV and John W. Kelly III of Kelly & Kelly, Selma, for respondent.
   MOORE, Judge.

Michael A. Williams petitions this court for a writ of mandamus directing the Dallas Circuit Court (“the circuit court”) to dismiss an unlawful-detainer action filed by the Selma Housing Authority (“the Authority”). We grant the petition and issue the writ.

Procedural History

On July 14, 2010, the Authority filed in the Dallas District Court (“the district court”) a complaint alleging an unlawful-detainer claim against Williams. The complaint was signed by Lola B. Rogers, the executive director of the Authority. On August 18, 2010, the district court entered a judgment in favor of the Authority. Williams filed a motion to alter, amend, or vacate the district court’s judgment on August 24, 2010; that motion was denied on August 25, 2010. On August 27, 2010, Williams filed his notice of appeal to the circuit court.

On February 22, 2011, Williams filed in the circuit court a motion to dismiss the action for lack of subject-matter jurisdiction; in that motion Williams asserted that Rogers was not a licensed attorney and that she therefore could not bring an action on behalf of the Authority, which is a corporation. On March 2, 2011, Williams filed a memorandum of law in support of his motion to dismiss, along with documents supporting his assertion that the Authority was a corporation. That same day, the Authority filed a response to the motion to dismiss supported by an affidavit executed by Rogers, in which Rogers stated, in pertinent part:

“I am employed as the Executive Director of [the Authority], a position which I have held officially since 2006. My duties involve the day-to-day administration and operations of [t]he Authority-
“The Authority is a public municipal housing authority organized pursuant to Ala.Code [1975], Section 24-1-20 et seq. The Authority is governed by a five member Board of Commissioners who are appointed by the Mayor of the City of Selma and which establishes policy for the Authority.
“The goal of [t]he Authority is to provide safe, decent and sanitary housing to low-income persons and families residing within the municipal limits of the City of Selma and the portions of Dallas County lying within twenty miles of the municipal limits of the City of Selma.
“In carrying out its mission as a public housing authority, [t]he Authority acts as an instrumentality of the Department of Housing and. Urban Development (HUD) and administers HUD programs which provide federal payments or subsidies for low-income housing, including its conventional public housing program and its Section 8 voucher program. In administering these programs, [t]he Authority complies with HUD rules and regulations, Authority Application for Continued Occupancy Policies (ACOP), Administrative Plan, Lease Agreement and applicable state law.
“In its conventional housing program, [t]he Authority owns and operates 7 (seven) public housing developments or projects. These are: George Washington Carver Homes (GWC), Felix Heights, Rangedale Apartments, Range-dale Annex, Valley Creek Homes, Magnolia Court and Wilkinson Homes. In these developments, [t]he Authority provides housing to 575 families totaling 1,326 individuals. In the operation of the Section 8 voucher program, [t]he Authority provides housing assistance to an additional 1,072 families totaling 2,625 individuals. The funds used by [t]he Authority in the operation of its conventional public housing and Section 8 voucher housing programs are federal funds and funds generated from rent collections.
“In the operation of its housing developments, [t]he Authority employs resident and/or on-site managers. It has been the policy and practice of [t]he Authority for these managers to collect that portion of the rent payment which may be due from the tenants and to report to [t]he Authority the tenants who are delinquent in their rental payments or are in violation of the lease agreement. As an Executive Director of [t]he Authority and in performance of my management duties, I caused an unlawful detainer complaint to be prepared and filed in the District Court of Dallas County against Michael Williams, a resident of ... GWC Homes, for reason of nonpayment of rent. The complaint form used in the instant case is the same or similar to that made available to members of the public (State of Alabama Unified Judicial System Form C-59).
“I have reviewed records of [t]he Authority for the period January 2010 to December 2010. During this period, [t]he Authority commenced 41 (forty-one) evictions in the Dallas County District Court. Legal expenses associated with the handling of the most routine unlawful detainer actions are a matter of substantive concern to [t]he Authority which must carry out its mission within its budgetary confines and resources available to it.
“In its operations, [t]he Authority is always mindful of the rights of tenants arising under state and federal law and of the obligations of [t]he Authority to its tenants, including the rights and obligations which are set out in the Alabama Uniform Residential Landlord and Tenant Act, set out in Ala.Code [1975,] Section 85-9A-101 et seq. In the instant case, [t]he Authority followed all provisions of the Alabama Uniform Residential Landlord and Tenant Act which led to the entry of a judgment against [Williams] in the District Court of Dallas County, Alabama. To my knowledge, there has been no claim that [t]he Authority violated any of [Williams’s] rights or denied to him any of the rights secured by law, other than the assertion of [Williams’s] attorney, Legal Services Corporation of Alabama, that the instant unlawful detainer action was not filed or prosecuted by a licensed attorney-at-law. Further, to the best of my knowledge, the position taken by Legal Services Corporation of Alabama represents the consistent policy of Legal Services Corporation of Alabama to oppose the commencement of such actions without representation of legal counsel even where non-payment of rent is undisputed and where the tenant has received all notices required by law. It is my further opinion that this policy is unfair and violates public policy and the spirit and intent of the Alabama Uniform Residential Landlord and Tenant Act as set forth in the purposes of the Act and which provide that the Act shall be liberally construed and applied to: (1) simplify, clarify, modernize, and revise the law governing the rental of dwelling units and the rights and obligations of landlords and tenants; (2) encourage landlords and tenants to maintain and improve the quality of housing; and (3) make uniform the law among those states which enact it.”

Williams’s motion to dismiss was denied on March 3, 2011. On April 13, 2011, Williams petitioned this court for a writ of mandamus.

Standard of Review

“Mandamus review is available when the question presented is one of subject-matter jurisdiction.
“ ‘ “Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.” Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995). The question of subject-matter jurisdiction is reviewable by a petition for a writ of mandamus. Ex parte Flint Constr. Co., 775 So.2d 805 (Ala.2000).’
“Ex parte Liberty Nat’l Life Ins. Co., 888 So.2d 478, 480 (Ala.2003) (emphasis added). ‘When a party without standing purports to commence an action, the trial court acquires no subject-matter jurisdiction.’ State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1028 (Ala.1999). Under such a circumstance, the trial court has ‘no alternative but to dismiss the action.’ 740 So.2d at 1029.”

Ex parte Chemical Waste Mgmt., Inc., 929 So.2d 1007, 1010 (Ala.2005).

Discussion

In his petition, Williams argues that, because the unlawful-detainer action was filed by Rogers, a nonattorney, on behalf of the Authority, a corporation, the circuit court erred by denying his motion to dismiss.

“[Tjhis court and our supreme court have long held that a corporation may not be represented in a court of law by one of its officers and must instead be represented by a licensed attorney.” Estate of Wilson v. Berry, 68 So.3d 178, 180 (Ala.Civ.App.2011).

“Our supreme court has further described a pleading filed by a nonattor-ney on behalf of a separate legal entity as a ‘nullity.’ Ex parte Ghafary, 738 So.2d [778,] 781 [(Ala.1998)]; see also Progress Indus.[, Inc. v. Wilson], 52 So.3d [500,] 507-08 [(Ala.2010)] (‘This court has thus held that a pleading filed by a non-attorney engaging in the unauthorized practice of law in purporting to represent a separate legal entity is a nullity.’), and Ex parte Lamberth, 242 Ala. [165,] 167, 5 So.2d [622,] 623-24 [(1942)] (ordering the trial court to vacate its order denying the plaintiffs motion to strike the answer of a corporation filed by the corporation’s president).”

Berry, 68 So.3d at 181.

In response, the Authority argues that Rogers did not engage in the unauthorized practice of law because, it says, she did not hold herself out to be an attorney in violation of Ala.Code 1975, § 34-3-1. Section 34-3-1 provides that a person who is not a licensed attorney engages in the unlawful practice of law if he or she “practice[s] or assume[s] to act or hold himself or herself out to the public as a person qualified to practice or carry on the calling of a lawyer.” We note, however, that although Rogers might not have held herself out to the public as a person qualified to practice law, she acted as a person qualified to practice law by filing the complaint on behalf of the Authority.

The Authority also argues that Rogers did not engage in the practice of law as defined by Ala.Code 1975, § 34-3-6, because, it says, she did not actually draft the unlawful-detainer complaint but, instead, used the Form C-59 complaint form provided by the Unified Judicial System. The Authority notes that § 34—3—6(b)(1) provides that a person practices law when he or she, “[i]n a representative capacity!,] appears as an advocate or draws papers, pleadings, or documents, or performs any act in connection with proceedings pending or prospective before a court or a body, board, committee, commission, or officer constituted by law or having authority to take evidence in or settle or determine controversies in the exercise of the judicial power of the state or any subdivision thereof.” The plain language of § 34-3-6 does not limit the practice of law to drafting pleadings and is broad enough to encompass the completion of a complaint form on behalf of the Authority.

The Authority next argues that § 35-9A-101 et seq., Ala.Code 1975, the Alabama Uniform Residential Landlord and Tenant Act (“the Act”), provides that a manager of property may sue alleging unlawful detainer. The Authority points out that Ala.Code 1975, § 35-9A-461(a), a part of the Act, refers to “[a] landlord’s action for eviction, rent, monetary damages, or other relief.” (Emphasis added.) The Authority notes that, pursuant to Ala. Code 1975, § 35-9A-141(7), a part of the Act, the term “landlord” “means the owner, lessor, or sublessor of the dwelling unit or the building of which it is a part, and it also means a manager of the premises.” (Emphasis added.) The Authority argues that Rogers is the manager of the housing development in which Williams resides and, thus, that she had the authority to initiate the unlawful-detainer action on behalf of the Authority. The Authority cites The Florida Bar Re: Advisory Opinion— Nonlawyer Preparation of & Representation of Landlord in Uncontested Residential Evictions, 605 So.2d 868 (Fla.1992), opinion clarified, 627 So.2d 485 (Fla.1993), advisory opinions issued by the Justices of the Florida Supreme Court, in support of its argument. It is unnecessary, however, for this court to determine whether a non-lawyer property manager may bring an action alleging unlawful detainer on behalf of a corporation in the present case because Rogers is not the manager of the premises. Section 24-l-27(a)(7), Ala.Code 1975, a part of § 24-1-1 et seq., Ala.Code 1975, an act pertaining to housing authorities, grants the Authority the power “[t]o manage, as agent of any city located within its boundaries, any housing project constructed or owned by such city.” Pursuant to Ala.Code 1975 § 24-1-24, the “authority may delegate to one or more of its agents or employees such power or duties as it may deem proper.” Rogers’s affidavit makes it clear that the Authority did not delegate the power or duty to manage the housing development in which Williams resides. In fact, her affidavit states that the Authority “employs resident and/or on-site managers.” Because Rogers is the executive director of the Authority and not a manager of the housing development, we reject the Authority’s argument.

The Authority’s final argument is that not allowing nonattorneys to file an action alleging unlawful detainer violates public policy. The Authority cites Ala.Code 1975, § 24-l-6(a), which requires “each housing authority [to] manage and operate its low rent housing projects in an efficient manner.” We note, however, that that policy must be balanced with the need to maintain an efficient court system.

“As our supreme court has explained, the rationale behind prohibiting a nonat-torney from representing the interests of a separate legal entity protects the public in three ways:
“ ‘(1) by protecting citizens from injury caused by ignorance and lack of skill on the part of those who are untrained and inexperienced in the law; (2) by protecting the courts in their administration of justice from the interference of those who are unlicensed and are not officers of the court; and (3) by preventing the unscrupulous from using the legal system for their own purposes to the detriment of the system and of those who may unknowingly rely on them.’
“Ex parte Ghafary, 738 So.2d 778, 779 (Ala.1998).”

Berry, 68 So.3d at 181.

We conclude that the policies set forth by our supreme court in Ex parte Ghafary, 738 So.2d 778 (Ala.1998), and in Berry, supra, should not be sacrificed in the quest for ultraefficiency on the part of the Authority. Further, having a licensed attorney represent the Authority in unlawful-detainer actions would likely aid the Authority in maintaining efficiency because it would benefit from the skill and knowledge possessed by a licensed attorney in the prosecution of those actions. Accordingly, we decline to make a public-policy exception to the general rule set forth by our supreme court and by this court.

Based on the foregoing, we conclude that the unlawful-detainer complaint filed by Rogers on behalf of the Authority was a nullity. Berry, 68 So.3d at 181. Thus, the district court never acquired jurisdiction over that action. Because the district court was without jurisdiction, we conclude that the requirements for the issuance of the requested writ have been met. We therefore grant Williams’s petition and direct the circuit court (1) to grant Williams’s motion to dismiss and (2) to instruct the district court to vacate its void judgment.

PETITION GRANTED; WRIT ISSUED.

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

      . Rogers's name apparently changed after this action was commenced; her name is now Lola Rogers Moore.


author: PITTMAN, Judge.

text:
    Joel L. SUMMERS v. Cayce L. SUMMERS.
    2091175.
    Court of Civil Appeals of Alabama.
    Oct. 7, 2011.
    Certiorari Denied Feb. 10, 2012 Alabama Supreme Court 1110084.

      Lindsey Mussleman Davis of Holt, Mus-sleman, Kelley & Morgan, Florence, for appellant.
    Submitted on appellant’s brief only.
   PITTMAN, Judge.

Joel L. Summers (“the former husband”) appeals from a judgment of the Lauderdale Circuit Court denying his Rule 60(b), Ala. R. Civ. P., motion for relief from a judgment divorcing him from Cayce L. Summers (“the former wife”).

The former husband and the former wife were divorced in December 2008. Before the trial court issued its divorce judgment, it conducted a trial during which both parties presented evidence. One of the former wife’s witnesses (“the witness”) testified that he had had sex with the former husband in exchange for drugs. Countering the witness’s testimony, the former husband presented evidence indicating that the witness had been paid to testify falsely against him. The former husband filed a motion to strike the witness’s testimony, which was supported by a document that, the former husband alleged, was a contradictory sworn statement of the witness, but the trial court did not rule on the former husband’s motion. The trial court entered a judgment of divorce in which it awarded the former wife primary physical custody of the parties’ minor son and divided the parties’ marital property. After the former husband’s postjudgment motion, which was partly based on his contention that the witness had given perjured testimony, was denied, the former husband appealed to this court. See Summers v. Summers, 58 So.3d 184 (Ala.Civ.App.2010). In April 2010, we issued our opinion in Summers in which, among other things, we affirmed the trial court’s decision holding that the witness’s testimony was admissible. 58 So.3d at 187. The former husband’s subsequent application to this court for rehearing was overruled, and his petition for a writ of certiorari was thereafter denied by our supreme court.

While the former husband’s appeal was pending, the witness was indicted on perjury charges; in March 2010, the witness pleaded guilty to having committed first-degree perjury while testifying during the parties’ divorce trial. In May 2010, before this court rendered a decision on rehearing in Summers, the former husband sought and obtained leave of this court to file a Rule 60(b) motion in the trial court; the former husband then filed a Rule 60(b) motion asserting that the witness’s plea of guilty to having committed first-degree perjury during the parties’ divorce trial constituted new evidence pertinent to the divorce judgment that the trial court had issued in December 2008 that, the former husband said, should be considered by the trial court. The former husband requested that a hearing be held on his motion. In September 2010, the trial court summarily denied the former husband’s motion. The former husband thereafter timely appealed to this court.

On appeal, the former husband argues that the trial court erred in denying his Rule 60(b) motion. He contends that the witness’s perjured testimony “played a significant role in the trial court’s decision to award physical custody of the parties’ minor [child] to the former wife and in its seemingly disproportionate property division,” and, thus, that the new evidence tending to show that the witness’s testimony, in fact, had been false warranted setting aside the divorce judgment.

In his brief, the former husband relies heavily on Gunter v. Gunter, 911 So.2d 704, 710-11 (Ala.Civ.App.2005), in which we held that the trial court had erred in denying a party’s Rule 59, Ala. R. Civ. P., postjudgment motion without holding a requested hearing on the motion. Although it is true that the movant in Gunter asserted the existence of newly discovered evidence tending to show that the movant’s opponent had given perjured testimony during the previous divorce trial, the husband in Gunter had filed a Rule 59 motion; our decision in Gunter was premised on the express language of Rule 59(g), Ala. R. Civ. P., which requires a trial court to hold a hearing on a Rule 59 motion if the movant has requested such a hearing. There is no similar procedural requirement that a hearing be held on a Rule 60(b) motion, even if one is requested by the movant; indeed, no such hearing need be held if the motion is clearly without substance and frivolous. Waldron v. Fikes, 378 So.2d 1138, 1139 (Ala.Civ.App.1979).

“ ‘ “The only issue we consider on an appeal from the denial of a Rule 60(b) motion is whether, by denying the motion, the trial court abused its discretion.” ’ Ex parte Phillips, 900 So.2d 412, 418 (Ala.2004) (quoting Wood v. Wade, 853 So.2d 909, 912 (Ala.2002)). Therefore, an appeal from the denial of a Rule 60(b) motion ‘ “ ‘does not present for review the correctness of the judgment that the movant seeks to set aside, but presents for review only the correctness of the order from which the appeal is taken.’ ” ’ Phillips, 900 So.2d at 419 (quoting Wood v. Wade, 853 So.2d at 913, quoting in turn, Satterfield v. Winston, Indus., Inc., 553 So.2d 61, 63 (Ala.1989)). Thus [in addressing the matter before us] we must determine only whether the trial court acted outside the limits of its discretion in denying the husband’s Rule 60(b) motion.”

Kovakas v. Kovakas, 12 So.3d 693, 701 (Ala.Civ.App.2008).

In Kovakas, we addressed a trial court’s denial of a Rule 60(b) motion that the father in that case had filed based on allegations that, during the parties’ divorce trial, the mother had not disclosed to the court an alleged romantic relationship that she was having at the time with a married man; the father sought Rule 60(b) relief from the divorce judgment awarding custody of the parties’ minor child to the mother. We affirmed the trial court’s denial of the Rule 60(b) motion for two reasons: First, we stated that “the trial court could properly have concluded that the motion failed to state any sufficient ground to set aside the parties’ divorce judgment” because, even if the allegations of the mother’s adulterous relationship were proven, “acts of adultery do not [necessarily] bar an award of custody to the party who committed adultery.” Kovakas, 12 So.3d at 702. Second, with respect to the father’s argument that the trial court had erred in not holding a hearing on his Rule 60(b) motion, we concluded that, “[e]ven when a hearing is requested, a hearing need not be held if the motion for relief ‘clearly is without substance and [is] merely an attempt to burden the court with frivolous contentions.’ ” Kovakas, 12 So.3d at 702 (quoting Waldron, 378 So.2d at 1139). We concluded that the nature of the father’s allegations did not warrant relief.

Here, the former husband’s Rule 60(b) motion was based on new evidence — i.e., evidence of the witness’s perjury conviction — indicating that the witness had given perjured testimony during the parties’ divorce trial. We have held that evidence that comes into existence only after the trial is over cannot support a motion for relief from a judgment entered after that trial. Wal-Mart Stores, Inc. v. Pitts, 900 So.2d 1240, 1245 (Ala.Civ.App.2004). Further, even if such a motion was proper, the former husband asserts that the only evi-dentiary basis upon which the trial court could have awarded custody of the child and allocated the parties’ property was the witness’s testimony. However, there is no evidence indicating that the trial court believed the witness’s testimony or took it into consideration at all, much less evidence establishing that the witness’s testimony, alone, was the sole basis for the trial court’s decision to rule in the manner it did. Our decision in Summers, 58 So.3d at 189, amply demonstrates that the trial court may have based its decision on evidence other than the witness’s testimony.

In conclusion, the former husband has not conclusively demonstrated that the trial court believed the witness’s testimony and that it rendered a decision unfavorable to the former husband based on that testimony so that relief would have been mandated under Rule 60(b). The trial court could have concluded that, despite the existence of some evidence indicating that the witness’s testimony was perjured, the parties’ divorce judgment was nonetheless sufficiently supported by the other evidence presented at the divorce trial. Therefore, the trial court properly concluded that the former husband’s Rule 60(b) motion failed to state a sufficient basis to set aside the divorce judgment; moreover, knowing that the motion cited new evidence indicating that the witness had committed perjury and that the divorce judgment had been rendered based on other independent grounds and evidence, the trial court could have properly concluded that the former husband’s motion was a frivolous attempt to burden the court and that, therefore, a hearing would be unnecessary.

For the foregoing reasons, we affirm the decision of the trial court.

AFFIRMED.

BRYAN and THOMAS, JJ., concur.

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


text:
    Nue Cheer FRANKLIN v. WOODMERE AT THE LAKE.
    2100692.
    Court of Civil Appeals of Alabama.
    Oct. 21, 2011.
    Rehearing Denied Jan. 6, 2012.
    Certiorari Denied Feb. 10, 2012 Alabama Supreme Court 1110455.

      Nue Cheer Franklin, pro se.
    Submitted on appellant’s brief only.
   PER CURIAM.

Nue Cheer Franklin appeals from the judgment of the Montgomery Circuit Court entered in favor of Woodmere at the Lake (“Woodmere”) after a jury trial. For the reasons stated herein, we affirm the circuit court’s judgment.

In December 2008, Franklin began leasing and residing in an apartment located in an apartment complex known as Wood-mere at the Lake. On July 21, 2009, Woodmere filed an unlawful-detainer action against Franklin in the Montgomery District Court. It alleged that Franklin had breached her lease agreement by failing to make rental payments under the agreement. It demanded possession of the apartment. Franklin, acting pro se, filed a counterclaim against Woodmere, asserting, among other things, that Wood-mere had breached the lease agreement, had breached its “fiduciary duty” to her by failing to make repairs she had requested to the apartment, had been negligent in its maintenance of her apartment and of the apartment grounds, had constructively evicted her, and had invaded her privacy by repeatedly entering her apartment without her consent.

In August 2009, the district court held a trial. On December 11, 2009, it entered a judgment awarding possession of the apartment to Woodmere and finding in favor of Franklin on her counterclaims. The district court set a hearing on damages for February 4, 2010. After Franklin did not appear for the hearing, the district court reset the hearing. Franklin did not appear at the second hearing. On March 3, 2010, after it had held the second hearing, the district court entered a judgment for Woodmere in the amount of $8,540; it awarded nothing to Franklin on her counterclaims. Franklin filed a motion to set aside the district court’s order, asserting that she had been 10 minutes late to the first hearing, arriving just after Wood-mere’s counsel had left, and that she had never received notice of the setting of the second hearing. The district court denied Franklin’s motion. Franklin filed a timely appeal to the Montgomery Circuit Court.

On August 9, 2010, Franklin, who continued to act pro se, filed a motion for a summary judgment, which the circuit court denied. The circuit court set the case for a jury trial on February 7, 2011. On February 7, counsel for Woodmere sought a continuance because one of Woodmere’s two witnesses was unavailable. Over Franklin’s objection, the circuit court continued the trial until February 9, 2011. The circuit judge stated that the parties could depose any witness who had appeared for the trial on February 7 and would not be able to return on February 9.

At the trial, the parties called several witnesses. Following the presentation of the evidence, the jury returned a verdict in favor of Woodmere on its unlawful-detain-er claim, awarding it $7,715. The jury also found in favor of Woodmere on Franklin’s counterclaims. The circuit court entered a judgment in favor of Woodmere based on the jury’s verdict. Franklin filed a post-judgment motion, which the circuit court denied. Franklin also filed a motion seeking to have the circuit judge presiding over the action recuse himself on the basis that he had “demonstrated personal prejudice and disdain for Franklin and pro se litigants in general” and that he “allows his contempt to influence his overtly bias[ed] rulings when presiding over cases.” The circuit court denied that motion as well. Franklin filed a timely appeal to our supreme court, which transferred the appeal to this court pursuant to § 12-2-7, Ala. Code 1975.

Franklin contends that because Wood-mere did not file an appeal to the circuit court from the district court’s holding in her favor on her counterclaims, the district court’s holding on her counterclaims became “the law of the case” and the relitigation of her counterclaims in the circuit court was therefore barred. Similarly, she contends that, based on the doctrine of res judicata, the district court’s holding in her favor on the merits of her counterclaims barred the relitigation of the merits of her counterclaims in the circuit court. We disagree.

Generally, an appeal from district court to circuit court results in a trial de novo. See § 12-12-71, Ala.Code 1975 (“Except as provided in Section 12-12-72 and in subsection (e) of Section 12-15-120, all appeals from final judgments of the district court shall be to the circuit court for trial de novo.”). Recently, this court described the effect of a de novo appeal from district court to circuit court:

“Section 12-12-71, Ala.Code 1975, provides that, with certain exceptions that are not applicable in this case, ‘all appeals from final judgments of the district court shall be to the circuit court for trial de novo.’ ‘ “Alabama cases have consistently held that a trial de novo means an entirely new trial, ‘as if no trial had ever been had, and just as if it had originated in the circuit court.’ Cloverleaf Land Co. v. State, 276 Ala. 443, 163 So.2d 602 (1964).’” State v. Reynolds, 887 So.2d 848, 853 (Ala.2004) (quoting Ex parte Palughi, 494 So.2d 404, 408 (Ala.1986)). ‘A trial de novo ... means “trying anew the matters involved in the original hearing as if they had not been heard before and as if no decision had been previously entered.” ’ Neal v. First Alabama Bank of Huntsville, N.A., 440 So.2d 1111, 1112 (Ala.Civ.App.1983) (quoting Rudolph v. State, 286 Ala. 189, 190, 238 So.2d 542, 543 (1970)) (emphasis omitted).”

Petersen v. Woodland Homes of Huntsville, Inc., 959 So.2d 135, 139 (Ala.Civ.App.2006). Furthermore, “[bjecause the circuit court tries de novo the case appealed from the district court’s judgment, the district court’s judgment is not a final judgment for purposes of res judicata.” Id. at 140.

The effect of Franklin’s appeal to the circuit court was to bring the entire case to the circuit court, including all the claims that were part of the proceeding in the district court. See Thurman v. Thurman, 454 So.2d 995, 997 (Ala.Civ.App.1984). In Thurman, a father filed an action against his son in district court to recover personal property in the son’s possession. The son filed an answer and a counterclaim, asserting ownership of the property, seeking the return of certain property the father had taken, and seeking an award of damages. The district court ruled in favor of the son on the father’s claim and in favor of the father on the son’s counterclaim. The son filed an appeal to the circuit court; the father did not. The circuit court tried the case de novo and entered a judgment awarding some of the property at issue to the father, awarding some of the property at issue to the son, and finding in favor of the father on the son’s counterclaim.

On appeal, this court discussed the effect of the son’s appeal from the district court to the circuit court, holding that both parties’ claims in the district court, not just the son’s, were part of the case in the circuit court. After reviewing the applicable legal principles, we stated:

“Applying these principles to the ease at bar, we observe that the son’s appeal of the district court’s judgment had the effect of bringing up to the circuit court the entire judgment of the district court, not just the ruling on the counterclaim. This means that the case was to be retried completely in the circuit court. The father was required to prosecute his complaint and the son was required to prosecute his counterclaim. The case could be tried on pleadings filed in the district court or amendments could be made to those pleadings or additional pleadings could be filed in the circuit court. Vinyard v. Republic Iron & Steel Co., 205 Ala. 269, 87 So. 552 (1921).”

Thurman, 454 So.2d at 997.

Based on the foregoing, we conclude that Franklin’s appeal to the circuit court from the district court’s judgment rendered the district court’s judgment ineffectual for res judicata purposes and brought the entire case before the circuit court for a trial de novo. The judgment entered in the district court did not have a preclusive effect under the doctrine of res judicata with regard to any of the claims in the circuit court, and Woodmere itself was not required to file a notice of appeal to the circuit court for that court, based on Franklin’s appeal, to acquire jurisdiction over all the claims at issue in the district-court case. See Petersen, 959 So.2d at 139-40; Thurman, 454 So.2d at 997. Franklin’s contentions to the contrary are therefore without merit.

Franklin next contends that the circuit court erred when it denied her motion for a summary judgment. Specifically, she argues that she had moved the circuit court to strike the affidavit Woodmere had submitted in opposition to her summary-judgment motion and that the circuit court erred in failing to do so. She argues that, because the affidavit Woodmere submitted was inadmissible, she was entitled to a summary judgment.

This court does not review the denial of a summary judgment after a trial on the merits has been held. See Beiersdoerfer v. Hilb, Rogal & Hamilton Co., 953 So.2d 1196, 1205 (Ala.2006) (“ ‘[W]e do not review a trial court’s denial of a summary-judgment motion following a trial on the merits. See Grayson v. Hanson, 843 So.2d 146 (Ala.2002); Superskate, Inc. v. Nolen, 641 So.2d 231, 233 (Ala.1994); see also Lind v. United Parcel Serv., Inc., 254 F.3d 1281, 1283-84 (11th Cir.2001).’” (quoting Mitchell v. Folmar & Assocs., LLP, 854 So.2d 1115, 1116 (Ala.2003))). Because this case was tried on the merits after the circuit court denied Franklin’s summary-judgment motion, the denial of that motion is not subject to review. Id.

Even if we were to review the denial of Franklin’s summary-judgment motion, we would conclude that she has failed to state a basis for reversing the circuit court’s judgment. Her contention that the circuit court should have struck the affidavit that Woodmere submitted in opposition to her summary-judgment motion has merit; although the affidavit was executed by the affiant, it was not notarized. This fact alone, however, is not sufficient to demonstrate that Franklin’s motion was due to be granted. Franklin makes no argument that the contentions in her motion and the evidence she submitted in support thereof, either as to Wood-mere’s claim or as to her counterclaims, demonstrated that she was entitled to a judgment as a matter of law. Indeed, beyond arguing that Woodmere’s affidavit was inadmissible, she makes no argument that her motion was, itself, meritorious and was supported by such evidence as to cast onto Woodmere the burden of responding with admissible evidence. Simply put, Franklin does not, on appeal, discuss the basis for her summary-judgment motion or demonstrate that it had merit.

It is not this court’s obligation to create arguments for an appellant. Hayes v. Hayes, 949 So.2d 150, 154 (Ala.Civ.App.2006) (“An appellate court is under no obligation to perform research or to make arguments for appellants.”). Instead, the appellant is obligated to provide arguments demonstrating that the trial court committed error requiring reversal. See Middleton v. Lightfoot, 885 So.2d 111, 113-14 (Ala.2003) (“ ‘The burden of establishing that an erroneous ruling was prejudicial is on the appellant.’ Preferred Risk Mut. Ins. Co. v. Ryan, 589 So.2d 165, 167 (Ala.1991).”). Franklin, in this instance, has failed to do so; thus, even were we to reach her argument that the circuit court erred in denying her summary-judgment motion, we could not reverse the circuit court’s judgment on that ground.

Franklin next contends that she was prejudiced by the circuit court’s continuance of the trial date from February 7, 2011, to February 9, 2011, to accommodate one of Woodmere’s witnesses. She argues that her “main witness” was unable to testify because that witness could not change her schedule in order to attend the trial as rescheduled. Franklin also argues that she was prejudiced by the two-day continuance of the trial because she was forced to take a videotaped deposition of another of her witnesses who could not be present for trial on February 9. Franklin also contends that the circuit court abused its discretion in sustaining objections to portions of that videotaped deposition at trial because, she argues, those portions of the deposition were relevant to her case. Finally, she argues that the circuit court abused its discretion when it refused to allow her to submit into evidence at the trial certain affidavits from individuals who, she says, would have testified as witnesses for her had the circuit court not continued the trial.

An appellant is required, when making an argument, to cite legal authority in support of that argument. As our supreme court stated in University of South Alabama v. Progressive Insurance Co., 904 So.2d 1242 (Ala.2004):

“Rule 28(a)(10), Ala. R.App. P., requires that arguments in an appellant’s (or cross-appellant’s) brief contain ‘citations to the cases, statutes, other authorities, and parts of the record relied on.’ The effect of a failure to comply with Rule 28(a)(10) is well established:
“ ‘It is settled that a failure to comply with the requirements of Rule 28(a) ([10]) requiring citation of authority for arguments provides the Court with a basis for disregarding those arguments:
“ ‘ “When an appellant fails to cite any authority for an argument on a particular issue, this Court may affirm the judgment as to that issue, for it is neither this Court’s duty nor its function to perform an appellant’s legal research. Rule 28(a) ([10]); Spradlin v. Birmingham Airport Authority, 613 So.2d 347 (Ala.1993).”
‘City of Birmingham v. Business Realty Inv. Co., 722 So.2d 747, 752 (Ala.1998). See also McLemore v. Fleming, 604 So.2d 353 (Ala.1992); Stover v. Alabama Farm Bureau Ins. Co., 467 So.2d 251 (Ala.1985); and Ex parte Riley, 464 So.2d 92 (Ala.1985).’
“Ex parte Showers, 812 So.2d 277, 281 (Ala.2001). ‘[W]e cannot create legal arguments for a party based on undeli-neated general propositions unsupported by authority or argument.’ Spradlin v. Spradlin, 601 So.2d 76, 79 (Ala.1992).”

904 So.2d at 1247-48. Franklin cites no legal authority in support of any of the arguments she makes relative to the circuit court’s having continued the trial to February 9, 2011. As a result, we will not consider those arguments. See Rule 28(a)(10), Ala. R.App. P.; University of South Alabama v. Progressive Ins. Co., 904 So.2d at 1247-48.

Franklin contends that the circuit court’s instructions to the jury were incorrect. She argues that she asserted numerous counterclaims against Woodmere about which the circuit judge failed to instruct the jury.

Rule 51, Ala. R. Civ. P., provides, in pertinent part:

“No party may assign as error the giving or failing to give a written instruction, or the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge unless that party objects thereto before the jury retires to consider its verdict, stating the matter objected to and the grounds of the objection.”

Thus, in order to preserve her arguments for appeal related to the circuit court’s jury instructions, Franklin was required to have: “(1) objected before the jury retired to consider its verdict; (2) stated the matter that [s]he was objecting to; and (3) supplied the grounds for [her] objection.” Ware v. Timmons, 954 So.2d 545, 558 (Ala.2006). The trial transcript does not reflect that Franklin objected to the circuit court’s jury instructions or in any manner contended that the circuit court should have given different or additional instructions. As a result, she has waived her contention that the circuit court erred with regard to the jury instructions.

Finally, Franklin contends that the circuit judge abused his discretion in refusing to recuse himself. In support, she appears to rely on Canon 3.C.(l)(a) of the Alabama Canons of Judicial Ethics, which provides, in pertinent part:

“(1) A judge should disqualify himself in a proceeding in which his disqualification is required by law or his impartiality might reasonably be questioned, including but not limited to instances where:
“(a) He has a personal bias or prejudice concerning a party....”

Franklin argues that the circuit judge was biased against her and that he harbored personal contempt for her. She asserts that, as a result of that bias, the circuit judge, among other things, improperly overruled her objections at trial, improperly sustained Woodmere’s objections, provided grounds to Woodmere for its objections, made objections for Woodmere, refused to allow her to present affidavits at trial, and was impatient, rude, short-tempered, and discourteous to her.

Our supreme court has provided the following standard for reviewing a trial judge’s refusal to recuse himself or herself from a trial:

“The burden is on the party seeking recusal to present evidence establishing the existence of bias or prejudice. Otwell v. Bryant, 497 So.2d 111, 119 (Ala.1986). Prejudice on the part of a judge is not presumed. Hartman v. Board of Trustees, 436 So.2d 837 (Ala.1983); Duncan v. Sherrill, 341 So.2d 946 (Ala.1977); Ex parte Rives, 511 So.2d 514, 517 (Ala.Civ.App.1986). ‘ “[T]he law will not suppose a possibility of bias or favor in a judge who is already sworn to administer impartial justice and whose authority greatly depends upon that presumption and idea.” ’ Ex parte Balogun, 516 So.2d 606, 609 (Ala.1987), quoting Fulton v. Longshore, 156 Ala. 611, 46 So. 989 (1908). Any disqualifying prejudice or bias as to a party must be of a personal nature and must stem from an extrajudicial source. Hartman v. Board of Trustees of the University of Alabama, 436 So.2d 837 (Ala.1983); Reach v. Reach, 378 So.2d 1115 (Ala.Civ.App.1979). Thus,
“ ‘ “[t]he disqualifying prejudice of a judge does not necessarily comprehend every bias, partiality, or prejudice which he may entertain with reference to the case, but must be of a character, calculated to impair seriously his impartiality and sway his judgment, and must be strong enough to overthrow the presumption of his integrity.” ’
“Ross v. Luton, 456 So.2d [249,] 254 [(Ala.1984)], quoting Duncan v. Sherrill, 341 So.2d 946, 947 (Ala.1977), quoting 48 C.J.S. Judges § 82(b).”

Ex parte Melof 553 So.2d 554, 557 (Ala.1989), abrogated on other grounds, Ex parte Crawford, 686 So.2d 196, 198 (Ala.1996).

We have thoroughly reviewed the record and, in particular, the transcript of the trial. Although the circuit judge appears, at times, to have been somewhat exasperated by Franklin as a pro se litigant, we can perceive no bias on the part of the circuit judge that would require his recusal under the Canons of Judicial Ethics.

Franklin alludes to a civil action she has filed in the United States District Court for the Middle District of Alabama against, among others, the circuit judge. Franklin did not file that action until April 18, 2011, more than a month after the circuit judge denied Franklin’s motion for a new trial. See Franklin v. Arbor Station, (No. 2:11-cv-294-MEF, June 22, 2011) (M.D.Ala.2011) (not reported in F.Supp.2d). Although Franklin argues in her brief that, “[b]ecause of [the circuit judge]’s involvement as a defendant in an unrelated case brought by [Franklin], he is due to recuse himself to avoid the appearance of being impartial,” the timing of the filing of the federal-court action demonstrates that that action did not require the circuit judge’s recusal in this case.

Based on the foregoing, we conclude that Franklin has failed to provide this court with a basis on which to reverse the circuit court’s judgment. Thus, the judgment is due to be, and is hereby, affirmed.

AFFIRMED.

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

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

      . The record does not reflect what type of entity Woodmere is, although it is clearly associated with an apartment complex in Montgomery known as Woodmere at the Lake.

      . The exceptions contained in § 12-12-72 and § 12-15-120(e), Ala.Code 1975, are not applicable in this case.

      . We note that the most recent order in the federal-court action indicates that the circuit judge's involvement in that action was short-lived and that he is no longer involved in that action. See id.