author: ROBERTS, J.,

text:
    Joey K. SIMMONS, Appellant v. Betty C. SIMMONS, Appellee.
    No. 2010-CA-00205-COA.
    Court of Appeals of Mississippi.
    March 29, 2011.

      Wren Carroll Way, Vicksburg, attorney for appellant.
    David M. Sessums, Vicksburg, attorney for appellee.
    Before LEE, C.J., ROBERTS and CARLTON, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. On August 21, 2009, the Warren County Chancery Court entered a final judgment for divorce on the ground of habitual cruel and inhuman treatment ending the twenty-eight year marriage between Joey and Betty Simmons. Then, on September 30, 2009, Joey moved the chancery court to set aside the final divorce judgment. The chancery court dismissed Joey’s motion. It is from this dismissal that Joey now appeals.

FACTS AND PROCEDURAL HISTORY

¶ 2. On June 4, 2009, Betty filed a complaint with the chancery court seeking a divorce from Joey on the ground of habitual cruel and inhuman treatment or, in the alternative, on the ground of irreconcilable differences. In her complaint, Betty sought exclusive use and possession of the marital residence and furnishings, temporary, periodic alimony, and attorney’s fees. Joey was served with a Rule 4 summons and copy of the complaint on June 24, 2009.

¶ 3. Despite being properly served with process, Joey failed to answer or appear at the divorce hearing held on August 19, 2009. At this hearing, Betty and one witness testified as to the habitual cruel and inhuman treatment alleged in the complaint. On August 21, 2009, two days after the hearing, the chancellor entered a final judgment granting Betty a divorce from Joey on the ground of habitual cruel and inhuman treatment. The chancellor also awarded Betty the marital home and furnishings plus her reasonable attorney’s fee in the amount of $650. There was not an award since the children were emancipated or alimony. Apparently Joey was not aware of the entry of divorce. The parties continued living in the family home until September 30, 2009, when Joey found out about the divorce hearing and judgment. That same day, Joey filed a motion to set aside the judgment alleging that he was entitled to notice of the hearing. The chancellor denied Joey’s motion to set aside the divorce judgment finding that Joey was not entitled to notice because he did not file an answer or enter an appearance in the proceeding. The chancellor also found that Joey did not file his motion to set aside judgment within ten days of the entry of the divorce judgment. Finally, the chancellor found that Joey’s case was not “one of extraordinary and compelling circumstances” to warrant relief under Mississippi Rule of Civil Procedure Rule 60(b)(6).

¶ 4. Feeling aggrieved, Joey raises the following issues, which we recite verbatim:

1. The lower court erred in holding that appellant was required to file his motion to set aside judgment of divorce within ten days from the date of the judgment.
2. The lower court erred in its application of Mississippi Rules of Civil Procedure, Rule 60(b)(1) in failing to find that the judgment was obtained by “fraud, misrepresentation, or other misconduct of an adverse party.”
3. The lower court erred in its application of Mississippi Rules of Civil Procedure, Rule 60(b)(6) in failing to find from the facts presented “any other reason justifying relief from the judgment of divorce.”
4. The lower court erred in its application of Mississippi Rules of Civil Procedure, Rule 55(b), (c), and (e) in failing to find that appellant had “appeared” in the cause below, as set forth in said rule requiring that appellant be given notice of the hearing.
5. There is no record of the testimony in the court below; hence, no evidence exists that would support the lower court’s inequitable finding that appellee was entitled to all of the marital assets of the parties, as well as attorney’s fees.

Finding no error, we affirm.

STANDARD OF REVIEW

¶ 5. The standard of review when reviewing a chancellor’s decision is limited. Pratt v. Pratt, 977 So.2d 386, 390 (¶10) (Miss.Ct.App.2007) “Upon review of a chancellor’s opinion, when it is supported by substantial evidence and where the chancellor has not abused her discretion, was not manifestly wrong, clearly erroneous, or applied an erroneous legal standard, we will not disturb her opinion.” Id. (citing Townsend v. Townsend, 859 So.2d 370, 371-72 (¶ 7) (Miss.2003)). This Court reviews questions of law de novo. Id.

ANALYSIS

I. TEN-DAY PERIOD

¶ 6. Joey first alleges that the chancellor erred in finding that he was required to file his motion to set aside judgment of divorce within ten days of the judgment. There is no dispute that Joey filed his motion to set aside judgment on September 30, ■ 2009, which was more than ten days after the divorce judgment was entered on August 21, 2009.

¶ 7. Mississippi Rule of Civil Procedure Rule 52(b) allows a court, on its own motion or on a party’s motion, to amend its findings of fact and amend the judgment accordingly. Mississippi Rule of Civil Procedure Rule 59 allows a party to file a motion for a new trial or to have the judgment amended. Finally, Mississippi Rule of Civil Procedure Rule 60 allows a party to seek relief from a judgment or order. Rule 52(b) and Rule 59 both contain language that motions must be filed within ten days of the judgment being entered; however, Rule 60 does not contain this language. Rule 60(b) reads in pertinent part:

(b) Mistakes; Inadvertence; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:
(1) fraud, misrepresentation, or other misconduct of an adverse party;
(2) accident or mistake;
(3) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application;
(6) any other reason justifying relief from the judgment.
The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than six months after the judgment, order, or proceeding was entered or taken.

M.R.C.P. 60(b) (emphasis added).

¶ 8. Rule 60(b) contains no ten-day requirement. Thus, Rule 60 is the only available procedural vehicle that Joey has when attacking the judgment since he filed his motion more than ten days after the judgment was entered. The chancellor found that Joey filed his motion over ten days after the final judgment was entered, so she completed a Rule 60 analysis, not a Rule 52 or Rule 59 analysis, since that was the only one available to him.

¶ 9. We hold that the chancellor properly reviewed Joey’s case under Rule 60.

II. RULE 60(b)

¶ 10. Joey’s next issue involves the application of Mississippi Rule of Civil Procedure Rule 60(b). He first alleges that the chancellor erred in failing to find Betty had committed fraud, misrepresentation, or other misconduct pursuant to Mississippi Rule of Civil Procedure 60(b)(1). He alleges, through his and his daughter’s sworn affidavits, that Betty committed acts of misconduct or fraud, more specifically by her appearing before a justice court judge and answering affirmatively when asked if they were still married even though the final judgment of divorce had already been entered. David Sessums, Betty’s attorney, disputes Joey’s version of the events that transpired at the justice court hearing. With the exception of the justice court hearing, there is no evidence in the record alleging that Betty committed fraud or misconduct such that would warrant relief under Rule 60(b)(1). Further, were Joey’s version of the justice court hearing true, there is still no ground to set aside the divorce judgment based on fraud or misrepresentation because there is no evidence that Betty obtained the divorce judgment by fraud or misconduct.

¶ 11. Joey also alleges that he is entitled to relief pursuant Rule 60(b)(6). This section provides relief from a judgment if the claimant can “show exceptional circumstances existed that warrant a modification and/or reformation to the judgment.” Pratt, 977 So.2d at 392 (¶ 17). However, relief under Rule 60(b)(6) cannot be based on one of the reasons enumerated in the first five clauses, thus Joey would have to show some other exceptional circumstance. Townsend, 859 So.2d at 375 (¶ 16). The chancellor found that Joey did not show any other reason nor that his case was an exceptional circumstance warranting relief from judgment.

¶ 12. “[Mjotions for relief under Rule 60(b) are generally addressed to the sound discretion of the trial court and appellate review is limited to whether that discretion has been abused.” Stringfellow v. Stringfellow, 451 So.2d 219, 221 (Miss.1984). Our review is limited to whether the chancellor abused her discretion. We can find none. This issue is without merit.

III. APPEARANCE

¶ 13. The crux of Joey’s appeal is that he was entitled to three days’ notice of the divorce hearing pursuant to Mississippi Rule of Civil Procedure Rule 55. The chancellor found that Joey did not file an answer or enter an appearance in the matter and was not entitled to three days’ notice of the divorce hearing.

¶ 14. Rule 55 provides in pertinent part:

(a) When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter his default, (b) In all cases the party entitled to a judgment by default shall apply to the court therefor. If the party against whom judgment by default is sought has appeared in the action, he (or if appearing by representative, his representative) shall be served with written notice of the application for judgment at least three days prior to the hearing of such application; however, judgment by default may be entered by the court on the day the case is set for trial without such three days’ notice.

M.R.C.P. 55.

¶ 15. Frequently, it is said that a person enters an appearance sufficient to require notice when “the non-movant has manifested to the movant a clear intent to defend the suit.” Dynasteel Corp. v. Aztec Industries, Inc., 611 So.2d 977, 981 (Miss.1992). Joey asserts that although he had not filed an answer, he had retained attorney Wren Way who contacted Sessums, Betty’s attorney, regarding the divorce proceeding. In separate affidavits, Joey; Joey’s daughter, Heather; and Way allege that on July 2, 2009, Way, in the presence of Joey and Heather, contacted Sessums by phone regarding the divorce and informed him of Joey’s desire to discuss property-settlement options. In his sworn affidavit, Sessums states that he has a “vague recollection of an attorney contacting [him] stating that he represented Joey K. Simmons in the above referenced matter. However, after that call, and the name of the attorney placing that call to [him] was unrecalled and unknown to [him], time passed at which point Betty C. Simmons indicated that she wanted to proceed with her divorce hearing.” Joey asserts that Way’s phone call to Sessums was sufficient to constitute an appearance under Mississippi Rule of Civil Procedure Rule 55.

¶ 16. This Court’s standard of review is limited to abuse of discretion when reviewing a chancellor’s decision. There is a factual dispute as to whether the phone call between Way and Sessums if such call in fact occurred, was a clear manifestation by way of an intent to defend the suit. As such, we defer to the chancellor’s finding of fact. We are simply unable to conclude that the chancellor abused her discretion in determining that the alleged, undocumented phone call made by Way to Ses-sums was an appearance sufficient to require three days’ advance notice of the divorce hearing.

¶ 17. This issue is without merit.

IV. NO RECORD

¶ 18. Joey’s final argument is that there is no record of the divorce-proceeding testimony; thus, there is no evidence to support the chancellor’s award of all marital property and attorney’s fee to Betty.

¶ 19. In Luse v. Luse, 992 So.2d 659, 661 (¶ 6) (Miss.Ct.App.2008), John Luse argued that the divorce was void because there was no record that the hearing occurred, and Mississippi Code Annotated section 93-5-17(1) (Rev.2004) required a transcribed record to be created in an uncontested divorce. Mississippi Code Annotated section 93-5-17(1) reads:

The proceedings to obtain a divorce shall not be heard or considered nor a judgment of divorce entered except in open court. A chancellor may, in his discretion, hear or consider proceedings to obtain a divorce in vacation and make and enter judgments of divorce in the same manner as he may in other cases that may be heard in vacation pursuant to Section 9-5-91. Any judgment made or entered contrary to the provisions of this section shall be null and void.

This Court found that there is no language in the statute that requires a transcription of an uncontested divorce hearing. Luse, 992 So.2d at 662 (¶ 8). The only requirement is that there is sufficient and corroborated proof presented at the hearing. Id. Betty was required to present evidence at the divorce hearing held on August 19, 2009. She and another witness testified in open court before the chancellor. The chancellor found the evidence presented to be sufficient and entered the divorce judgment in favor of Betty on the ground of habitual cruel and inhuman treatment, and “[tjhere is a presumption that there is sufficient evidence to sustain a decree once it is entered by the chancellor.” Id. at (¶ 9)-

¶ 20. This issue is without merit.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., MYERS, BARNES, ISHEE, CARLTON AND MAXWELL, JJ„ CONCUR.

      . In Way’s affidavit, he states that in his phone conversation with Sessums, both attorneys agreed that both parties wanted a divorce, so the sole issue discussed was the division of marital property consisting of primarily the marital home and furnishings. Way states that he asked Sessums to submit a written list of items Betty wanted.

      . Sessums believed that the attorney calling on behalf of Joey was William Bost, Jr., and Sessums contacted Bost regarding the matter. Bost informed Sessums that he was not involved in the matter. It is after that time that Sessums could not recall the name of the attorney he had spoken with regarding the matter.


source: Caselaw Access Project

author: GRIFFIS, P.J.,

license: Public Domain

text:
    Robert MOODY and Betty Moody, Appellants v. Phillip CATES and Sharon Cates, Appellees.
    No. 2009-CA-01340-COA.
    Court of Appeals of Mississippi.
    April 5, 2011.

      Raymond G. O’Neal III, Fulton, attorney for appellants.
    Lori Nail Basham, attorney for appel-lees.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Robert and Betty Moody and Sharon Cates own adjoining lots in the Bud Isaiah Lake Subdivision in Itawamba County, Mississippi. This dispute arose over an action brought by the Moodys against Sharon to quiet and confirm title regarding an area encompassing the boundary line dividing their properties. The Chancery Court of Itawamba County ruled that the Moodys had gained ownership by adverse possession of a portion of the disputed property, originally owned by Sharon. The extent of the property awarded to the Moodys is at issue in the instant appeal. The chancellor found that only a portion of the area in dispute had been adversely possessed; therefore, she only awarded that portion to the Moodys. The Moodys have appealed arguing that the chancellor erred in failing to award the entire disputed area.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. The Moodys and Sharon own adjoining lots within their subdivision, and both lots consist of waterfront property on the southwest shore of Bud Isaiah Lake. In 1967, the Moodys purchased Lot 50. Within four years of purchase, the Moodys built a retaining wall, a sidewalk and patio, a fence, a well and well house, and a house on the property. In order to access the property, Robert built two driveways leading to the property, including a main driveway which passes through the area in dispute. The Moodys claim to have continuously used and maintained the disputed property since 1967.

¶ 4. In approximately 1980, Archie Cates purchased the adjoining property, Lot 51. Archie testified that he was aware that the Moodys had built a cabin and a well within the disputed area, but he never considered the Moodys to be building on his land. Archie testified that he continuously used the main driveway to access Lot 51. Archie acknowledged that there was an existing fence when he purchased the land, but he was uncertain as to the exact location of the fence. Archie stated that he used Lot 51 primarily for fishing and maintained the property during his ownership.

¶ 5. In 1998, Archie sold Lot 51 to Danny Howard Shefield. Shefield also testified to using the main driveway to access Lot 51. Shefield stated that the fence was built near the boundary line dividing Lot 50 and Lot 51, and the fence began at the lake and stretched approximately half the boundary line. Shefield testified that he maintained the property during his ownership.

¶ 6. In 2005, Shefield sold Lot 51 to Sharon, and Sharon began constructing a house. Problems began when the Moodys alleged that the cabin was being constructed too close to their lot line, in violation of the restrictive covenants. The Moodys had surveys completed on both properties, and the results of the surveys revealed that the Moodys had overestimated their property area by a tenth of an acre. As a result, the Moodys filed a complaint requesting the court to quit and confirm title.

¶ 7. The Moodys argued that the subdivision plat must contain a mistake because they believed their lot was larger than what is described within the plat. The focus of the dispute turned upon the location of two old iron pins found by Robert, which he described as the original pins designating the boundary line between the two properties. If the pins defined the boundary line, Lot 50 is larger than shown by the subdivision plat, and correspondingly, Lot 51 is smaller. Basically, the Mood-ys claim title to the property encompassed by the iron pins, including the main driveway. If the iron pins do not control the description of the lot, then the Moodys argue that they are entitled to ownership by adverse possession of the disputed area. Sharon answered and argued that the description of the lots, as set forth in the subdivision plat control the boundary line, and she filed a counter-complaint alleging ownership by adverse possession of the main driveway.

¶ 8. Two surveyors, Randy Boyd and Joe Mears, testified as to the possible discrepancy between the boundary line suggested by the two iron pins and the subdivision plat. Boyd used the iron pins for his survey and stated that the plat was incorrect in its description of the location of the pins. Mears, on the other hand, could not locate the iron pins and testified that his survey is consistent with the requirements of the plat description. Mears also acknowledged that the plat may contain an erroneous description.

¶ 9. The chancellor addressed the alteration of the subdivision plat, citing Mississippi Code Annotated section 19-27-31 (Rev.2003), and held that the description set forth in the recorded plat controls the description of the individual lots. Section 19-27-31 provides statutory procedures for altering or vacating a description within a platted area, and because the statutory procedures were not satisfied, the chancellor held that the description in the plat, rather than the location of pins, defined the property’s boundaries.

¶ 10. The chancellor then found that the Moodys had gained ownership by adverse possession of a portion of the disputed property and divided the property accordingly. The Moodys have appealed arguing that the chancellor erred in failing to award them the entire disputed area.

STANDARD OF REVIEW

¶ 11. “Chancellors are vested with broad discretion, and this Court will not disturb the chancellor’s findings unless the court’s actions were manifestly wrong, the court abused its discretion, or the court applied an erroneous legal standard.” Andrews v. Williams, 723 So.2d 1175, 1177 (¶ 7) (Miss.Ct.App.1998) (citations omitted). “When reviewing a chancellor’s decision, we will accept a chancellor’s findings of fact as long as the evidence in the record reasonably supports those findings. In other words, we will not disturb the findings of a chancellor unless those findings are clearly erroneous or an erroneous legal standard was applied.” Peagler v. Measells, 743 So.2d 389, 390 (¶ 6) (Miss.Ct.App.1999) (citation omitted). “The chancellor, as the trier of fact, evaluates the sufficiency of the proof based on the credibility of witnesses and the weight of their testimony.” Ellison v. Meek, 820 So.2d 730, 734 (¶ 11) (Miss.Ct.App.2002) (citation omitted).

ANALYSIS

¶ 12. The Moodys argue that they are entitled to ownership by adverse possession of the entire disputed area of land rather than just the portion awarded by the chancellor. The Mississippi Supreme Court has identified six elements that are necessary to make a successful claim of adverse possession. The possession of the property must be: (1) under claim of ownership; (2) actual or hostile; (3) open, notorious, and visible; (4) continuous and uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful. Ellison, 820 So.2d at 734 (¶ 13). The burden of proof is on the adverse possessor to show by clear and convincing evidence that each element is met. Id.

¶ 13. In this case, the chancellor found each element was satisfied, but for only a portion of the property in dispute. The chancellor determined that through adverse possession, the Moodys gained ownership of the portion of the property on which they constructed the well, well house, walkway with steps, retaining wall, and placed the fence posts. As for the remainder of the property, through which the main driveway passes, the Moodys failed to satisfy the necessary elements of adverse possession.

1. Claim of Ownership

¶ 14. “In most cases, the underlying question is whether the possessory acts relied upon by the would-be adverse possessor are sufficient to put the record title holder upon notice that the lands are held under an adverse claim of ownership.” Cook v. Robinson, 924 So.2d 592, 595 (¶ 12) (Miss.Ct.App.2006) (citation omitted). The chancellor held that the Moodys had established a claim of ownership as to a portion of the property, stating: “The Moody’s utilized the property as their own, and based on their position with regard to the displaced pins, believed the same was their property insofar as they utilized the same.”

¶ 15. The Moodys argue that they established a claim of ownership to the entire disputed area because they paid a higher price for their lot compared to the price of other lots within the subdivision under the assumption their lot was larger. This Court has held the purchase of property does not automatically establish a claim of ownership in property other than that described within the deed. See Niebanck v. Block, 35 So.3d 1260, 1264 (¶ 12) (Miss.Ct.App.2010).

¶ 16. The Moodys also claim there was a fence dividing the properties and that the construction of the fence is evidence of their claim of ownership. Even so, “the mere existence of a fence near the actual boundary line does not establish that the fence is the accepted boundary between the properties.” Ellison, 820 So.2d at 734 (¶ 16) (citations omitted).

¶ 17. In the instant case, the record reveals that the exact location of the fence is ambiguous and insufficient to prove to adverse possession. Stewart v. Graber, 760 So.2d 868, 869 (¶¶8-9) (Miss.Ct.App.2000). The owners proceeding Sharon testified to the existence of the fence, but they stated that it only spanned half of the alleged boundary line. There is no evidence that the fence ever enclosed or completely divided one property from another. Sharon testified that when they began clearing their lot to build their cabin, there was no fence or remnants of a fence, except for one post. Because there is no evidence to prove the location of the fence, there is no evidence to support the Mood-ys’ claim of ownership as to property allegedly divided by the fence. This element is not satisfied.

2. Actual or Hostile Possession

¶18. Actual possession is “effective control over a definite area of land, evidenced by things visible to the eye or perceptible to the senses.” Wicker v. Harvey, 937 So.2d 983, 993-94 (¶ 34) (Miss.Ct. App.2006) (quoting Blankinship v. Payton, 605 So.2d 817, 819-20 (Miss.1992)). The chancellor found that this element was satisfied and recognized that, “[t]he Mood-ys’[ ] actions, beginning in 1967 were done without permission from [Sharon], or her predecessors in title.” The main driveway, constructed by the Moodys, lies within the remainder portion of the disputed property. The record indicates that the main driveway was also constructed without permission from Sharon or her predecessors in title. Accordingly, this element is satisfied.

3. Open, Notorious, and Visible

¶ 19. A “land owner must have notice, actual or imputable, of an adverse claim to his property in order for it to ripen against him, and the mere possession of land is not sufficient to satisfy the requirement of open and notorious.” Scrivener v. Johnson, 861 So.2d 1057, 1059 (¶ 6) (Miss.Ct.App.2003) (citation omitted). An adverse possessor “must unfurl his flag on the land, and keep it flying, so that the (actual) owner may see, and if he will, that an enemy has invaded his domains, and planted the standard of conquest.” Wicker, 937 So.2d at 994 (¶ 35) (quoting Blan-kinship, 605 So.2d at 820).

¶ 20. The chancellor held that the Moodys satisfied the element of open, notorious and visible possession. “Since 1967, the Moodys utilized the driveway, constructed a well, well house, walkway with steps, retaining wall, and placed fence posts along the line in dispute, and maintained the same.” As to the remainder of the disputed property, there is no dispute that the main driveway was constructed by the Moodys, and it is visible to Sharon and all successive owners. This element is satisfied.

A Continuous Use or Possession

¶21. The chancellor found that: “Beginning in 1967, the Moodys constructed the driveway, well, well house, walkway with steps, retaining wall and placed the fence posts, and continued to use the same without interruption for approximately 28 years, until the dispute precipitating this action in 2005.” The record indicates that the main driveway was also constructed in 1967, and the Moodys used the main driveway continuously since the date of construction. This element is satisfied.

5. Exclusive Use or Possession

¶ 22. The chancellor held that: “No proof was presented to show [Sharon], or her predecessors in title, utilized the particular portion of property in dispute nor interfered with the Moodys’[ ] use thereof prior to the present dispute.” The record indicates that the chancellor was referring to only a portion of the disputed property, the portion encompassing the well, well house, walkway with steps, and retaining wall. The remainder of the property was used by both the Moodys and Sharon. The main driveway is within the remainder of the disputed property, and the Moodys and Sharon, and all previous owners of Sharon’s property, testified to using the driveway. Furthermore, the previous owners of Lot 51 and Sharon testified to utilizing/maintaining the remainder of the disputed property and also paying taxes on the property. Only the portion granted by the chancellor to the Moodys by adverse possession was exclusively used. Thus, this element is not satisfied.

6. Peaceful

¶ 23. There is no dispute as to this element. Both parties agree that ownership of them adjoining lots was peaceful until this present dispute arose.

¶ 24. For the foregoing reasons we find that the Moodys have failed to satisfy each necessary element of adverse possession. Accordingly, we affirm the chancellor’s judgment.

¶ 25. THE JUDGMENT OF THE ITAWAMBA COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

LEE, C.J., IRVING, P.J., BARNES, ISHEE, ROBERTS AND MAXWELL, ' JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. MYERS, J., NOT PARTICIPATING.

      . The case was originally filed against Phillip and Sharon Cates. The Cates have separated, and Phillip is no longer a party to this suit.


author: THOMAS, Judge. THOMPSON, Presiding Judge,

text:
    Hattie B. SHANKLIN v. NEW PILGRIM TOWERS, L.P., and Schindler Elevator Corporation.
    2090076.
    Court of Civil Appeals of Alabama.
    June 25, 2010.
    Ronald O. Gaiser, Jr., and John C. Johnston of Gaiser and Johnston, Birmingham, for appellant.

      Rosemary S. Moore of Taylor Ritter, P.C., Birmingham, for appellee New Pilgrim Towers, L.P.
    Stephanie Z. Lynton and James A. Harris III of Harris & Harris, LLP, Birmingham, for appellee Schindler Elevator Corporation.
   THOMAS, Judge.

Hattie B. Shanklin sued New Pilgrim Towers, L.P. (“NPT”), and fictitiously named parties, alleging that she was injured as a result of the negligence, wantonness, and “breach of legal duties” on the part of NPT when she tripped and fell while using an elevator on NPT’s premises. NPT sought and received leave to file a third-party complaint against Schindler Elevator Corporation (“Schindler”); NPT later dismissed its claims against Schindler. Shanklin amended her complaint to name Schindler in the place of one of the fictitiously named parties. Both Schindler and NPT filed motions for a summary judgment; Shanklin responded. The trial court entered a summary judgment in favor of both defendants, and Shanklin appealed to the Alabama Supreme Court, which transferred the appeal to this court, pursuant to Ala.Code 1975, § 12-2-7(6).

We review a summary judgment de novo; we apply the same standard as was applied in the trial court. A motion for a summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. A party moving for a summary judgment must make a prima facie showing “that there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law.” Rule 56(c)(3); see Lee v. City of Gadsden, 592 So.2d 1036,1038 (Ala.1992). If the movant meets this burden, “the burden then shifts to the nonmovant to rebut the movant’s prima facie showing by ‘substantial evidence.’ ” Lee, 592 So.2d at 1038 (footnote omitted). “[S]ubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989); see Ala.Code 1975, § 12-21-12(d). Furthermore, when reviewing a summary judgment, the appellate court must view all the evidence in a light most favorable to the nonmovant and must entertain all reasonable inferences from the evidence that a jury would be entitled to draw. See Nationwide Prop. & Cas. Ins. Co. v. DPF Architects, P.C., 792 So.2d 369, 372 (Ala. 2000); and Fuqua v. Ingersolh-Rand Co., 591 So.2d 486, 487 (Ala.1991).

Based on the exhibits offered in support of and in opposition to the summary-judgment motions, the record reveals the following facts. Shanklin is a 76-year-old resident of a facility operated by NPT, which is an independent-living facility providing supportive services for the elderly and some mobility-impaired residents. NPT’s facility is a multistory facility, and it has two elevators. One elevator is a passenger elevator (“the passenger elevator”), while the other elevator is a larger elevator designed to carry both passengers and to serve as a freight elevator to assist in moving residents and their furniture in and out of the building (“the freight elevator”). If the freight elevator is not being utilized for a move, the residents can use it as they would the passenger elevator.

On October 2, 2006, Shanklin rode the freight elevator from her second-floor apartment down to the lobby to retrieve a package. The package was not heavy, weighing approximately seven pounds, so Shanklin did not take a cart with her. The package was approximately three feet in length and two feet in width; the package was around six to eight inches deep. Shanklin picked up her package at the lobby desk and proceeded to return to the elevator to return to her room. She said she could see around and over the package and that she could see the floor as she walked. As she approached the freight elevator, she said, someone was already inside the elevator and appeared to be pushing the button to hold open the doors for Shanklin. Shanklin recalled being able to see the floor of the elevator as she approached it. As Shanklin went to step into the elevator, she fell. Her head struck the back corner of the elevator, injuring her head; she also injured her knee in the fall. Shanklin’s injuries were severe enough to require surgery and a lengthy hospital stay.

The resident assistant at the front desk, Miriam Smith, heard the fall and responded by coming to the elevator. Once she discovered Shanklin, who was conscious and talking, Smith proceeded to call emergency personnel. Smith testified in her deposition that, when she saw the elevator after Shanklin’s fall, the elevator was “mis-leveled” approximately two to three inches. Smith, who lived in the building, testified that she had not personally encountered a problem with the elevators in the building but that she had been aware that some problems had occurred. She specifically stated that she did not recall there having been any problems with the elevators in the week before Shanklin’s accident.

A frequent visitor to NPT’s facility, Carrie Hardin, was at the lobby desk when Shanklin picked up her package. Hardin was also headed to the elevator when she heard Shanklin fall. According to her affidavit, when Hardin heard Shanklin fall, Hardin hurried to the elevator to render aid. Hardin testified that, when she arrived at the elevator, she “noticed that the elevator was not level with the floor by about 5 to 6 inches.” Hardin stated that she noticed no other hazards in the area that, in her opinion, would have caused Shanklin to fall; thus, Hardin opined that Shanklin’s fall had been caused by the “misleveled” condition of the elevator. Hardin also testified that she had observed the freight elevator in the same condition — not level with the floor — on one occasion approximately a year and a half before the October 2006 accident.

Shanklin herself testified to two incidents that she recalled where an elevator in the building had not been level with the floor. In addition, the record contains work tickets obtained from Schindler detailing certain service-call complaints and the maintenance work performed on the elevators in the building. One of those work tickets, dated March 2006, indicates that a service call was initiated by NPT because one of the elevators was not leveling on every floor. The other work ticket, dated May 2006, indicates that the freight elevator was not stopping on any floor between one and nine and that it was not leveling. Both work tickets indicate that the elevator technician located the cause of each problem and remedied it.

Samuel Robinson, the manager of NPT’s facility, testified that he oversees the daily operations of the building and supervises the staff. Robinson explained that elevator maintenance was not the responsibility of NPT’s maintenance staff but that NPT had a contract for maintenance on the elevators with Schindler. Robinson was not present when Shanklin’s accident occurred. He explained that Smith had telephoned him to report the accident. According to Robinson, Smith had informed him that the elevator was not level with the floor. Robinson said that he instructed Smith to “take the elevator out of service” until he could telephone Schindler to request service the next morning. Robinson said that he instructed Smith to use a toggle switch to make the elevator doors stay open and to place a bench in front of the elevator doors to prevent use of the elevator. Robinson testified that he could recall only a few times that the elevator had not been level with the floor in his 23-year tenure as manager; he admitted, however, that he had no way of knowing whether the elevator had ever not been level with the floor without his having any knowledge of it.

Robinson placed a service call to Schindler the morning after Shanklin’s accident. The technician who responded to the service call, Ronald Bell, testified in his deposition that, when he arrived that morning, the freight elevator was level with the lobby floor. He reported that he rode the elevator for some time, attempting to get it to “mislevel” as it had reportedly done the evening before, but with no success. Bell also explained that he spent some time in the machine room watching the operation of the elevator, again without any results indicating the reason why the elevator may not have been level with the floor the evening before.

On October 5, 2006, someone at NPT’s facility again placed a service call to Schindler about the freight elevator not leveling with the floor. George Scroggins responded to the service call. Scroggins testified in his deposition that, when he arrived to service the elevator, it was not running. However, Scroggins said that he adjusted a “1UL” switch on the elevator, and, he said, after that adjustment, the elevator “ran fine.”

The following day, someone at NPT’s facility placed a third service call to Schindler about the freight elevator. Jeff Dut-ton responded to this service call. Dutton testified that NPT reported that the freight elevator had been “misleveling” intermittently. When he arrived, however, Dutton said, the elevator was working properly. Dutton then decided to check and clean the “1UL” and “1DL” switches on the elevator as a method of troubleshooting the problem. The record contains no other indications that the freight elevator continued to malfunction in any manner after October 6, 2006.

Schindler presented the deposition testimony of John L. Donnelly as an expert in elevators and their maintenance. Donnelly had prepared a report in which he detailed two findings: (1) that he had found no evidence indicating that the alleged “misleveling” of the freight elevator resulted from any failure by Schindler to properly maintain or repair the elevator, and (2) that the elevator could have intermittently “misleveled” on the date of the accident for reasons unrelated to any action or inaction on the part of Schindler because elevators are complex electro-mechanical systems that can “mislevel” even when properly maintained and repaired. Don-nelly opined that an elevator that is not level with the floor is not a dangerous condition, because a person can avoid the danger posed by the “misleveled” condition of the elevator; Donnelly characterized a “misleveled” elevator as a “hazard.”

Donnelly was questioned at length.about two particular work tickets indicating that NPT had reported “misleveling” in the elevators. The first work ticket, dated March 2006, contained confusing notations not clearly indicating which of the two elevators was “misleveling”; the May 2006 work ticket clearly related to the freight elevator. Donnelly explained that, based on his knowledge of elevators, the May 2006 work ticket did not specifically concern a “misleveling” problem. According to Donnelly, the May 2006 work ticket indicated that the reported problem was that the elevator was not stopping on floors one through nine and that it was not leveling. Donnelly explained that, if an elevator does not stop on a given floor, it cannot level. In any event, the record indicates that the problems reported in March and May 2006 were resolved by the elevator technicians who responded to the service calls.

Shanklin herself testified that the freight elevator was functioning the day of the accident, noting that she had ridden that elevator to the lobby to retrieve her package. She also testified that, as far as she knew, the elevators in the building had been functioning fine the day before and even the week before her accident. She denied having any knowledge that the freight elevator was having problems on the date of the accident; she also admitted that she did not have any information indicating that Robinson had any knowledge of a problem with the freight elevator on that date.

Shanklin’s negligence claim against NPT is based on her status as tenant in the building; thus, the principles applicable to premises liability apply.

“A tenant in an apartment complex shares the same legal rights as an invitee with respect to the common areas of the complex. Shelton v. Boston Fin., Inc., 638 So.2d 824 (Ala.1994). Our supreme court has stated:
“ ‘A landowner owes an invitee the legal duty “to exercise reasonable care and diligence to keep the premises in a reasonably safe condition for the uses contemplated by the invitation, and to warn the invitee of known dangers, or dangers that ought to have been known, and of which the invitee was ignorant.” Lamson & Sessions Bolt Co. v. McCarty, 234 Ala. 60, at 62, 173 So. 388 (1937).’
“Id. at 825. To recover in a premises-liability action based on a fall, a plaintiff must prove (1) that her fall was caused by a defect or instrumentality located on the defendant’s premises, (2) that the fall was the result of the defendant’s negligence, and (3) that the defendant had or should have had notice of the defect or instrumentality before the accident. Logan v. Winn-Dixie Atlanta, Inc., 594 So.2d 83, 84 (Ala.1992). An owner of the premises is not an insurer of the safety of his invitees, and the doctrine of res ipsa loquitur is not applicable. Ex parte Mountain Top Indoor Flea Market, Inc., 699 So.2d 158 (Ala.1997). No presumption of negligence arises out of the mere fact of an injury to the invitee. Id.”

Ervin v. Excel Props., Inc., 831 So.2d 38, 40-41 (Ala.Civ.App. 2001).

In addition,
“ ‘[t]he owner of a premises ... is not an insurer of the safety of his invitees ..., and the principle of res ipsa loquitur is not applicable. There is no presumption of negligence which arises from the mere fact of an injury to an invitee.’ Tice v. Tice, 361 So.2d 1051, 1052 (Ala. 1978). In order to overcome a defendant’s properly supported summary-judgment motion, the plaintiff bears the burden of presenting substantial evidence as to each disputed element of her claim. See Ex parte Atmore Community Hosp., 719 So.2d 1190 (Ala.1998); Mann v. Bank of Tallassee, 694 So.2d 1375 (Ala.Civ.App.1996).”

Ex parte Harold L. Martin Distrib. Co., 769 So.2d 313, 314 (Ala.2000).

Shanklin’s negligence claim against Schindler is based on her allegation that Schindler failed to properly service and repair the elevators in the building. Thus, general principles of negligence and wantonness apply to those claims.

“Alabama law defines ‘negligence’ as

“ ‘the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do, with reference to the situation and knowledge of the parties under all of the attendant circumstances.’
“Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230, 233(n.2) (5th Cir.1974). In order to present a prima facie case of negligent repair on [Schindler’s] part, [Shanklin] had the burden of presenting substantial evidence that, taking into account all of the attendant circumstances, [Schindler] did something or failed to do something that would violate the proper standard of care one must observe in repairing [an elevator].”

Brooks v. Colonial Chevrolet-Buick, Inc., 579 So.2d 1328, 1334 (Ala.1991). To overcome a properly supported summary-judgment motion, Shanklin must also have presented substantial evidence indicating that Schindler’s action or inaction proximately caused her injuries. See Martin v. Arnold, 643 So.2d 564, 567 (Ala.1994) (“To establish negligence, the plaintiff must prove: (1) a duty to a foreseeable plaintiff; (2) a breach of that duty; (3) proximate causation; and (4) damage or injury.”).

Shanklin also claimed that NPT and Schindler wantonly caused her injuries.

“ ‘ “Wantonness” has been defined by this Court as the conscious doing of some act or the omission of some duty, while knowing of the existing conditions and being conscious that, from doing or omitting to do an act, injury will likely or probably result. To prove wantonness, it is not essential to prove that the defendant entertained a specific design or intent to injure the plaintiff.’
“Alfa Mut. Ins. Co. v. Roush, 723 So.2d 1250,1256 (Ala.1998).”

Ervin, 831 So.2d at 41. “To establish wantonness, the plaintiff must prove that the defendant, with reckless indifference to the consequences, consciously and intentionally did some wrongful act or omitted some known duty. To be actionable, that act or omission must proximately cause the injury of which the plaintiff complains.” Martin, 643 So.2d at 567.

When asked to describe her accident and what had made her fall, Shanklin testified that she was not sure what had caused her to fall until Hardin informed her that the elevator was “misleveled.”

“A: .... See, that’s what I—I think [the ‘misleveled’ elevator] is what made me trip. I’m not sure. All I know, I just, when I stepped in there, I just flipped and hit the corner of the elevator.
“Q: Okay. Do you remember if your foot hit anything before you fell?
“A: I don’t know.
“Q: Okay. All you know is that you fell.
“A: Uh — huh. And I wouldn’t have known — If [Hardin] hadn’t said, ‘The elevator is not. all the way down,’ I wouldn’t have known.... ”

As noted above, Hardin testified in her affidavit that she had heard Shanklin fall. Hardin’s affidavit testimony contains only her speculation about what caused Shank-lin’s fall, which she admittedly did not witness. Shanklin herself testified that she did not know what made her fall, except that she had surmised, based on Hardin’s statements to her after the fall, that the elevator must have been “mislev-eled” and caused her to trip. Thus, as both Schindler and NPT argued in the trial court and argue in support of the trial court’s summary judgment on appeal, the evidence regarding the cause of Shanklin’s fall is insufficient to establish a genuine issue of material fact so as to meet Shank-lin’s burden in opposition to their summary-judgment motions.

“Alabama juries are not permitted to speculate as to the cause of an accident. See Brookwood Medical Ctr. v. Lindstrom, 763 So.2d 951 (Ala.2000); Turner v. Azalea Box Co., 508 So.2d 253, 254 (Ala.1987) (‘[w]hen evidence points equally to inferences that are favorable and to inferences that are unfavorable to the moving party, the evidence lacks probative value; and the evidence may not be used to support one inference over another because such use is mere conjecture and speculation’).”

Ex parte Harold L. Martin Distrib. Co., 769 So.2d at 815.

“ . Proof which goes no further than to show an injury could have occurred in an alleged way does not warrant the conclusion that it did so occur, where from the same proof the injury can, with equal probability, be attributed to some other cause. Such a condition is equivalent to an absence of evidence to the true cause, and, when seen clearly to exist, imposes on the court the duty of determining, as a matter of law, against any right of recovery dependent upon the establishment of the causal connection between the injury and the alleged cause_” ’ Maddox v. Ennis, 274 Ala. 229, 230, 231, 147 So.2d 788, 789 (1962), quoting from Southworth v. She[a], 131 Ala. 419, 30 So. 774 (1901).”

Peevy v. Alabama Power Co., 393 So.2d 971, 973 (Ala.1981).

In order to prevail against the summary-judgment motions, Shanklin was required to present substantial evidence indicating that the “misleveled” elevator caused her to fall. The evidence presented, while able to support the conclusion that Shanklin tripped on the “misleveled” elevator, points just as equally to the conclusion that Shanklin simply stumbled or tripped for no apparent reason. The after-the-fact testimony from Hardin and Smith establishing that the elevator was “misleveled” after Shanklin’s fall does not establish that the elevator was “mislev-eled” at the time Shanklin attempted to enter the elevator. Shanklin testified that she saw the floor of the elevator as she approached it. Shanklin’s own testimony was that she did not know if her foot struck anything to cause her to stumble and fall.

Because Shanklin’s evidence concerning the cause of her fall fails to establish that the elevator was “misleveled” at the time of her fall or that the condition of the elevator actually caused her to fall, Shank-lin failed to present sufficient evidence of causation to overcome the summary-judgment motions on her negligence claims against NPT and Schindler. Without evidence that the elevator caused her to fall, Shanklin also failed to present sufficient evidence to overcome the summary-judg-merit motions on her wantonness claims. See Martin, 643 So.2d at 567 (“Proximate cause is an essential element of both negligence claims and wantonness claims.”). We therefore affirm the summary judgment in favor of NPT and Schindler in its entirety.

AFFIRMED.

PITTMAN and BRYAN, JJ., concur.

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

THOMPSON, P.J., dissents, with writing.

THOMPSON, Presiding Judge,

dissenting.

At this stage of the litigation, I believe there exists a genuine issue of material fact as to whether the “misleveled” elevator caused Hattie Shanklin to trip and fall; thus, I believe the trial court improperly entered the summary judgment. Accordingly, I must respectfully dissent.

      . The existence of other fictitiously named parties in Shanklin's complaint does not prevent finality of the judgment entered by the trial court. See Griffin v. Prime Healthcare Corp., 3 So.3d 892 n. 1 (Ala.Civ.App.2008).
      “When there are multiple defendants and the summons (or other document to be served) and the complaint have been served on one or more, but not all, of the defendants, the plaintiff may proceed to judgment as to the defendant or defendants on whom process has been served and, if the judgment as to the defendant or defendants who have been served is final in all other respects, it shall be a final judgment.”
      Rule 4(f), Ala. R. Civ. P.

      . The trial court based its summary judgment on different grounds than the failure of Shanklin’s proof of causation; however, we may affirm a summary judgment on any valid ground, subject to certain limitations not applicable here. Liberty Nat’l Life Ins. Co. v. University of Alabama Health Servs. Found., P.C., 881 So.2d 1013, 1020 (Ala.2003).


author: WOODALL, Justice.

text:
    Ex parte Hattie B. SHANKLIN. (In re Hattie B. Shanklin v. New Pilgrim Towers, L.P., and Schindler Elevator Corporation).
    1091355.
    Supreme Court of Alabama.
    Sept. 24, 2010.
    Ronald 0. Gaiser, Jr., and John C. Johnston of Gaiser and Johnston, Birmingham, for petitioner.
   WOODALL, Justice.

The petition for the writ of certiorari is denied.

In denying the petition for the writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Civil Appeals’ opinion. Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973).

WRIT DENIED.

COBB, C.J., and LYONS, STUART, SMITH, BOLIN, PARKER, MURDOCK, and SHAW, JJ., concur.


author: MOORE, Judge.

text:
    John S. CAPONE, Jr. v. Beverly A. CAPONE.
    2090258.
    Court of Civil Appeals of Alabama.
    July 16, 2010.
    Certiorari Denied Sept. 10, 2010 Alabama Supreme Court 1091482.

      Sara C. Semmes of Legal Clinic of Sem-mes & Semmes, P.C., Anniston, for appellant.
    Bruce N. Adams, Anniston for appellee.
   MOORE, Judge.

John S. Capone, Jr. (“the former husband”), appeals from a judgment of the Calhoun Circuit Court increasing his periodic-alimony obligation to Beverly A. Capone (“the former wife”). We reverse.

Procedural History

This is the third time these parties have been before the court. See Capone v. Capone, 962 So.2d 835 (Ala.Civ.App.2006) (“Capone /”), and Capone v. Capone, 23 So.3d 689 (Ala.Civ.App.2009) (“Capone II ”). The procedural history of this case is set forth in Capone II:

“On August 10, 2005, the Calhoun Circuit Court entered a judgment divorcing the parties based, in part, on the court’s finding that the former husband had committed adultery. The divorce judgment also divided the parties’ marital property; awarded the former wife $2,500 per month in periodic alimony; awarded the former wife 25% of the former husband’s military-retirement benefits upon his receipt of those benefits, provided that ‘the $2,500-per-month alimony payment [would] be reduced by the monthly retirement-benefit payment, once the [former] wife beg[an] receiving that payment’; and ‘required the [former] husband to name the [former] wife as a beneficiary of his survivor benefit plan.’ Capone [v. Capone ], 962 So.2d [835,] 886 [(Ala.Civ.App.2006) (‘Capone I ’) ]. The former husband appealed from the divorce judgment.
“On appeal, this court determined that the trial court had erred in finding that the former husband had committed adultery, in awarding the former wife 25% of the former husband’s military-retirement benefits upon his receipt of those benefits, and in requiring the former husband to name the former wife as a beneficiary of his military survivor benefit plan. Capone [7], 962 So.2d at 841. This court reversed the trial court’s judgment and remanded the cause for the trial court to reconsider the alimony and property-division aspects of the judgment. Id.
“While Capone [/] was pending on appeal, the judge who had tried the case retired. Accordingly, on remand the case was assigned to a new judge. After reviewing this court’s instructions, the transcript of the trial, and the exhibits, the new judge entered an amended divorce judgment on March 26, 2007 (‘the amended divorce judgment’). Specifically, the amended divorce judgment deleted the portions of the divorce judgment finding that the former husband had committed adultery, awarding the former wife 25% of the former husband’s military-retirement benefits upon his receipt of those benefits, and requiring the former husband to name the former wife as a beneficiary of his military survivor benefit plan. In addition, the former husband’s monthly periodic-alimony obligation was reduced to $1,977. There is nothing in the record indicating that either party filed a post-judgment motion. Furthermore, no appeal was taken from the amended divorce judgment.
“On September 12, 2007, the former husband filed a petition to modify his periodic-alimony obligation. On October 9, 2007, the former wife filed an answer to the former husband’s petition and counterclaimed for an increase in the former husband’s periodic-alimony obligation. Following ore tenus proceedings on July 21, 2008, [at which Judge Mannon Bankson, Jr., presided,] the trial court entered a judgment on July 23, 2008, [increasing the former husband’s periodic-alimony obligation to $2,500 per month].”

Capone II, 23 So.3d at 690.

In addressing the appeal in Capone II, this court concluded that the trial court had failed to use the correct standard to modify the former husband’s periodic-alimony obligation. 23 So.3d at 692. Therefore, this court “reverse[d] the trial court’s judgment and remandfed] the cause for the trial court to determine, based on the evidence adduced at the trial, whether the former husband’s periodic-alimony obligation should be modified in accordance with the standard set forth in Ex parte Edererl, 900 So.2d 424, 426 (Ala.2004) ].” Id. Upon remand, Judge Brenda S. Sted-ham was occupying the seat previously occupied by Judge Bankson. After reviewing the transcript of the trial conducted by Judge Bankson, Judge Stedham entered a judgment finding “that there was both a material change in (a) the financial needs of the [former wife] and (b) the financial ability of the [former husband] to respond to those needs.” Accordingly, the trial court entered a judgment increasing the former husband’s periodic-alimony obligation to $2,700 per month and entering a judgment against the former husband for $10,122.00, representing the amount of alimony that had accrued based on the difference between the previous monthly alimony amount and the modified alimony amount. The former husband timely appealed.

Standard of Review

“Because Judge [Stedham] reviewed the record of the bench trial conducted by Judge [Bankson] and heard no oral testimony, the ore tenus rule does not apply to our review of the judgment [s]he rendered. See Ex parte Horn, 718 So.2d 694, 705 (Ala.1998). We review de novo Judge [Stedham’s] conclusions of law and [her] application of law to the facts. See Ex parte J.E., 1 So.3d 1002, 1008 (Ala.2008).”

Hanks v. Spann, 33 So.3d 1234, 1237 (Ala. Civ.App.2009).

Discussion

On appeal, the former husband argues that the trial court exceeded its discretion in increasing his periodic-alimony obligation because, he says, the evidence did not indicate that there has been a material change in the financial needs of the former wife.

“ ‘ “An obligation to pay alimony may be modified only upon a showing of a material change in circumstances that has occurred since the trial court’s previous judgment, and the burden is on the party seeking a modification to make this showing. Thus, the moving party must show a material change in the financial needs of the payee spouse and in the financial ability of the payor spouse to respond to those needs.” ’ ”

Ex parte Ederer, 900 So.2d 424, 426 (Ala. 2004) (quoting Ederer v. Ederer, 900 So.2d 420, 422 (Ala.Civ.App.2003), quoting in turn Glover v. Glover, 730 So.2d 218, 220(Ala.Civ.App.l998)).

As noted previously, the trial court last fixed the alimony obligation of the former husband in its March 26, 2007, amended judgment. That judgment was based on evidence relating to the financial and other circumstances of the parties as those circumstances existed in 2005 at the time of the original divorce trial. Therefore, in determining whether the alimony provisions of the March 26, 2007, amended judgment should be modified, we will review the record to ascertain whether any material change of circumstances has arisen since 2005.

The evidence in the record indicates that, in 2005, the former wife was unemployed due to an inability to work, that she was living in her mother’s home, and that she owed two debts with combined monthly payments totaling $1,976.57. At the time of the trial on the competing modification petitions in 2008, the former wife continued to be unemployed due to an inability to work and continued to live in her mother’s home. The former wife had reduced her two debt payments to $250.99 per month, but she had incurred an unstated amount of other debt. In the year preceding the trial, the former wife had acquired $10,000 in savings and had managed to donate $4,063 to charities. The former wife testified that her current living expenses amounted to $1,992 per month. The record does not show any material change in the circumstances or financial needs of the former wife since 2005.

The former wife testified that her standard of living had decreased from the time of the parties’ marriage because, she said, there are no funds built into her budget for extravagances or luxuries. The trial court had already considered that factor when calculating the original award of alimony in 2007. See O’Neal v. O’Neal, 678 So.2d 161, 165 (Ala.Civ.App.l996)(“The purpose of periodic alimony is to support the former dependent spouse and to enable that spouse, to the extent possible, to maintain the status that the parties had enjoyed during the marriage, until the spouse is self-supporting or maintaining a status similar to the one enjoyed during the marriage.”). In the modification proceedings, the issue was whether the financial needs of the former wife had changed since 2005, not since the time of the marriage. It appears that the former wife maintained the same standard of living at the time of the modification trial as she did in 2005.

The former wife testified that she wanted to move out of her mother’s home and establish a home of her own. The former wife estimated that such a move would result in an increase in her monthly living expenses to $2,700. The trial court evidently relied on that testimony in increasing the alimony to the exact amount the former wife testified she would need if she moved out of her mother’s home. It is undisputed, however, that the former wife had not moved out of her mother’s home or incurred any of the additional living expenses of which she testified. A trial court is not authorized to adjust alimony based on future events with speculative impact on the financial circumstances of the parties. See, e.g., Blink v. Blink, 528 So.2d 860 (Ala.Civ.App.1988) (where former husband had not yet retired, trial court correctly denied alimony-modification petition due to only speculative proof as to material change of circumstances).

Although there was evidence indicating that the former husband’s income had increased since the time of the parties’ divorce, that evidence is not enough to warrant a modification of alimony without “evidence ... indicating that the former wife’s corresponding financial needs had increased.” Newsome v. Newsome, 984 So.2d 463, 466 (Ala.Civ.App.2007) (reversing judgment increasing the former husband’s periodic-alimony obligation where “the former husband’s financial ability to support the former wife had increased” but there was no “evidence ... indicating that the former wife’s corresponding financial needs had increased”). Accordingly, we reverse the trial court’s judgment modifying the former husband’s periodic-alimony obligation and remand this cause with instructions to the trial court to enter a judgment denying the former wife’s petition for modification.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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


author: BRYAN, Judge.

text:
    Carol J. TUCKER and Donald L. Tucker v. Luther Gene MOOREHOUSE.
    2081032.
    Court of Civil Appeals of Alabama.
    July 23, 2010.
    Certiorari Denied Sept. 10, 2010 Alabama Supreme Court 1091542.

      Charles M. Thompson, Birmingham, for appellants.
    Fred W. Teague, Ashville, for appellee.
   On Application for Rehearing

BRYAN, Judge.

The no-opinion affirmance of February 12, 2010, is withdrawn, and the following is substituted therefor.

Carol J. Tucker and Donald L. Tucker, the defendants below, appeal from a judgment finding that a dirt roadway located on their property (“the disputed roadway”) is part of a public dirt road named Lower Mill Road, ordering the Tuckers to remove a chain blocking the southern end of the disputed roadway, and enjoining the Tuckers from blocking the disputed roadway in the future. We reverse and remand with instructions.

Luther Gene Moorehouse, the plaintiff below, owns a parcel of land (“the Moore-house parcel”) in St. Clair County that is generally rectangular in shape. The Tuckers own a parcel of land (“the Tucker parcel”) in St. Clair County that abuts the entire northern boundary of the Moore-house parcel and the northern half of the eastern boundary of the Moorehouse parcel. The portion of the Tucker parcel that abuts the eastern boundary of the Moore-house parcel is a narrow strip of land (“the strip”) bounded on the east by a parcel of land owned by persons who are not parties to this action. A couple named Suttle, who are not parties to this action, own a square-shaped parcel of land (“the Suttle parcel”) in St. Clair County that abuts the southern half of the eastern boundary of the Moorehouse parcel and the southern boundary of the strip.

Access to the Moorehouse parcel, the Tucker parcel, and the Suttle parcel is provided by a dirt road named Lower Mill Road. Lower Mill Road runs generally north from Liberty Road, the closest paved road, across several parcels of land that are owned by persons who are not parties to this action until it reaches the southeastern corner of the Suttle parcel. Upon reaching the southeastern corner of the Suttle parcel, Lower Mill Road runs diagonally across the Suttle parcel in a generally northwesterly direction to the northwestern corner of the Suttle parcel. At the northwestern corner of the Suttle parcel, Lower Mill Road intersects with the southern terminus of the disputed roadway, which is located on the strip.

Moorehouse contends that the disputed roadway is part of Lower Mill Road; that Lower Mill Road was determined to be a public road in a 1979 action (“the 1979 action”) brought by the Tuckers’ predecessors in title, who were Donald L. Tucker’s parents, against the Suttles; and that, therefore, they have the right to use the disputed roadway. The Tuckers, on the other hand, contend that the disputed roadway is not part of Lower Mill Road; rather, they contend, the disputed roadway is their private driveway. Specifically, the Tuckers contend that, when Lower Mill Road was determined to be a public road in the 1979 action, it ran from the northwestern corner of the Suttle parcel in a generally northwesterly direction through the middle of a pasture on the Moorehouse parcel to the Tucker parcel rather than in a northerly direction on the strip. They further contend that, after Lower Mill Road was adjudicated to be a public road in the 1979 action, Moorehouse’s parents, who are his predecessors in title, entered into a written agreement with Donald L. Tucker’s parents titled “Covenant Running With the Land.” According to the Tuckers, this Covenant Running With the Land provided that Moorehouse’s parents would deed the strip to Donald L. Tucker’s parents so that they could use the strip to access their parcel in exchange for Donald L. Tucker’s parents’ agreeing that they and their heirs, successors, and assigns would abandon their use of the portion of Lower Mill Road that ran in a northwesterly direction through the middle of a pasture on the Moorehouse parcel. The Tuckers contend that Moorehouse’s parents subsequently deeded the strip to Donald L. Tucker’s parents; that Donald L. Tucker’s parents constructed a private driveway on the strip, which is the disputed roadway; and that Donald L. Tucker’s parents and their assigns, i.e., the Tuckers, abandoned their use of the portion of Lower Mill Road that ran in a northwesterly direction through the middle of a pasture on the Moorehouse parcel. Thus, the Tuckers contend that Moorehouse does not have the right to use the disputed roadway because, they say, it is their private driveway rather than a portion of Lower Mill Road.

At some point before February 26, 2008, the Tuckers prevented Moorehouse from using the disputed roadway by placing a chain across its southern terminus, which prompted Moorehouse to sue the Tuckers on February 26, 2008. Moorehouse alleged that the Tuckers had blocked Lower Mill Road, that Lower Mill Road had been adjudicated to be a public road in the 1979 action, that Lower Mill Road was still a public road, and that Moorehouse needed to use the portion of Lower Mill Road abutting the eastern boundary of his parcel in order to access the northern portions of his parcel. As relief, Moorehouse sought a judgment determining that Lower Mill Road was still a public road, an injunction preventing the Tuckers from blocking Lower Mill Road in the future, and an award of damages to compensate him for losing the use of the portion of Lower Mill Road that abutted the eastern boundary of his parcel while it was blocked by the Tuckers.

Answering, the Tuckers denied the material allegations of Moorehouse’s complaint and asserted various affirmative defenses.

The trial court set Moorehouse’s action for trial on November 27, 2007. On February 4, 2008, the trial court entered a judgment stating:

“This cause having heretofore been set for final hearing on November 27, 2007, and the Plaintiff, Luther Gene Moorehouse being present in Court with his attorney, the Honorable Fred W. Teague, and the Defendants, Donald L. Tucker and Carol L. Tucker, being present in Court with their attorney the Hon. Dale Stracner, the Court proceeded to consider the issues raised in the respective pleadings.
“Therefore, after a consideration of the pleadings filed in this cause; a review of the case styled Robert C. Tucker v. Gene Courtney Suttle and Wanda Wideman Suttle, St. Clair County Circuit Court Case Number: CV 1979-3, and a discussion with the said attorneys at the bench, the Court is of the opinion that [Moorehouse’s] complaint or petition is due to be granted.
“Therefore, the Court finds and it is hereby Ordered, Adjudged and Decreed that:
“1.) That a right of way as a public road was previously established in that certain St. Clair County Case styled Robert C. Tucker v. Gene Courtney Sut-tle and Wanda Wideman Suttle, Civil Action Number: CV 1979-3.
“2.) That the Court finds that the ruling in Robert Tucker v. Gene Courtney Suttle and Wanda Wideman Suttle is applicable to the issues raised in this herein stated cause.
“That the said public right of way established in said cause runs adjacent to [Moorehouse’s and the Tuckers’ land], which were subject to the right of way established in Tucker v. Suttle, et at, supra.
3.) Therefore, the Court finds that the Defendants, Donald J. Tucker and Carol J. Tucker have no right or authority to obstruct, block or prevent the use of the public right of way stated herein.
“It is hereby Ordered, Adjudged and Decreed that the Defendants, Donald J. Tucker and Carol J. Tucker, immediately remove the chain that is presently blocking the passage of the said public road way.
“It is further Ordered, Adjudged and Decreed that the said Defendants, Donald J. Tucker and Carol J. Tucker are permanently enjoined from blocking, obstructing or otherwise preventing the public use of the said right of way.”

(Emphasis altered.) However, on June 4, 2008, the trial court granted a Rule 60(b), Ala. R. Civ. P., motion filed by the Tuckers and vacated the judgment entered on February 4, 2008.

On September 24, 2008, the Tuckers moved the trial court for a summary judgment. As the primary ground of their summary-judgment motion, they asserted that the disputed roadway was their private driveway, that the disputed roadway was not part of Lower Mill Road, and, therefore, that Moorehouse did not have a right to use the disputed roadway.

As evidence in support of their summary-judgment motion, the Tuckers submitted, among other things, contemporary aerial photographs of the area where their parcel, the Moorehouse parcel, and the Suttle parcel are located; the affidavit of Donald L. Tucker; the Covenant Running With the Land executed by Moorehouse’s parents and Donald L. Tucker’s parents in 1981; a 1981 deed in which Moorehouse’s parents had conveyed the strip to Donald L. Tucker’s parents; and a deed in which Donald L. Tucker’s parents had conveyed the strip to the Tuckers.

On January 2, 2009, Moorehouse filed an affidavit in opposition to the Tuckers’ summary-judgment motion and filed his own summary-judgment motion. Moorehouse’s affidavit stated that the trial court had been correct in finding in its February 4, 2008, judgment that the 1979 action had adjudicated the same issues raised by Moorehouse’s action. As the ground of his own summary-judgment motion, Moore-house asserted that the disputed roadway was a public road by virtue of its being adjudicated to be a public road in the 1979 action.

Following a hearing, the trial court signed an order denying the Tuckers’ summary-judgment motion on February 9, 2009. On April 28, 2009, the trial court set the action for a bench trial on May 27, 2009.

Before the trial court received any evidence at the May 27 trial, the parties’ attorneys explained their clients’ positions. The trial court then stated:

“THE COURT: Let’s hear from Mr. Tucker, because he certainly has the burden of telling me why this road should close. Let’s do our best to keep it quick.”

The Tuckers then called Donald L. Tucker as their sole witness. Mr. Tucker testified as follows. When Lower Mill Road was adjudicated to be a public road in the 1979 action, it ran through the middle of a pasture on the Moorehouse parcel and the disputed roadway did not exist. After Lower Mill Road was adjudicated to be a public road in the 1979 action, Moore-house’s parents and Donald L. Tucker’s parents entered into a contractual agreement that was memorialized in the Covenant Running With the Land. The agreement provided that Moorehouse’s parents would convey the strip to Donald L. Tucker’s parents to use for accessing their parcel in exchange for Donald L. Tucker’s parents’ agreeing that they and their heirs, successors, and assigns would abandon their use of the portion of Lower Mill Road that ran through the middle of the Moorehouse parcel. Moorehouse’s parents subsequently conveyed the strip to Donald L. Tucker’s parents, and Donald L. Tucker’s parents subsequently conveyed the strip to the Tuckers.

In addition to Donald L. Tucker’s testimony, the Tuckers introduced into evidence contemporary aerial photographs depicting the area where their parcel, the Moorehouse parcel, and the Suttle parcel are located. On Defendants’ Exhibit 1, which is one of those aerial photographs, Tucker marked the location of the portion of Lower Mill Road that he contended had run through a pasture in the middle of the parcel now owned by Moorehouse. He marked the X in a location covered with vegetation where no road is visible. Donald L. Tucker testified that the growth of vegetation after his parents had abandoned their use of that portion of Lower Mill Road in 1981 accounted for the absence of any visible sign of a road where he marked the X. The Tuckers also introduced into evidence, among other things, the Covenant Running With the Land; the deed in which Moorehouse’s parents conveyed the strip to Donald L. Tucker’s parents; the deed in which Donald L. Tucker’s parents conveyed the strip to the Tuckers; a survey of the strip; a copy of the judgment entered by the St. Clair Circuit Court in the 1979 action; and a copy of the supreme court’s opinion in Suttle v. Tucker, 398 So.2d 266 (Ala.1981), the appeal of the 1979 action.

The opinion of the supreme court was delivered on May 1, 1981. In pertinent part, the Covenant Running With the Land stated:

“This agreement, executed at Pell City, St. Clair County, Alabama, on this the 6th day of October, 1981, by and between J.L. Moorehouse and wife, Ruby Moorehouse, hereinafter referred to as parties of the first part, and Robert C. Tucker and wife, Jessie S. Tucker, hereinafter referred to as parties of the second part. It being the intent and purpose of this contract to provide the parties of the second part access to establish a road to their property and to assure to the parties of the first part that the parties of the second part and their heirs, successors, and assigns, shall be deemed to have abandoned that portion of the land belonging to the parties of the first part which was previously adjudicated to be a public road. That the parties of the first part and their heirs, successors and assigns and the parties of the second part and their heirs, successors and assigns shall not interfere with the peaceful possession of their respective properties.
“In furtherance of this intent, the parties of the first part and the parties of the second part enter into this contract and agreement which is to run with the land under the following terms and conditions:
“1. That the parties of the first part agree to deed in fee simple to the parties of the second part, the following described real estate:
“[legal description of the strip]
“2. That the parties of the second part agree that neither they nor their assigns, successors or heirs shall now, nor forever, seek to establish a public road across the property belonging to the parties of the first part. This shall include that area heretofore adjudicated by the Court of St. Clair County, Alabama, to be a public road across the property belonging to the parties of the first part.
“4. It is expressly understood and agreed that this contract in all its terms and conditions shall be binding on and shall enure to the benefit of the heirs, executors, administrators, successors and assigns of the parties hereto.”

(Emphasis added.) Moorehouse’s parents executed the deed conveying the strip to Donald L. Tucker’s parents on October 19, 1981.

Following the trial on May 27, the trial court, on June 10, 2009, entered a judgment stating:

“This case came on to be heard on the 27 day of May, 2009.... The issue in this case is whether or not the road in question continues to be a public road. Testimony was taken ore tenus and after consideration of the pleadings, motions for summary judgment, affidavits and exhibits filed herewith, and a review of the case ‘Tucker v. Suttle’ CV-1979-3, the Court is of the opinion that the road declared a public road in said 1979 has not been vacated by any act or resolution of the City of Odenville or St. Clair County.
“The Court therefore finds and decrees that the order entered by this Court on [February ⅛,] 2008 is adopted and shall continue as set out therein.”

(Emphasis added.)

On July 12, 2009, the Tuckers timely appealed to the supreme court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

Because the trial court’s judgment followed a bench trial in which the court heard ore tenus evidence, the following principles govern our review:

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

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

The Tuckers first argue that the trial court erred in denying their summary-judgment motion. However, when there is a trial on the merits after the denial of a summary-judgment motion, we do not review the denial of the summary-judgment motion. 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.’ ” (quoting Mitchell v. Folmar & Assocs., LLP, 854 So.2d 1115, 1116 (Ala.2003))). Because there was a trial on the merits after the denial of the Tuckers’ summary-judgment motion, we will not review the denial of their summary-judgment motion. See Beiersdoerfer and Mitchell.

Second, the Tuckers argue that the uncontroverted evidence established that the disputed roadway was not part of Lower Mill Road when Lower Mill Road was determined to be a public road in 1979. The trial court found in its February 4, 2008, judgment that the disputed roadway was part of Lower Mill Road when it was determined to be a public road in the 1979 action, and the trial court adopted that finding in its June 10, 2009, judgment. Moreover, the trial court found in its June 10, 2009, judgment that Lower Mill Road had not been vacated subsequent to its being determined to be a public road in the 1979 action. Because the trial court made those written findings of fact, the Tuckers are entitled to challenge the sufficiency of the evidence supporting the trial court’s judgment even though they did not challenge its sufficiency in the trial court. See Rule 52(b), Ala. R. Civ. P.; and Ex parte Vaughn, 495 So.2d 83, 87 (Ala.1986). In pertinent part, Rule 52(b) provides:

“When findings of fact are made in actions tried by the court without a jury, the question of the sufficiency of the evidence to support the findings may thereafter be raised whether or not the party raising the question has made in the court an objection to such findings or has made a motion to amend them or a motion for judgment or a motion for a new trial.”

In Ex parte Vaughn, the supreme court held:

“Rule 52(b) provides an exemption from the requirement of invoking a ruling by the trial court on the issue of evidentiary insufficiency when written findings of fact are made. The trial court’s ruling on the sufficiency of the evidence is implicit in a decree in which the trial judge is the trier of the facts. Moreover, by making written findings of fact, the trial judge has had the additional opportunity to reconsider the evidence and discover and correct any error in judgment which he or she may have made upon initial review. Thus, when written findings of fact are made, they serve the same useful purpose as does an objection to the trial court’s findings, a motion to amend them, a motion for a new trial, and a motion to dismiss under Rule 41(b), [Ala. R. Civ. P.] — to permit the trial judge an opportunity to carefully review the evidence and to perfect the issues for review on appeal.”

495 So.2d at 87. Accordingly, we will consider the Tuckers’ challenge of the sufficiency of the evidence supporting the trial court’s judgment.

The Covenant Running with the Land, the deed in which Moorehouse’s parents conveyed the strip to Donald L. Tucker’s parents, and the testimony of Donald L. Tucker indicate that the disputed roadway was not part of Lower Mill Road when it was determined to be a public road in the 1979 action and that the disputed roadway was a private driveway constructed by Donald L. Tucker’s parents after the supreme court delivered its opinion concluding the 1979 action. Thus, that evidence directly contradicts the trial court’s finding that the disputed roadway was part of Lower Mill Road when it was determined to be a public road in the 1979 action. Even if the trial court, as the sole judge of Donald L. Tucker’s credibility as a witness, see Woods v. Woods, 653 So.2d 312, 314 (Ala.Civ.App.1994), found that that testimony was not credible, Moore-house did not dispute the authenticity of the Covenant Running With the Land and the deed in which Moorehouse’s parents conveyed the strip to Donald L. Tucker’s parents. The Covenant Running With the Land affirmatively established that the disputed roadway was not part of Lower Mill Road when it was determined to be a public road in the 1979 action. That affirmative proof precluded the trial court from inferring from the absence of any visible sign of a road where Donald L. Tucker marked an X on Defendants’ Exhibit 1 that the disputed roadway had been part of Lower Mill Road when it was determined to be a public road in the 1979 action. No other evidence supports the trial court’s finding that the disputed roadway was part of Lower Mill Road when it was determined to be a public road in the 1979 action.

“ ‘[E]ven under the ore tenus rule, “[w]here the conclusion of the trial court is so opposed to the weight of the evidence that the variable factor of witness demeanor could not reasonably substantiate it, then the conclusion is clearly erroneous and must be reversed.” ’ ”

Cheek v. Dyess, 1 So.3d 1025, 1029 (Ala.Civ.App.2007) (quoting B.J.N. v. P.D., 742 So.2d 1270, 1274 (Ala.Civ.App.1999), quoting in turn Jacoby v. Bell, 370 So.2d 278, 280 (Ala.1979)). Given the undisputed authenticity of the Covenant Running with the Land, we conclude that the trial court’s finding that the disputed roadway was part of Lower Mill Road when it was determined to be a public road “is so opposed to the weight of the evidence that the variable factor of witness demeanor could not reasonably substantiate it” and, therefore, that that finding “is clearly erroneous and must be reversed.” Cheek v. Dyess, 1 So.3d at 1029. Moreover, because that finding was essential to the trial court’s judgment in favor of Moorehouse, we reverse the judgment of the trial court and remand the action to the trial court with instructions to enter a judgment in favor of the Tuckers.

Because the Tuckers’ argument regarding the sufficiency of the evidence disposes of the appeal, we pretermit discussion of their other arguments.

APPLICATION GRANTED; NO-OPINION AFFIRMANCE OF FEBRUARY 12, 2010, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      . See Suttle v. Tucker, 398 So.2d 266 (Ala. 1981).

      . The order was stamped filed by the St. Clair Circuit Clerk on February 10, 2009, stamped filed a second time on February 11, 2009, and entered on the case-action summary maintained by the clerk on February 11, 2009; however, it does not appear to have been entered on the State Judicial Information System's case-action summary.

      . The record does not contain an order expressly denying Moorehouse’s summary-judgment motion; however, the entry of the trial court’s order setting the action for trial on May 27 is inconsistent with an intention to grant that motion.


author: THOMPSON, Presiding Judge.

text:
    Larry G. PARKER v. Kristina S. HARVILLE.
    2090443.
    Court of Civil Appeals of Alabama.
    Aug. 6, 2010.
    Rehearing Denied Oct. 22, 2010.

      Sheila F. Morgan, Tuscumbia, for appellant.
    Bill Marthaler, Tuscumbia, for appellee.
   THOMPSON, Presiding Judge.

Larry G. Parker (“the father”) appeals from the judgment of the Colbert Circuit Court denying the State of Alabama’s petition, apparently filed on the father’s behalf, to modify his child-support obligation. For the reasons stated herein, we affirm.

The father and Kristina S. Harville (“the mother”) were divorced in October 2000. Two children, who were minors at all times relevant to the present litigation, were born of the parties’ marriage. As part of the divorce judgment, the father was ordered to pay to the mother $807 monthly as support for the minor children.

On June 13, 2008, the State of Alabama (“the State”) filed a petition to modify the father’s child-support obligation. It alleged that since the entry of the divorce judgment the father had experienced a decrease in income and that the father’s child-support obligation should be modified to reflect this reduction in income. The father filed a document that he styled as an answer in which he admitted the allegations of the State’s petition. The record does not indicate that the mother filed an answer to the State’s petition.

The trial court held a hearing on the petition on December 12, 2008. At the hearing, the father testified that he was employed by Auburn University as a construction worker and had been employed with Auburn University for the preceding 13 months. He testified that he was paid approximately $28,000 annually, that he paid approximately $240 monthly for health insurance for himself and the children, and that he paid approximately $85 monthly for dental and vision insurance for himself and the children. The father testified that, before going to work for Auburn University, he had been a self-employed carpenter. The father’s federal income-tax forms were offered into evidence and showed that the father reported total income of $4,518 in 2005, $12,921 in 2006, and $28,571 in 2007. The father testified that it had “been a long time” since he had held a job making more than $28,000 annually.

The mother testified that the parties were last in court in 2004 and that the children’s expenses had increased since then. The mother stated that the father had been ordered in the divorce judgment to provide health insurance for the children but that, for most of the time between 2003 and 2007, he had failed to do so. Instead, her new husband, who she married in March 2002, provided health insurance for the children. She testified that the father was currently providing health insurance for the children but that she was asking the trial court to allow her to maintain health insurance on the children because she feared the father, who she testified was not dependable, would drop the coverage on the children.

The mother testified that she received a monthly disability check in the amount of $673, which, she stated, was her only income. The mother offered into evidence an income statement showing that income and indicating that the cost to her husband of providing health insurance to the children was $149 monthly. The trial court also admitted into evidence a Form CS-42 indicating a recommended child-support amount of $680 to be paid monthly by the father. The record does not indicate who prepared that document.

There was no evidence offered at trial regarding the basis of the father’s current child-support obligation of $807 monthly, i.e., whether the child-support obligation was determined by reference to the child-support guidelines set forth in the appendix to Rule 32, Ala. R. Jud. Admin, (“the guidelines”), or whether that obligation constituted a deviation from those guidelines. None of the parties offered into evidence a copy of the divorce judgment or any other order that may have been entered relative to the father’s child-support obligation. Moreover, there was no evidence of the mother’s and the father’s income at the time the trial court fixed the father’s current child-support obligation.

On March 24, 2009, the trial court entered a judgment denying the State’s petition to modify child support. The trial court found that there was no evidence of a material change in circumstances warranting a modification of the father’s child-support obligation. The trial court did not address the mother’s claim for postminority support. After extended postjudgment proceedings culminating with the trial court’s denial of the father’s postjudgment motion, the father filed a timely appeal to this court.

“[MJatters of child support, including modifications thereof, are within the discretion of the trial court and ‘will not be disturbed on appeal, absent a showing that the ruling is not supported by the evidence and, thus, is plainly and palpably wrong.’ Spears v. Spears, 903 So.2d 135, 136 (Ala. Civ.App.2004).” Morgan v. Morgan, 964 So.2d 24, 27 (Ala.Civ.App.2007).

The father contends that the trial court erred by not calculating his child-support obligation in accordance with the guidelines. The father argues that he had experienced a substantial decrease in his income, which, he states, established a material change in circumstances as required to support a modification of his child-support obligation.

“It is well settled that a party seeking to modify a child-support obligation must demonstrate a material change in circumstances warranting the modification.” H.J.T. v. State ex rel. M.S.M., 34 So.3d 1276, 1280 (Ala.Civ.App.2009). The version of Rule 32 applicable to the present case provided, in effect, that a rebutta-ble presumption of a material change in circumstances arises

“when the difference between the existing child support award and the amount determined by application of these guidelines varies more than ten percent (10%), unless the variation is due to the fact that the existing child support award resulted from a rebuttal of the guidelines and there has been no change in the circumstances that resulted in the rebuttal of the guidelines.”

Rule 32(A)(3)(b), Ala. R. Jud. Admin, (effective for actions filed between October 4, 1993, and December 31, 2008).

In the present case, the trial court determined that there had not been a material change in circumstances relative to the father’s child-support obligation. Thus, it concluded that the child-support obligation was not due to be modified. Although the father argues that he has experienced a decline in income since the trial court’s entry of his present child-support obligation, the testimonial and documentary evidence offered at trial do not support that argument. Simply put, the record does not disclose the father’s income at the time the present child-support obligation was implemented; thus, it cannot reflect that the father’s income has declined since that time.

There is a presumption of a material change in circumstances when a change in the parties’ incomes results in a deviation of more than 10% in child support to be awarded under the guidelines from the current child-support obligation; however, that presumption does not apply when the current child-support obligation is based on a deviation from the guidelines. In the present case, there is no evidence indicating whether the father’s current child-support obligation is based on the guidelines or on a deviation therefrom. Because “the appellant has an affirmative duty of showing error upon the record,” and because “an appellate court will not presume error” on the part of the trial court, Tucker v. Nichols, 431 So.2d 1263, 1264-65 (Ala. 1983), we cannot say that the trial court erred in failing to apply the presumption of a material change in circumstances provided by Rule 32(A)(3)(b). Likewise, we cannot say that the trial court erred in concluding that there had been no material change in circumstances warranting a modification of the father’s child-support obligation.

The father next contends that the trial court erred by not requiring him to submit a CS-41 Child-Support-Obligation Income Statement/Affidavit, and he argues that the CS-42 Child-Support Guidelines form offered into evidence incorrectly provided the mother with credit for her husband’s providing health insurance for the children when, in fact, it was the father who was required to provide that insurance. The father is correct that, as a general rule, CS-41 and CS-42 forms are required to be in the record for this court to be able to review a trial court’s determination of child-support issues. See Rule 32(E), Ala. R. Jud. Admin.; Gordon v. Gordon, 804 So.2d 241, 243 (Ala.Civ.App. 2001). However, in the present case, the existence of such forms is unnecessary for this court to dispose of the father’s appeal. As we held above, we cannot conclude that the trial court erred when it held that there had not been a material change of circumstances justifying a modification to the father’s child-support obligation. No amount of information that could have been provided by those forms could alter that conclusion, given that there was no evidence in the record relative to the parties’ circumstances at the time the father’s current child-support obligation was implemented. As a result, we find no reversible error in the trial court’s failure to require the father to file a CS-41 form or in any mistakes made in the CS-42 form admitted into evidence. Cf. Rule 45, Ala. R.App. P.

The father next contends that the trial court erred in failing to give him credit for the monthly health-insurance premiums he was paying for the children. However, there is no evidence in the record indicating that the trial court did not consider that the father is required to provide the children with health insurance when it set the father’s current child-support obligation. Indeed, it is undisputed that the divorce judgment, in addition to setting the father’s child-support obligation, also required the father to provide health insurance for the children. Thus, we find no error in the trial court’s purported failure to consider that the father was providing the children with health insurance.

Finally, the father contends that he should be awarded an attorney’s fee on appeal. That request is based on his contention that the trial court’s judgment is erroneous. However, because, for the above-stated reasons, we cannot conclude that the trial court’s judgment is, in fact, in error, we conclude that there is no basis for an award of an attorney’s fee to the father on appeal.

Based on the foregoing, we conclude that the father has failed to demonstrate error on the part of the trial court. As a result, we affirm the trial court’s judgment denying the petition for a modification of his child-support obligation.

AFFIRMED.

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

      . The mother did file a counterclaim seeking postminority support for the minor children. However, she presented no evidence in support of her counterclaim at trial, and, in fact, that claim was never mentioned at trial. Thus, we conclude that the mother abandoned the claim. See Van Hoof v. Van Hoof, 997 So.2d 278, 284 n. 12 (Ala.2007) ("To the extent that the counterclaim remained viable after the motion was filed, however, it was effectively abandoned when Lord Abbett and State Street did not present their counterclaim at the trial of this case.”).