author: BRYAN, Judge.

text:
    Shirley Denise TURNER v. Carl Angelo GREEN.
    2100998.
    Court of Civil Appeals of Alabama.
    Dec. 2, 2011.

      Joshua B. Sullivan of Henslee, Robertson, Strawn & Sullivan, LLC, Gadsden, for appellant.
    Carl Angelo Green, pro se.
   BRYAN, Judge.

Shirley Denise Turner (“Shirley”) appeals from a judgment in favor of Carl Angelo Green (“Carl”). We dismiss the appeal.

On January 14, 2009, Carl, acting pro se, sued Shirley, who is one of Carl’s siblings, in the Etowah Circuit Court (“the trial court”). Carl’s complaint alleged that his and Shirley’s deceased mother, Helen Aurtmishell Green (“Helen”), had devised a parcel of real property located in Etowah County (“the property”) to him in her will (“the will”), that the will had been probated, and that Shirley had subsequently had Jane Ann Devereaux (“Jane”), who was also a child of Helen, execute a quitclaim deed purporting to convey any interest she might have in the property to Shirley. The complaint sought a determination that Carl owned the property.

The record indicates that Shirley was served with process on January 22, 2009. Acting pro se, Shirley answered the complaint on February 17, 2009. In her answer, Shirley denied that she had done anything improper, averred that Jane had known what she was signing when she signed the quitclaim deed, and averred that Helen was very sick when she executed the will.

On February 20, 2009, Carl moved for a summary judgment. On May 7, 2009, the trial court held a hearing regarding Carl’s summary-judgment motion. On May 8, 2009, the trial court entered an order stating that it was reserving its ruling on Carl’s summary-judgment motion and granting Carl 30 days to amend his complaint to state a quiet-title claim and to add any additional necessary parties.

On June 3, 2009, Carl requested that the sheriff serve process on the rest of Helen’s next of kin, i.e., Jane; Dale Bernard Green (“Dale”), one of Helen’s two surviving sons other than Carl; Alonzo H. Green (“Alonzo”), Helen’s other surviving son; and Tiffany Radford (“Tiffany”) and Terrence Radford (“Terrence”), the children of Walter Lee Bell, a son of Helen who had predeceased her. Thereafter, the sheriff attempted unsuccessfully to serve Jane, Dale, Alonzo, Tiffany, and Terrence.

On June 8, 2009, Shirley filed a pleading titled “Objection” in which she asserted that Helen had been mentally incompetent when she executed the will, that Carl had procured Helen’s execution of the will by exercising undue influence over her, and, therefore, that Carl was not entitled to a judgment determining that he was the sole owner of the property.

On November 9, 2009, an attorney filed a notice of appearance on behalf of Carl. On December 14, 2009, the trial court set the action for trial on February 1, 2010.

On February 1, 2010, the trial court held a bench trial. Although the record does not indicate that Carl had amended his complaint in accordance with the trial court’s instruction in its May 9, 2009, order, and although the record indicates that Jane, Dale, Alonzo, Tiffany, and Terrence had not yet been served with process, the trial court, on February 2, 2010, entered a judgment, which stated, in pertinent part:

“This matter having come before the Court on the 1st day of February, 2010 on the Complaint of [Carl] seeking to quiet title to [the property] and the objection filed by [Shirley] and the Court having taken testimony, ore tenus, the Court hereby finds as follows:
“1. Title to the [property] is hereby vested in the name of the [Carl]....
“2. The Court finds that [Shirley], [Alonzo], [Dale], [Jane], [Tiffany], and [Terrence] have no interest in the above described property.
“3. The Tax Assessor is directed to assess the property into the name of [Carl]....”

Shirley neither filed a Rule 59(e), Ala. R. Civ. P., postjudgment motion within 30 days after the entry of the February 2, 2010, judgment nor filed a notice of appeal within 42 days after the entry of the February 2, 2010, judgment.

On March 30, 2010, 56 days after the entry of the February 2, 2010, judgment, an attorney filed a motion titled “Motion to Reconsider” on behalf of Shirley. In pertinent part, that motion stated:

“COMES NOW, [Shirley], by and through her legal counsel, and hereby submits this Motion to Reconsider and for leave of court to assert [a] counterclaim. In support thereof, [Shirley] avers as follows:
“1) On February 2, 2010, this Court entered an Order which established rights to [the property].
“2) At the time of said hearing, [Jane], [Dale], [Alonzo], [Tiffany], and [Terrence] had not been served. Despite said fact, a hearing was held on February 1, 2010. After said hearing, this Court entered an Order which provided that the Defendants, including those who were not yet served, did not have any interest in the above described property.
“3) Due to the fact that there are still claims pending against the non-served parties, [Shirley] asserts that the Order dated February 2, 2010 is non-final. As a result, this Motion to Reconsider is timely filed.
“4) [Shirley] respectfully requests that this Court will reconsider its Order dated February 2, 2010 to consider the following facts and counterclaims which appear to have not been asserted during the previous hearing.
“5) [Shirley] respectfully requests this Court to grant leave to assert [a] counterclaim.”

(Emphasis added.) The motion then asserted a counterclaim stating claims of adverse possession and unjust enrichment against Carl. The gravamen of Shirley’s adverse-possession claim was that she owned the property because, she alleged, she had been in adverse possession of it for more than 10 years. The gravamen of her unjust-enrichment claim was that, if the property was owned by Carl, she was entitled to be compensated for improvements she had made to the property that Carl had allowed her to make without objection.

Carl filed a response in which he (1) asserted that Shirley’s motion to reconsider was untimely; (2) moved the trial court to set aside the February 2, 2010, judgment only insofar as it purported to adjudicate the rights of Jane, Dale, Alonzo, Tiffany, and Terrence on the ground that they had not been served with process before the entry of the February 2, 2010, order; and (3) sought an order authorizing service by publication on Jane, Dale, Alonzo, Tiffany, and Terrence.

The trial court held a hearing regarding Shirley’s motion on June 2, 2010. On June 3, 2010, the trial court entered an order that stated:

“THIS CAUSE coming before the Court on the 2nd day of June, 2010 on [Shirley’s] Motion to Reconsider filed herein, with the Court having heard arguments of counsel the following is hereby ORDERED, ADJUDGED, and DECREED:
“1. The Court’s Order of February 2, 2010 is hereby SET ASIDE and held for naught.
“2. [Carl] is hereby ORDERED and DIRECTED to get all Defendants served pursuant to the appropriate method under Ala. R. Civ. P. 4.2.”

(Capitalization in original.)

On June 14, 2010, Carl moved for an order authorizing service on Jane, Dale, Alonzo, Tiffany, and Terrence by publication. The trial court granted that motion on June 21, 2010.

After service was effected on Jane, Dale, Alonzo, Tiffany, and Terrence by publication, the trial court held a bench trial regarding Carl’s complaint and Shirley’s counterclaim on February 14, 2011. On February 22, 2011, the trial court entered a judgment. In pertinent part, that judgment stated:

“[H]aving taken testimony, ore tenus, the Court hereby finds as follows:
“1. Title to the [property] is hereby quieted in the name of [Carl].
“2. The Court finds that [Shirley], [Alonzo], [Dale], [Jane], [Tiffany], and [Terrence] have no interest in the ... property. Only [Shirley] appeared to contest the claim of [Carl].
“3. The Tax Assessor is directed to assess the property into the name of [Carl]....
“4. The claims of [Shirley] for Adverse Possession and Unjust Enrichment are hereby denied.”

On March 18, 2011, Shirley moved to alter, amend, or vacate the February 22, 2011, judgment. The trial court denied that motion on May 18, 2011. The February 22, 2011, judgment was appealed to the supreme court by Shirley only. The supreme court transferred Shirley’s appeal to this court pursuant to § 12-2-7(6), Ala. Code 1975.

As a threshold matter, Carl asserts that the trial court lacked jurisdiction to vacate the February 2, 2010, judgment insofar as it ruled in his favor with respect to his claim against Shirley. Rule 4(f), Ala. R. Civ. P., provides:

“When there are multiple defendants and the summons ... 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. After the entry of judgment, if the plaintiff is able to obtain service on a defendant or defendants not previously served (except, however, defendants designated as fictitious parties as allowed by Rule 9(h), [Ala. R. Civ. P.,] who shall be deemed to have been dismissed voluntarily when the case was announced ready for trial against other defendants sued by their true names), the court shall hear and determine the matter as to such defendant or defendants in the same manner as if such defendant or defendants had originally been brought into court, but such defendant or defendants shall be allowed the benefit of any payment or satisfaction that may have been made on the judgment previously entered in the action.”

The February 2, 2010, judgment adjudicated all claims against Shirley, the only defendant who had then been served with process. Thus, under Rule 4(f), the February 2, 2010, judgment was a final, ap-pealable judgment with respect to Shirley. See Franklin v. Catledge, 59 So.Sd 738, 740-41 (Ala.Civ.App.2010); Bedell v. Quality Cas. Ins. Co., 958 So.2d 344 (Ala.Civ. App.2006); and Williams v. Fox Television Stations of Birmingham, Inc., 959 So.2d 1120 (Ala.Civ.App.2006), overruled on other grounds by Ex parte Luker, 25 So.3d 1152 (Ala.2007).

Although the February 2, 2010, judgment also contained language purporting to adjudicate Carl’s claim against Jane, Dale, Alonzo, Tiffany, and Terrence, that language was void because Jane, Dale, Alonzo, Tiffany, and Terrence had not then been served with process and, therefore, the trial court did not have in personam jurisdiction over them. See Northbrook Indem. Co. v. Westgate, Ltd., 769 So.2d 890, 893 (Ala.2000) (“ ‘Failure of proper service under Rule 4 deprives a court of jurisdiction and renders its judgment void.’ Ex parte Pate, 673 So.2d 427, 428-29 (Ala. 1995).”).

With respect to Shirley, however, the February 2, 2010, judgment was a valid, final judgment for the reasons discussed above. Rule 59(e) provides that a trial court, on the motion of a party, can alter, amend, or vacate a final judgment it has entered if the motion is filed within 30 days of the entry of the judgment. The record indicates that Shirley did not file a Rule 59(e) motion within 30 days of the entry of the February 2, 2010, judgment. Rule 59 also allows a trial court, acting sua sponte, to alter, amend, or vacate a final judgment it has entered within 80 days of the entry of that judgment. See Pierce v. American Gen. Fin., Inc., 991 So.2d 212, 215 (Ala.2008). However, the record indicates that the trial court did not enter a sua sponte order altering, amending, or vacating the February 2, 2010, judgment within 30 days after it was entered.

Rule 60(b), Ala. R. Civ. P., provides that a trial court, on the motion of a party made more than 30 days after the entry of a final judgment, can relieve a party from that final judgment based on the following grounds:

“(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (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; or (6) any other reason justifying relief from the operation of the judgment.”

However, Shirley’s “Motion to Reconsider,” which was filed more than 30 days after the entry of the February 2, 2010, judgment, did not seek relief from the February 2, 2010, judgment based on any of the grounds enumerated in Rule 60(b); rather, it merely asserted that the February 2, 2010, judgment was not final with respect to Shirley because Jane, Dale, Alonzo, Tiffany, and Terrence had not been served with process before the February 2, 2010, judgment was entered. Moreover, the order entered by the trial court on June 3, 2010, which purported to vacate the February 2, 2010, judgment in its entirety, did not cite any of the grounds enumerated by Rule 60(b) as its basis. Consequently, we conclude that the trial court lacked jurisdiction to enter the June 3, 2010, order insofar as it purported to vacate the February 2, 2010, judgment with respect to Shirley because (1) the February 2, 2010, judgment was a final judgment with respect to Shirley under Rule 4(f), (2) Shirley did not file a timely Rule 59(e) motion challenging the February 2, 2010, judgment, (3) the trial court did not act sua sponte to vacate the February 2, 2010, judgment within 30 days after it was entered pursuant to Rule 59, (4) Shirley’s “Motion to Reconsider” did not seek relief from the February 2, 2010, judgment based on any of the grounds enumerated by Rule 60(b), and (5) the trial court’s June 3, 2010, order purporting to vacate the February 2, 2010, judgment with respect to Shirley did not purport to do so on the basis of any ground enumerated by Rule 60(b).

Moreover, we conclude that the February 2, 2010, judgment barred Shirley from asserting the counterclaim she included in her “Motion to Reconsider.” In pertinent part, Rule 13(a), Ala. R. Civ. P., provides:

“A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.”

In Ex parte Cincinnati Insurance Cos., 806 So.2d 376, 379-80 (Ala.2001), the supreme court stated:

“The drafters of Rule 13, Ala. R. Civ. P., intended to adopt the ‘logical-relationship’ test for determining whether a counterclaim is compulsory. ‘A counterclaim is compulsory if there is any logical relation of any sort between the original claim and the counterclaim.’ Committee Comments on 1973 adoption of Rule 13, ¶ 6. Under the logical-relationship standard, a counterclaim is compulsory if ‘(1) its trial in the original action would avoid a substantial duplication of effort or (2) the original claim and the counterclaim arose out of the same aggregate core of operative facts.’ Ex parte Canal Ins. Co., 534 So.2d 582, 584 (Ala.1988) (quoting Brooks v. Peoples Nat’l Bank of Huntsville, 414 So.2d 917, 919 (Ala.1982)). In determining whether the claims ‘arose out of the same aggregate core of operative facts,’ this Court must determine whether ‘(1) the facts taken as a whole serve as the basis for both claims or (2) the sum total of facts upon which the original claim rests creates legal rights in a party which would otherwise remain dormant.’ Canal Ins., 534 So.2d at 584.
“The United States Court of Appeals for the Eleventh Circuit has also adopted a logical-relationship test for determining whether a counterclaim is compulsory under Rule 13(a), Fed. R.Civ.P. See Republic Health Corp. v. Lifemark Hosps. of Florida, Inc., 755 F.2d 1453, 1455 (11th Cir.1985). There is a logical relationship “when “the same operative facts serve as the basis of both claims or the aggregate core of facts upon which the claim rests activates additional legal rights, otherwise dormant, in the defendant.” ’ Republic Health, 755 F.2d at 1455 (quoting Plant v. Blazer Fin. Servs., Inc., 598 F.2d 1357, 1361 (5th Cir.1979)). Moreover, the Eleventh Circuit has stated that ‘[a] determination of whether a counterclaim is compulsory is not discretionary; rather, such a determination is made as a matter of law.’ Republic Health, 755 F.2d at 1454. See also Owens v. Blue Tee Corp., 177 F.R.D. 673, 680 (M.D.Ala.1998).”

“Failure to properly assert a compulsory counterclaim in the original proceeding bars future litigation by the parties on that claim.” Sanders v. First Bank of Grove Hill, 564 So.2d 869, 872 (Ala.1990).

Carl’s claim and both of the claims Shirley purported to assert in her “Motion to Reconsider” shared a common issue: who owned the property. Consequently, we conclude that the claims Shirley purported to assert in her “Motion to Reconsider” were compulsory counterclaims that she was required to file in Carl’s action against her. The February 2, 2010, judgment was a final judgment that terminated Carl’s action with respect to Shirley, see Rule 4(f); Franklin; Bedell; and Williams, and, therefore, barred her from subsequently asserting those claims in her “Motion to Reconsider,” see Sanders. Thus, to the extent that the judgment entered by the trial court on February 22, 2011, purported to rule against Shirley both with respect to Carl’s claim against her and her claims against him, it was a nullity.

Shirley did not file a notice of appeal within 42 days after the entry of the February 2, 2010, judgment, and, therefore, this court has no jurisdiction to review that judgment. See Rules 2(a)(1), 3(a)(1), and 4(a), Ala. R.App. P. Moreover, because the February 22, 2011, judgment was void insofar as it purported to rule against Shirley, she was not aggrieved by that judgment. “A party that is not aggrieved by a trial court’s judgment cannot appeal from that judgment. See Sho- Me Motor Lodges, Inc. v. Jehle-Slauson Constr. Co., 466 So.2d 88, 88 (Ala.1985); S.W.M. v. D.W.M., 723 So.2d 1271, 1272 (Ala.Civ.App.1998); and Rush v. Heflin, 411 So.2d 1295, 1297 (Ala.Civ.App.1982).” Buco Bldg. Constructors, Inc. v. Mayer Elec. Supply Co., 960 So.2d 707, 711-12 (Ala.Civ.App.2006). Therefore, the notice of appeal Shirley filed within 42 days of the entry of the February 22, 2011, judgment did not confer jurisdiction on this court.

Under Rule 4(f), the action properly proceeded against Jane, Dale, Alonzo, Tiffany, and Terrence after they were served with process, and the February 22, 2011, judgment was valid with respect to them. However, none of them have appealed the February 22, 2011, judgment. Accordingly, this court has no jurisdiction over the appeal before us. Because we have no jurisdiction over the appeal, we must dismiss it.

APPEAL DISMISSED.

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

      . Tiffany’s name is spelled "Teffany” in some parts of the record and "Terrany” in other parts of the record; however, the record contains a document signed by her in which she spells her name as Tiffany. Therefore, we refer to her in this opinion as Tiffany.


source: Caselaw Access Project

license: Public Domain

text:
    Janice V. LOWE v. Courtney M. LOWE.
    2100672.
    Court of Civil Appeals of Alabama.
    Dec. 2, 2011.
    George M. Higginbotham, Bessemer, for appellant.
    Jay E. Tidwell of Cloud & Tidwell, LLC, Birmingham, for appellee.
   BRYAN, Judge.

Janice V. Lowe (“the former wife”) appeals from a judgment entered by the Jefferson Circuit Court (“the trial court”) that modified custody of two children who were born during her marriage to Courtney M. Lowe (“the former husband”) and that denied her request for an award of an alimony arrearage.

The record on appeal reveals that the parties were divorced by the Talladega Circuit Court in November 2004. Pursuant to the divorce judgment, which incorporated an agreement of the parties, the parties were purportedly awarded joint legal and physical custody of their three children, but the judgment also indicated that the children’s primary residence would be the former wife’s residence, that the former husband was awarded visitation with the children, and that the former husband would pay child support. In September 2005, the former husband filed a petition to modify custody of the children in the Talladega Circuit Court, and, in October 2005, the former wife filed a petition alleging that the former husband owed a child-support arrearage. Upon agreement of the parties, the proceedings were transferred to the trial court in October 2005. Thereafter, the parties filed additional requests for relief from and/or modification of their divorce judgment. In May 2008, the trial court entered a judgment that confirmed an agreement reached by the parties on issues pending before the trial court.

The present action, case no. DR-05-2673.01, was initiated on April 16, 2009, when the former wife filed a petition for a rule nisi alleging that the former husband owed an arrearage in his child-support, alimony, and postminority-educational-sup-port obligations. On December 21, 2009, the former husband filed a petition to modify custody of the parties’ two children who were still minors, and he sought an award of child support payable by the former wife. On December 1, 2010, the trial court entered a judgment that modified custody of the parties’ two minor children and set forth the former wife’s visitation schedule. Although the former husband had specifically requested an award of child support, the trial court’s judgment states: “It is noted that there was no evidence presented as to the parties’ incomes, and no child-support forms were submitted to the Court. Therefore, the issue of child support is reserved.”

The former wife filed an “application for rehearing,” which was subsequently denied by the trial court, and, on April 15, 2011, she filed a notice of appeal from the order entered on December 1, 2010. The record submitted on appeal does not contain any further submissions or orders relating to child support.

Before we can address the issues raised by the former wife on appeal, we must determine whether this court has jurisdiction over the former wife’s appeal in light of the fact that the order from which the former wife appealed did not adjudicate all the issues properly before that court; specifically, the order did not adjudicate the former husband’s request for an award of child support. This court, in Sexton v. Sexton, 42 So.3d 1280, 1282 (Ala.Civ.App. 2010), was faced with similar circumstances. In that case, we stated:

“Although neither party has addressed whether this court has jurisdiction to hear this appeal, ‘jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.’ Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987). Generally, an appeal will lie only from a final judgment, and if there is not a final judgment then this court is without jurisdiction to hear the appeal. Hamilton ex rel. Slate-Hamilton v. Connally, 959 So.2d 640, 642 (Ala.2006). A judgment is not final if it fails to completely adjudicate all issues between the parties. Giardina v. Giardina, 39 So.3d 204, 207 (Ala.Civ.App.2009) (citing Butler v. Phillips, 3 So.3d 922, 925 (Ala.Civ.App. 2008)).”

Id.

In Sexton, the trial court reserved ruling on both parties’ request for an award of child support in a divorce action. Id. at 1283. We concluded that the appeal was taken from a nonfinal judgment because it did not “‘dispose[] of all claims or the rights and liabilities of all parties.’ ” Id. (quoting Carlisle v. Carlisle, 768 So.2d 976, 977 (Ala.Civ.App.2000)). Because the trial court in the present case did not “adjudicate all the issues properly before that court,” Sexton, 42 So.3d at 1283, we must conclude that the former wife’s appeal was taken from a nonfinal judgment and that her appeal must be dismissed. Id. (quoting Young v. Sandlin, 703 So.2d 1005, 1008 (Ala.Civ.App.1997), quoting in turn Powell v. Republic Nat’l Life Ins. Co., 293 Ala. 101, 102, 300 So.2d 359, 360 (1974)) (“ ‘ “When it is determined that an order appealed from is not a final judgment, it is the duty of the Court to dismiss the appeal ex mero motu.” ’ ”).

APPEAL DISMISSED.

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

      . We note that the record on appeal does not contain a transcript of the ore tenus proceedings in this case. However, the record does contain a statement of the evidence that was approved by the trial court pursuant to Rule 10(d), Ala. R.App. P.

      . We note that this case is distinguishable from cases such as Parker v. Parker, 946 So.2d 480, 486 (Ala.Civ.App.2006), in which this court held that a divorce judgment was final despite the fact that the trial court had reserved ruling on the issue of child support. In Parker, the trial court reserved ruling on the issue of child support because of the noncustodial parent’s lack of income, and we held that, because the trial court did not reserve ruling on the child-support issue pending the occurrence of a specific event, such as the submission of child-support forms, the judgment was final. Id. See also M.S.M. v. M.W.M., 72 So.3d 626, 636 (Ala.Civ.App. 2011) (holding that a divorce judgment that suspended the noncustodial parent's child-support obligation because of the noncustodial parent’s unemployment was a final judgment). In the present case, there is no indication that the former wife was unemployed or that she otherwise lacked income from which she could pay child support. Instead, the record indicates that there was simply no evidence presented by the parties from which the trial court could have determined the former wife’s child-support obligation. See Tomlinson v. Tomlinson, 816 So.2d 57, 58 (Ala.Civ.App.2001) (dismissing an appeal as having been taken from a nonfinal judgment when the trial court’s judgment stated that it would determine the noncustodial parent's child-support obligation upon submission of the appropriate child-support forms).


author: MOORE, Judge. BRYAN, Judge,

text:
    Matthew D. HARBIN v. Augustine B. HARBIN.
    2100596.
    Court of Civil Appeals of Alabama.
    Dec. 2, 2011.
    Thomas H. Nolan, Jr., of Wright, Green, P.C., Mobile; and Molly Sullivan of Claude D. Boone, P.C., Mobile, for appellant.
    Lawrence J. Hallett, Jr., Mobile, for ap-pellee.
   MOORE, Judge.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(D & F), Ala. R.App. P.; Rule 701, Ala. R. Evid.; Ala. Code 1975, §§ 30-3-169.3 and 30-3-169.4; Ex parte Foley, 864 So.2d 1094, 1099 (Ala. 2003); Adams v. Adams, 21 So.3d 1247, 1252 (Ala.Civ.App.2009); Cheek v. Dyess, 1 So.3d 1025, 1029 (Ala.Civ.App.2007); T.J.H. v. S.N.F., 960 So.2d 669, 673 (Ala. Civ.App.2006); Leonard v. Leonard, 479 So.2d 1279, 1281 (Ala.Civ.App.1985); and Newsome v. State, 570 So.2d 703, 714 (Ala. Crim.App.1989).

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

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

BRYAN, Judge,

concurring in part and dissenting in part.

This is a postdivorce proceeding that involves the proposed relocation of the principal residence of the seven-year-old child born during the marriage of Matthew D. Harbin (“the father”) and Augustine B. Harbin Steed (“the mother”). The Mobile Circuit Court overruled the father’s objection to the proposed relocation of the child, and a majority of this court has affirmed that ruling after determining that the mother overcame the presumption found in § 30-3-169.4, Ala.Code 1975, i.e., that a change of the child’s principal residence is not in the best interest of the child. Because my review of the record leads me to conclude that the mother failed to meet her burden, I respectfully dissent from the decision reached by the majority to affirm the trial court’s judgment as to this issue. As I have stated before:

“I do not take lightly this court’s duty to presume that factual findings made by a trial court are correct. However, after review of the record in this case, I fear that the policy of this state, which is to encourage frequent and continual contact between a child and both of his or her parents after a divorce, is disintegrating under a mistaken belief that a relocating parent does not have a significant burden to overcome, especially in cases such as this where the nonrelocat-ing parent and the child have a strong bond.”

Knight v. Knight, 53 So.3d 942, 960 (Ala. Civ.App.2010) (Bryan, J., concurring in part and dissenting in part).

The father also requested a modification of custody based on the proposed relocation of the mother and the mother’s alleged inability to provide stability for the child. During the final hearing, the mother testified that if the trial court did not allow the child’s principal residence to be relocated, then she would remain in Mobile with the child. Because the mother testified that she would remain in Mobile with the child if her request to relocate the child was not granted, and because I find insufficient evidence in the record that would otherwise support the father’s request to modify custody of the child, I would affirm the trial court’s judgment denying the father’s request to modify custody of the child. Thus, for this reason, I concur to affirm the trial court’s judgment as to this issue.

Regarding the remaining arguments presented by the father on appeal — that the trial court erred in admitting certain evidence and that the trial court did not permit a thorough and sifting cross-examination on relevant issues — I concur to affirm the trial court’s judgment.


text:
    Angela Fay EGRES v. Michael Jon EGRES.
    2100616.
    Court of Civil Appeals of Alabama.
    Dec. 9, 2011.

      Jeffery A. Mobley of Lowe, Mobley, Lowe & LeDuke, Haleyville, for appellant.
    John A. Posey III, Haleyville, for appel-lee.
   BRYAN, Judge.

Angela Fay Egres (“the former wife”) appeals from a judgment entered by the Marion Circuit Court (“the trial court”) that modified the child-support obligation of Michael Jon Egres (“the former husband”) and failed to clarify certain provisions in the settlement agreement incorporated into the parties’ divorce judgment.

The record reveals that the parties were divorced by the trial court on or about April 22, 2009. The divorce judgment incorporated an agreement reached by the parties. Pursuant to the judgment incorporating that agreement, the parties were purportedly awarded joint legal and physical custody of their two children, but the former wife was designated as the primary custodian and the former husband was awarded visitation rights and was ordered to pay child support. For purposes of this appeal, the pertinent part of their agreement states as follows:

“4. The parties agree that the [former husband] shall pay to the [former wife] the sum of $300 per week to be deposited into the [former wife]’s specified account for the support and maintenance of the minor children. Said child support shall continue until the youngest minor child reaches the age of majority or/and until the property, mobile home, and land are paid in full. The parties understand that they are not in compli-anee with Rule 32, A[la]. R. J[ud]. A[dmin].
“5. The parties agree that the [former wife] shall have and maintain use of the marital property located [in] ... Bear Creek .... The parties agree that the [former wife] shall also have all contents of said marital home. The parties further agree that the [former wife] shall be responsible for the indebtedness owed thereon. The parties agree that the [former husband] shall continue to pay the amount of $300 per week until the property is paid in full. Said $300 per week should be deposited into the [former wife]’s bank account by the [former husband] each week. The amount of $300 per week, which will be paid by the [former husband] for child support and the house payment, shall continue to be paid after the children reach the age of majority, until the said property is paid in full. Upon payment in full of the indebtedness owed on said property, the [former husband] agrees to sign any and all documents necessary in order to convey title of the Double Wide trailer and the land located at the above address to the [former wife]. The parties agree that a portion of the child support agreed to be paid by the [former husband] shall be used for the payment on the marital residence.”

(Emphasis added.)

On August 31, 2010, the former husband filed a petition to modify his child-support obligation, alleging that a material change in circumstances had occurred since the date the parties’ divorce judgment had been entered. The former husband alleged that the former marital residence had caught on fire and had suffered a total loss, that the mortgage on the former marital residence had been paid in full -with insurance proceeds, and that the parties’ oldest child had reached the age of majority. The former wife filed a general answer denying the allegations in the former husband’s modification petition, and she filed a counterclaim seeking, among other relief not pertinent to this appeal, a clarification of the parties’ divorce judgment, an order requiring the former husband to continue paying $300 a week until the mortgage on her replacement home was paid in full, and an order requiring the former husband to contribute to the post-minority educational expenses of the parties’ younger child.

The trial court conducted an ore tenus proceeding on December 7, 2010. On December 10, 2010, the trial court entered an order that stated, in pertinent part: “That the child support obligation of $300.00 per week, said obligation being also for the mortgage payment, is due to be modified.” After finding that the former husband was voluntarily underemployed, the trial court set the former husband’s child-support obligation at $176 per week. The former husband was also order to pay 75% of the younger child’s postminority educational expenses.

On January 6, 2011, the former wife filed a motion pursuant to Rule 59, Ala. R. Civ. P., to alter, amend, or vacate the trial court’s judgment. After conducting a hearing, the trial court denied the former wife’s postjudgment motion, and the former wife timely appealed.

On appeal, the former wife argues (1) that the trial court erred in concluding that there had been a material change in circumstances sufficient to support a modification of the former husband’s child-support obligation; (2) that, even if the divorce judgment was ambiguous, the trial court should not have modified the former husband’s child-support obligation; and (3) that the trial court erred by failing to clarify the provisions of the settlement agreement that was incorporated into the parties’ divorce judgment.

Generally speaking, “matters 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.’ ” Morgan v. Morgan, 964 So.2d 24, 27 (Ala.Civ.App. 2007) (quoting Spears v. Spears, 903 So.2d 135, 136 (Ala.Civ.App.2004)). “Additionally, we point out that an agreement between parents fixing child support becomes merged into the divorce decree and thereby loses its contractual nature, at least to the extent that a court of equity has the power to modify the decree when changed conditions so justify.” Thompson v. Alexander, 579 So.2d 665, 666-67 (Ala. Civ.App.1991) (citing Ezell v. Ezell, 486 So.2d 446 (Ala.Civ.App.1986)).

“Although the ore tenus presumption applies to the trial court’s findings of fact, no such presumption adheres to the trial court’s application of the law to those facts. Ex parte Agee, 669 So.2d 102, 104 (Ala.1995). The [parties’] arguments are based upon the interpretation of certain provisions and terms in the parties’ ... agreement; such interpretations, like the interpretation of unambiguous contracts, are questions of law. See Agee, 669 So.2d at 105; Stacey v. Saunders, 437 So.2d 1230, 1233 (Ala. 1983).”

Laney v. Laney, 833 So.2d 644, 646 (Ala. Civ.App.2002).

On appeal, the former wife first argues that the former husband failed to demonstrate a material change in circumstances sufficient to support a modification of his child-support obligation. See Rule 32(A)(3)(b), Ala. R. Jud. Admin. (“A party seeking a modification of child support must plead and prove that there has occurred a material change in circumstances that is substantial and continuing since the last order of child support.”). She contends that, because the parties’ youngest child had not reached the age of majority and because the parties’ incomes had not materially changed since the time the divorce judgment was entered, there had not been a material change in circumstances sufficient to support a modification of the former husband’s child-support obligation. The former husband argues that the agreement incorporated into the divorce judgment obligated him to pay $300 a week to the former wife in child support only until the mortgage debt on the former marital residence was paid in full and that, because that debt had been paid in full, a material change in circumstances existed to support the trial court’s modification of his child-support obligation.

Both parties’ interpretation of the agreement could be correct depending on how the language “or/and” in paragraph 4 of the agreement is applied. Paragraph 4 of the settlement agreement, insofar as it uses the conjunction “or/and” when setting forth the terms of the former husband’s child-support obligation, contains a patent ambiguity, i.e., an ambiguity “that is apparent upon the face of the instrument, arising by reason of inconsistency or uncertainty in the language employed.” Meyer v. Meyer, 952 So.2d 384, 391 (Ala.Civ.App.2006). See also McCollum v. Atkins, 912 So.2d 1146, 1148 (Ala. Civ.App.2005) (quoting Jacoway v. Brittain, 360 So.2d 306, 308 (Ala.1978)) (“‘A patent ambiguity is not a true ambiguity; it is merely confusion created on the face of the [instrument] by the use of defective, obscure or insensible language.’ ”). It is well settled that extrinsic evidence, including parol evidence, may not be considered to resolve any doubt caused by a patent ambiguity that exists on the face of an instrument. McCollum, 912 So.2d at 1148. Moreover, the determination of the meaning of a patent ambiguity is a question of law; accordingly, this court will review the trial court’s determination of the meaning of the patent ambiguity de novo. Id.

‘“[A] settlement agreement which is incorporated into a divorce decree is in the nature of a contract.’ Smith v. Smith, 568 So.2d 838, 839 (Ala.Civ.App. 1990). A divorce judgment should be interpreted or construed as other written instruments are interpreted or construed. Sartin v. Sartin, 678 So.2d 1181 (Ala.Civ.App.1996). ‘The words of the agreement are to be given their ordinary meaning, and the intentions of the parties are to be derived from them.’ Id., at 1183. Whether an agreement is ambiguous is a question of law for the trial court. Wimpee v. Wimpee, 641 So.2d 287 (Ala.Civ.App.1994). An agreement that by its terms is plain and free from ambiguity must be enforced as written. Jones v. Jones, 722 So.2d 768 (Ala.Civ.App.1998). An ambiguity exists if the agreement is susceptible to more than one meaning. Vainrib v. Downey, 565 So.2d 647 (Ala.Civ.App. 1990). However, if only one reasonable meaning clearly emerges, then the agreement is unambiguous. Id. Finally, if a provision of an agreement is certain and clear, it is the duty of the trial court to determine its meaning, and the court’s determination is afforded a heavy presumption of correctness and will not be disturbed unless it is clearly erroneous. Id.”

R.G. v. G.G., 771 So.2d 490, 494 (Ala.Civ. App.2000).

After a review of the entire settlement agreement, without considering the extrinsic evidence presented during the ore tenus hearing, see Martin v. First Nat’l Bank of Mobile, 412 So.2d 250, 253 (Ala.1982) (the court may not look beyond the four corners of the instrument unless a latent ambiguity exists), we conclude that the patent ambiguity must be resolved as an “and” instead of an “or” in order to be consistent with the remainder of the parties’ settlement agreement, specifically the language set forth in paragraph 5 that is emphasized above. If we adopted the former husband’s interpretation of paragraph 4, by using only the conjunction “or,” the agreement could be interpreted as extinguishing the former husband’s obligation to pay the former wife $300 per week at the time that the younger child attained the age of majority, even if the mortgage debt on the former marital residence had not been paid in full at that time, despite the fact that paragraph 5 clearly indicates that the former husband’s obligation to pay the former wife $300 per week continued until the mortgage debt secured by the former marital residence was paid in full. Use of the conjunction “or” in paragraph 4 would also be inconsistent with the part of paragraph 5 that requires the former husband to continue to pay the former wife $300 per week “after the children reach the age of majority, until the [mortgage debt secured by the marital] property is paid in full.”

Therefore, we agree with the former wife that the parties’ agreement provided that the former husband’s obligation to pay the former wife $300 per week as child support continued until the parties’ younger child reached the age of majority and the former marital residence, i.e., the mobile home and the land upon which it was situated, was paid in full. Although the mortgage debt on the former marital residence had been paid in full, it was undisputed that the parties’ younger child had not attained the age of majority at the time of trial. Accordingly, because the parties’ younger child had not yet attained the age of majority, that part of the trial court’s judgment modifying the former husband’s child-support obligation is due to be reversed, and we remand the cause to the trial court for further proceedings consistent with this opinion.

Next, the former wife argues that, if this court finds that the parties’ agreement was ambiguous, we must construe the agreement in favor of the former wife, thus resulting in a reversal of the trial court’s judgment modifying the former husband’s child-support obligation. However, because we have reversed the trial court’s judgment modifying the former husband’s child-support obligation and because we have determined that the agreement, considered as a whole, is not ambiguous, we pretermit further discussion of this part of the former wife’s argument on appeal.

Finally, the former wife argues that the trial court erred by failing to “clarify” the divorce judgment “to provide for the spirit of the property settlement that the parties bargained for.” She contends that the former husband’s agreement to pay her $300 a week in child support, insofar as it was to extend beyond the date that their younger child reached the age of majority, was an award of alimony in gross and “suggests” that she could have expected to receive $300 a week until she owned a home and land free of any mortgage indebtedness.

“An alimony-in-gross award ‘must satisfy two requirements, (1) the time of payment and the amount must be certain, and (2) the right to alimony must be vested.’” Daniel v. Daniel, 841 So.2d 1246, 1250 (Ala.Civ.App.2002) (quoting Cheek v. Cheek, 500 So.2d 17, 18 (Ala.Civ.App. 1986)). We cannot conclude that the parties’ agreement awarded the former wife a vested right to a certain amount of alimony. The agreement obligated the former husband to continue paying the former wife $300 a week after the parties’ younger child attained the age of majority only in the event that the mortgage debt secured by the former marital residence was not paid in full by the time the parties’ younger child attained the age of majority. Thus, if the mortgage debt on the former marital residence has been paid in full before the parties’ younger child attains the age of majority, the former wife will have no continuing right to receive weekly payment of $300 after the parties’ younger child attains the age of majority.

Regarding the former wife’s contention that the intent of the agreement was to award her a home and land with no mortgage indebtedness, we note that the intent of the parties must be derived by giving “ ‘[t]he words of the [parties’] agreement ... their ordinary meaning.’ ” R.G. v. G.G., 771 So.2d at 494 (quoting Sartin v. Sartin, 678 So.2d 1181, 1183 (Ala.Civ.App. 1996)). Moreover, although a trial court has authority to clarify the terms of an ambiguous divorce judgment, the trial court cannot use that power to modify property-division provisions in a divorce judgment, which become final after 30 days. Mullins v. Mullins, 770 So.2d 624, 625-26 (Ala.Civ.App.2000). The plain language of the parties’ agreement clearly awards the former wife the “marital property,” i.e., the former martial residence, and delegates responsibility for the debt owed thereon to the former wife. The former husband’s obligation to contribute to the payment of the debt secured by that property was to continue until “the property [wa]s paid in full.” It was undisputed that the debt secured by the former marital residence was paid in full at the time of trial. There is nothing ambiguous about the parties’ agreement insofar as it required the former husband to contribute only to the debt secured by the former marital residence. Therefore, the trial court had no authority to “clarify” the judgment in the manner requested by the former wife. Accordingly, we cannot conclude that the trial court erred by failing to hold that the former husband had an obligation to contribute to a mortgage debt that was not secured by the former marital residence. Thus, the trial court’s judgment in this regard is affirmed.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

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

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

      . The record revealed that the former husband's income was approximately $4,000 a month at the time the parties divorced. At the time he filed his petition to modify, the CS-41 Child-Support-Obligation Income Statement/Affidavit filed by the former husband stated that his monthly income was $4,166, an increase of $166 a month. The record also revealed that, since the time of the divorce, the former wife’s income had increased from $1,179 a month to $1,344 a month, an increase of $165 a month.


author: PER CURIAM.

text:
    Ex parte AFFINITY HOSPITAL, LLC, d/b/a Trinity Medical Center of Birmingham. (In re: Brookwood Health Services, Inc., d/b/a Brookwood Medical Center v. Affinity Hospital, LLC, d/b/a Trinity Medical Center of Birmingham et al. and In re: St. Vincent’s Health System v. Affinity Hospital, LLC, d/b/a Trinity Medical Center of Birmingham et al.). Affinity Hospital, LLC, d/b/a Trinity Medical Center of Birmingham v. Brookwood Health Services, Inc., d/b/a Brookwood Medical Center, and St. Vincent’s Health System.
    2100614 and 2100630.
    Court of Civil Appeals of Alabama.
    Dec. 9, 2011.

      David R. Boyd, Colin H. Luke, Carey B. McRae, and Ed R. Haden of Balch & Bingham LLP, Birmingham; and Robert D. Segall of Copeland, Franco, Screws & Gill, P.A., Montgomery, for petitioner/appellant Affinity Hospital, LLC, d/b/a Trinity Medical Center of Birmingham.
    James E. Williams, J. Flynn Mozingo, and C. Mark Bain of Melton, Espy & Williams, PC, Montgomery, for respondent/appellee Brookwood Health Services, Inc., d/b/a Brookwood Medical Center.
    David M. Hunt, Mitchel H. Boles, and Joseph W. Carlisle of Johnston, Barton, Proctor & Rose LLP, Birmingham, for respondent/appellee St. Vincent’s Health System.
   PER CURIAM.

This case concerns whether the Montgomery Circuit Court, sitting in its appellate capacity, had the authority to remand a case to an agency for further evidentiary proceedings. We conclude that the circuit court lacked such authority, and we issue a writ of mandamus directing the circuit court to vacate its remand order.

Factual Background and Procedural History

Affinity Hospital, LLC, d/b/a Trinity Medical Center of Birmingham (“Trinity”), owns and operates a hospital located on Montclair Road in Birmingham (“the Montclair campus”). In November 2006, Trinity applied to the State Health Planning and Development Agency (“SHPDA”) for a certificate of need (“CON”) to relocate its hospital from the Montclair campus to a nearby location in the City of Irondale. See § 22-21-265, Ala.Code 1975 (requiring a CON for new institutional health-service facilities). Brookwood Health Services, Inc., d/b/a Brookwood Medical Center (“Brookwood”), intervened in opposition to Trinity’s CON application, and a contested-case hearing was held. Brookwood owns and operates a hospital located in the City of Homewood, in the Birmingham area. In June 2008, SHPDA’s Certificate of Need Review Board (“the CONRB”) issued Trinity a CON (“the Irondale CON”) permitting it to move its hospital from the Montclair campus to Irondale.

Trinity, however, did not relocate its hospital to Irondale. In September 2008, Trinity filed a letter of intent with SHPDA indicating its intention to move its hospital from the Montclair campus into a vacant digital-hospital facility located on Highway 280 in Birmingham (“the Highway 280 site”). In December 2008, Trinity applied for a CON to relocate to the Highway 280 site, and Trinity voluntarily surrendered the Irondale CON. Brookwood and St. Vincent’s Health System (“St. Vincent’s”) intervened in opposition to Trinity’s new CON application and requested a contested-case hearing. St. Vincent’s owns and operates a hospital located in Birmingham.

SHPDA appointed an administrative law judge (“the ALJ”) to hear the contested-case hearing. Disputes arose among the parties concerning discovery, and Brook-wood and St. Vincent’s filed motions with the ALJ seeking to compel Trinity to produce certain information. In an order addressing various discovery motions, the ALJ ruled that evidence relating to “the timing of, and reasons for, [Trinity’s] decision(s) to surrender [the Irondale CON] and to pursue the present [CON for the Highway 280 site] appear to be discoverable....” After extensive discovery was conducted, the ALJ held a contested-case hearing over several days between September 2009 and November 2009. At that hearing, evidence was submitted indicating that Trinity was exploring the possibility of moving to the Highway 280 site even as Trinity sought the Irondale CON. That evidence, however, did not prevent the ALJ from recommending, in August 2010, that Trinity be granted a CON to move its hospital to the Highway 280 site. In September 2010, the CONRB voted to adopt the ALJ’s recommendation, and the CONRB issued Trinity a CON to relocate its hospital to the Highway 280 site.

After Trinity had abandoned its plan to move to Irondale, Irondale sued Trinity. In October 2010, shortly after Trinity had obtained a CON to move to the Highway 280 site, St. Vincent’s obtained a copy of certain deposition testimony taken in Iron-dale’s action against Trinity. That deposition testimony referenced certain documents regarding Trinity’s decision to seek relocation to the Highway 280 site instead of relocating to the Irondale site. Those documents referenced in the deposition testimony were not produced by Trinity during discovery in the contested case before the ALJ in the present case. On October 15, 2010, St. Vincent’s and Brook-wood filed applications for reconsideration asking the CONRB to reconsider the issuance of the CON that it had issued to Trinity the previous month. In their applications, St. Vincent’s and Brookwood asserted, among other things, that Trinity had violated the ALJ’s discovery order by not producing some documents concerning Trinity’s decision to seek a move to the Highway 280 site instead of the Irondale site.

On the night of October 17, 2010, Trinity produced to St. Vincent’s and Brookwood 16 documents (“the 16 documents”) regarding Trinity’s decision to seek a move to the Highway 280 site instead of moving to Irondale. The 16 documents indicate that Trinity was considering a potential move to the Highway 280 site during the period that Trinity was seeking the Iron-dale CON. On October 20, 2010, three days after the 16 documents were produced, the CONRB held a hearing to consider the applications for reconsideration filed by Brookwood and St. Vincent’s. At the hearing, the 16 documents were before the CONRB. St. Vincent’s and Brookwood argued that a new hearing should be held before the ALJ based on the recent discovery of the 16 documents. Trinity, however, argued that the 16 documents were merely cumulative to the evidence that had been presented to the ALJ and that the ALJ should not hold another hearing. The CONRB denied the applications for reconsideration.

Brookwood and St. Vincent’s appealed to the circuit court, pursuant to § 41-22-20, Ala.Code 1975, a part of the Alabama Administrative Procedure Act (“the AAPA”), § 41-22-1 et seq., Aa.Code 1975. Before the circuit court, Brookwood also alleged these new “claims”: (1) a claim seeking a judgment declaring the CON to be invalid; (2) a claim alleging a violation of § 41-22-20(i), Ala.Code 1975, a part of the AAPA; and (B) a claim alleging a violation of § 22-21-265.2, Ala.Code 1975, a statute reiterating the legislature’s intent not “to forgive, ratify, or confirm ... presentation of information known to be false” by applicants for CONs. Trinity filed a motion to dismiss the three new claims or, alternatively, a motion for a judgment on the pleadings with respect to the three new claims; the circuit court did not rule on that motion. Brookwood and St. Vincent’s filed motions seeking to have the case remanded to SHPDA on the basis that the 16 documents were new evidence that required additional evidentiary proceedings before the ALJ.

On March 17, 2011, the circuit court entered an order remanding the case to SHPDA with instructions that SHPDA reassign the case to the ALJ. The circuit court determined that Trinity had failed to comply with the ALJ’s discovery order by not producing the 16 documents during the proceedings before the ALJ. The circuit court also found that “[t]he [16] Documents and additional evidence related thereto are material to the issues in this case, and Brookwood and St. Vincent’s were not able to present this additional evidence in the previous proceedings.” In remanding the case to SHPDA, the circuit court relied on § 41 — 22—20(i) and (k), Ala. Code 1975, provisions of the AAPA that will be discussed below. The circuit court further ordered:

“Brookwood and St. Vincent’s are allowed to conduct additional discovery regarding the [16] Documents and all matters stated or naturally flowing from the [16] Documents....
“At the reconvened Contested Case Hearing, Trinity must make available for cross-examination those individuals who were involved in drafting, in receiving, or in reviewing the [16] Documents or have any knowledge of the matters addressed therein. All parties shall be permitted to call additional witnesses as they may choose to offer testimony regarding the [16] Documents and the matters discussed therein, as well as additional documents obtained by Brookwood and St. Vincent’s during discovery and the matters addressed therein.
“[The] ALJ ... shall preside over the reconvened hearing and accept the testimony and additional evidence into the evidentiary record; and
“... Upon completion of the reconvened hearing, [the] ALJ ... shall issue another Recommended Order in light of the additional evidence presented, then return it to the CON[RB] for consideration de novo with all additional evidence included.”

The circuit court also concluded that, because the case was due to be remanded to SHPDA, the three new claims alleged by Brookwood before the circuit court were not ripe for consideration. Because the proper vehicle for challenging the circuit court’s order was unclear, Trinity filed both a notice of appeal and a petition for a writ of mandamus to this court. This court consolidated the appeal and the mandamus petition, and we heard oral arguments on October 6, 2011.

Discussion

The Appeal — Case Number 21006S0

Initially, we must determine the proper vehicle available to Trinity for chai-lenging the circuit court’s order remanding the case to SHPDA. To determine whether Trinity had a right to appeal the circuit court’s order, we must determine whether the order is a final judgment. “Ordinarily, only a final judgment will support an appeal. ... An order that does not dispose of all claims or determine the rights and liabilities of all the parties to an action is generally not final.” Stone v. Haley, 812 So.2d 1245, 1246 (Ala.Civ.App.2001). The circuit court’s order is not a final judgment because it did not resolve the three claims that Brookwood filed in the circuit court. The order specifically noted that, because the case was being remanding to SHPDA, the three new claims alleged by Brook-wood were not ripe for consideration. Because the circuit court’s order is not a final judgment, it will not support an appeal. Thus, we dismiss Trinity’s appeal in case number 2100630.

The Petition for a Writ of Mandamus— Case Number 21006H

In addition to filing a notice of appeal, Trinity also challenged the circuit court’s order by filing a petition for a writ of mandamus with this court.

“A writ of mandamus is an extraordinary remedy, and it will be ‘issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.’ Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993).”

Ex parte Empire Fire & Marine Ins. Co., 720 So.2d 893, 894 (Ala.1998). Section 12-3-10, Ala.Code 1975, permits this court jurisdiction over extraordinary writs arising from administrative-law cases over which this court has appellate jurisdiction, such as the present case. See State Health Planning & Dev. Agency of Alabama v. Baptist Med. Ctr., 446 So.2d 619, 621-22 (Ala.Civ.App.1983).

First, Trinity seeks a writ of mandamus directing the circuit court to dismiss Brookwood’s three new claims filed in the circuit court. On February 22, 2011, Trinity filed in the circuit court a motion to dismiss those three new claims or, alternatively, a motion for a judgment on the pleadings with respect to those claims. However, the circuit court never ruled on that motion. On February 23, 2011, the day after Trinity filed its motion, the circuit court held a hearing to determine whether to remand the case to SHPDA in light of the discovery and production of the 16 documents. At that hearing, the circuit court stated that it would not consider Trinity’s motion regarding Brookwood’s three claims at that time, seeking instead to resolve the remand issue first. In its remand order of March 17, 2011, the circuit court indicated that it would not address Brookwood’s claims at that time. Because the circuit court has not yet considered Trinity’s motion regarding Brook-wood’s three claims, we decline to issue a writ of mandamus ordering the circuit court to dismiss those claims. See Ex parte Wilson, 70 So.3d 335 (Ala.Civ.App. 2009) (declining to grant mandamus relief when there was no indication that a hearing officer had refused to perform an imperative duty). We make no determination at this time regarding the validity of Brookwood’s claims. We anticipate that the circuit court will promptly consider Trinity’s motion concerning those claims following the issuance of this opinion.

We now address the heart of the dispute in this case: whether the court circuit had the authority under the AAPA to remand the case to SHPDA for additional eviden-tiary proceedings before the ALJ. In remanding the case, the circuit court purported to rely on two provisions of the AAPA, § 41-22-20(i) and (k), Ala.Code 1975. We first address § 41-22-20®. That section provides, in its entirety:

“In proceedings for judicial review of agency action in a contested case, except where appeal or judicial review is by a trial de novo, a reviewing court shall not itself hear or accept any further evidence with respect to those issues of fact whose determination was entrusted by law to the agency in that contested case proceeding; provided, however, that evidence may be introduced in the reviewing court as to fraud or misconduct of some person engaged in the administration of the agency or procedural irregularities before the agency not shown in the record and the affecting order, ruling, or award from which review is sought, and proof thereon may be taken in the reviewing court. If, before the date set for hearing a petition for judicial review of agency action in a contested case, it is shown to the satisfaction of the court that additional evidence is material and that there were good reasons for failure to present it in the contested case proceeding before the agency, the court may remand to the agency and order that the additional evidence be taken before the agency upon conditions determined by the court. The agency may modify its findings and decision in the case by reason of the additional evidence and shall file that evidence and any modification, new findings, or decision with the reviewing court and mail copies of the new findings, or decision to all parties.”

(Emphasis added.)

Section 41-22-20(i) contemplates a remand order that is interlocutory in nature. See, e.g., Howell v. Harden, 231 Ga. 594, 203 S.E.2d 206 (1974) (stating that a remand under a provision similar to § 41-22-20® is interlocutory). A petition for a writ of mandamus is a proper method for seeking review of an interlocutory order. L.A.C. v. T.S.C., 8 So.3d 322, 323 n. 1 (Ala.Civ.App.2008).

Trinity argues that the circuit court lacked the authority to remand the case for the taking of “additional evidence” under § 41-22-20® because, Trinity says, the 16 documents are not “additional evidence” under that provision. Trinity contends that the 16 documents are not additional evidence under § 41-22-20® because those documents were presented to the CONRB when it considered the applications for reconsideration filed by Brookwood and St. Vincent’s. Conversely, Brookwood and St. Vincent’s argue that this court’s opinion in Alabama Department of Mental Health & Mental Retardation v. Kirby, 579 So.2d 675 (Ala. Civ.App.1991), indicates that the 16 documents are additional evidence under § 41-22-20(i).

In Kirby, the Alabama Department of Mental Health and Mental Retardation (“the Department”) terminated the employment of one of its employees. 579 So.2d at 676. The employee appealed the dismissal to the State Personnel Board (“the Board”), which reinstated the employee based in part on the absence of evidence indicating previous disciplinary action taken against the employee. Id. The Department filed an application for rehearing with the Board, and the Department submitted at that time the employee’s personnel record as “new evidence.” Id. at 677. The employee’s personnel record indicated that he had been disciplined on several occasions. The Board denied the application for rehearing, and the Department appealed to the circuit court. The circuit court affirmed the Board’s de-cisión to reinstate the employee, and the Department appealed to this court. Id.

Before this court, the Department attempted to rely on the evidence in the employee’s personnel record. 579 So.2d at 678. However, this court concluded that the personnel record, which was first presented to the Board in support of the application for rehearing, was never properly before the Board. This court stated:

“[T]he circuit court may hear and consider only such evidence as was presented to the Board in its contested case proceeding. § 41 — 22—20(i), Code 1975. Here, it appears that the personnel record was not presented to the Board during the contested case proceeding; rather, the Department presented the record as ‘new evidence’ on motion for rehearing pursuant to § 41-22-17, Code 1975.
“According to § 41-22-17, application for rehearing will apply where the Board’s decision is ‘clearly erroneous in view of the reliable, probative and substantial evidence on the whole record.’ The statute does not empower the Board, on motion for reconsideration, to admit new evidence into the ‘whole record.’ However, the circuit court may order the Board to consider such evidence upon the order of the circuit court[, pursuant to § 41-22-20® ].”

Kirby, 579 So.2d at 678.

Section 41-22-17, Ala.Code 1975, the rehearing provision of the AAPA referenced in Kirby, provides, in pertinent part:

“(c) Such application for rehearing will lie only if the final order is:
“(1) In violation of constitutional or statutory provisions;
“(2) In excess of the statutory authority of the agency;
“(3) In violation of an agency rule;
“(4) Made upon unlawful procedure;
“(5) Affected by other error of law;
“(6) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
“(7) Unreasonable, arbitrary or capricious or characterized by an abuse of discretion or a clearly unwarranted exercise of discretion.”

Brookwood and St. Vincent’s argue that Kirby indicates that the CONRB could not have considered the 16 documents submitted to it when considering the applications for reconsideration. Therefore, Brook-wood and St. Vincent’s argue that, for the CONRB to properly consider the 16 documents, the circuit court had to remand the case to SHPDA under § 41-22-20®, which it did in this case.

However, we agree with Trinity that Kirby does not control this case. Unlike the situation in Kirby, in this case SHPDA has adopted a rule, Rule 410-1-8-.09, Ala. Admin. Code (SHPDA), providing for the consideration of newly discovered evidence on an application for reconsideration. Subsection (2)(a) of Rule 410-1-8-.09 mirrors the grounds listed in § 41-22-17(c), quoted above, for granting an application for rehearing. However, subsection (2)(b) of that rule provides an additional ground for granting reconsideration not provided in the statute:

“(2) [An] application for reconsideration will lie only
“(b) if the party requesting reconsideration presents any significant relevant and material newly discovered information not previously considered by SHPDA which, with reasonable diligence, could not have been discovered in time to be presented before SHPDA made its decision.”

Thus, Rule 410-l-8-.09(2)(b) grants the CONRB the authority to consider whether the 16 documents, which it had not previously considered, are “significant relevant and material” evidence sufficient to grant an application for reconsideration. We now consider whether Rule 410 — 1—8—-09(2)(b), by providing an additional ground for reconsideration not found in § 41-22-17(c), conflicts with that statutory provision.

“The provisions of a statute will prevail in any case of a conflict between a statute and an agency regulation. Ex parte State Dep’t of Human Resources, 548 So.2d 176 (Ala.1988). An administrative regulation must be consistent with the statutes under which its promulgation is authorized. Ex parte City of Florence, 417 So.2d 191 (Ala.1982). An administrative agency cannot usurp legislative powers or contravene a statute. Alabama State Milk Control Bd. v. Graham, 250 Ala. 49, 38 So.2d 11 (1947). A regulation cannot subvert or enlarge upon statutory policy. Jefferson County Bd. of Ed. v. Alabama Bd. of Cosmetology, 380 So.2d 913 (Ala.Civ.App.1980).”

Ex parte Jones Mfg. Co., 589 So.2d 208, 210 (Ala.1991).

SHPDA adopted Rule 410-1-8-.09 pursuant to § 22-21-275(12), Ala.Code 1975, which specifically addresses requests for reconsideration of SHPDA decisions. Section 22-21-275(12) provides, in pertinent part, that “SHPDA ... shall prescribe by rules and regulations the procedures for review of applications for [CONs] ... including], but not necessarily ... limited to ... [provision for a public hearing upon written request for the reconsideration of a decision by ... SHPDA .... ” Thus, § 22-21-275(12) grants SHPDA express authority to adopt rules concerning the procedures associated with requests for reconsideration.

Of course, the AAPA provides the general procedural framework in CON cases like the present one. See, e.g., Noland Health Servs. v. State Health Planning & Dev. Agency, 44 So.3d 1074 (Ala.2010). Significantly, the AAPA contemplates that agencies will adopt additional procedures in addition to those provided by the AAPA. Section 41-22-25(a), Ala.Code 1975, a part of the AAPA, provides, in pertinent part:

“Except as expressly provided otherwise by [the AAPA] or by another statute referring to [the AAPA] by name, the rights created and the requirements imposed by [the AAPA] shall be in addition to those created or imposed by every other statute in existence on the date of the passage of [the AAPA] or thereafter enacted.”

However, in the absence of express provisions stating otherwise, additional rights and requirements created by other statutes cannot diminish the rights or requirements established by the AAPA. Section 41-22-25(a) continues:

“If any other statute in existence on the date of the passage of [the AAPA] or thereafter enacted diminishes any right conferred upon a person by [the AAPA] or diminishes any requirement imposed upon an agency by [the AAPA], [the AAPA] shall take precedence unless the other statute expressly provides that it shall take precedence over all or some specified portion of [the AAPA].”

According to the Commentary to § 41-22-25, that section “must be read together with section 41-22-2.” Section 41-22-2 provides, in pertinent part: “(a) [The AAPA] is intended to provide a minimum procedural code for the operation of all state agencies when they take action affecting the rights and duties of the public. Nothing in this chapter is meant to discourage agencies from adopting procedures conferring additional rights upon the public .... ”

“ ‘Statutes should be construed together so as to harmonize the provisions as far as practical.’ ” Industrial Dev. Bd. of City of Montgomery v. Russell, [Ms. 1091215, August 12, 2011]-So.3d-, - (Ala.2011) (quoting Ex parte Jones Mfg. Co., 589 So.2d at 211). The AAPA generally does not prohibit agencies from establishing additional procedural rights unless they diminish the rights and requirements established by the AAPA. Further, § 22-21-275(12) specifically grants SHPDA the authority to adopt procedural rules regarding applications for reconsideration. Thus, by reading the applicable statutory provisions together, we conclude the legislature has given SHPDA the authority to adopt rules conferring additional procedural rights on the public so long as those rights do not diminish rights or requirements established by the AAPA. SHPDA’s Rule 410-l-8-.09(2)(b) confers the additional procedural right allowing for the CONRB to consider, upon an application for reconsideration, “newly discovered information” that meets certain criteria. We find no conflict between that rule and the AAPA’s rehearing provision, § 41-22-17. Further, our holding in Kirby does not conflict with Rule 410-l-8-.09(2)(b). Thus, the CONRB was free to consider the 16 documents upon the applications for reconsideration filed by Brookwood and St. Vincent’s.

Having concluded that the 16 documents were properly before the CONRB upon the applications for reconsideration, we conclude that those documents are not “additional evidence” under § 41—22—20(i). As noted, that section provides that the circuit court may remand a case to an agency for the taking of material additional evidence if there were good reasons for the failure to present the evidence to the agency in the contested-case proceedings. However, because the CONRB properly had the 16 documents before it upon the applications for reconsideration, the 16 documents are not additional evidence, and the circuit court could not properly rely on § 41-22-20(i) to remand the case to SHPDA. Accordingly, the circuit court erred insofar as it relied on § 41-22-20© to remand the case to SHPDA.

In addition to § 41-22-20®, the circuit court also purported to rely on § 41-22-20(k) in remanding the case to SHPDA. Section 41-22-20(k), in discussing the various options available to a court reviewing agency decisions, provides that “the court may ... remand the case to the agency for taking additional testimony and evidence or for further proceedings.” We conclude that, with respect to the “taking [of] additional testimony and evidence” by an agency, the “remand” referenced in § 41-22-20&) refers to the procedure outlined in § 41-22-20®, discussed above. If we were to read § 41-22-20(k) as giving the circuit court a broad, general power to remand a case to an agency for the taking of additional evidence, such a reading would render meaningless the requirements found in the more specific remand provision of § 41-22-20®. Section 41-22-20(i) governs remands from a circuit court to an agency for the presentation of additional evidence, and § 41-22-20(k) conveys no additional remand authority with respect to the presentation of further evidence. Thus, because the circuit court did not have the authority to remand under § 41-22-20®, the circuit court erred in remanding the case.

Accordingly, we conclude that Trinity is entitled to a writ of mandamus vacating the circuit court’s remand order. We recognize that, absent a writ of mandamus, Trinity would ultimately be able to appeal the circuit court’s remand decision following the eventual resolution of all matters in this case. However, Trinity should not be subjected to additional evidentiary proceedings before SHPDA when the law prohibits such proceedings, as we have determined today. An appeal following such proceedings, which could conceivably alter an agency’s decision, may not provide adequate relief. Cf. Ex parte Rush, 419 So.2d 1388 (Ala.1982) (stating that mandamus is proper to enforce a statutory or constitutional right to a jury trial).

Conclusion

The circuit court lacked the authority to remand the case to SHPDA for additional evidentiary proceedings. Because the circuit court’s remand order is an interlocutory order that will not support an appeal, we dismiss Trinity’s appeal from that order. We grant Trinity’s petition for a writ of mandamus and issue the writ directing the circuit court to vacate its order of March 17, 2011, remanding the case to SHPDA. Finding no indication of undue delay by the circuit court, we decline Trinity’s request to impose time limits on future proceedings before the circuit court.

2100614 — PETITION GRANTED; WRIT ISSUED.

2100630 — APPEAL DISMISSED.

BRYAN, THOMAS, and MOORE, JJ„ concur.

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

      . In Irondale’s action against Trinity, Trinity was represented by different attorneys from the attorneys representing it in the present case.

      . Section 41-22-17 uses the term "rehearing” while Rule 410-1-8-.09 uses the term "reconsideration.” In this opinion, we treat those two terms as being synonymous.

      . In order for the CONRB to ultimately change its decision regarding the issuance of a CON due to newly discovered evidence under subsection (2)(b) of Rule 410-1-8-.09, the CONRB would have to rely on one of the factors listed in subsection 2(a), which are the same as those listed in § 41-22-17(c). Thus, subsection (2)(b) of the rule should be read in conjunction with subsection (2)(a) and § 41-22-17(c). In essence, subsection 2(b) merely gives the CONRB an opportunity to evaluate whether its decision should ultimately be changed pursuant to one of the reasons listed in subsection 2(a) and § 41-22-17(c) in light of newly discovered evidence. By denying the applications for reconsideration in this case, the CONRB implicitly determined that the 16 documents were not "significant relevant and material” information that would change its decision to grant Trinity the CON.

      . We note that, in some situations, § 41-22-20(k) may be relied on by a reviewing court to remand a case to an agency to address matters that do not concern the taking of additional evidence. See, e.g., Alabama Dep't of Youth Servs. v. State Pers. Bd.., 7 So.3d 380 (Ala.Civ.App.2008) (indicating that a case may be remanded to agency to explain ambiguities on the face of the agency’s decision).


author: PITTMAN, Judge.

text:
    Chrysanthenia H. DUDLEY v. Sheldon DUDLEY.
    2100377.
    Court of Civil Appeals of Alabama.
    Dec. 9, 2011.

      Monica Austin-Hatcher of Hatcher Law Office, Birmingham, for appellant.
    Heather M. Bussey, Birmingham, for appellee.
   PITTMAN, Judge.

Chrysanthenia Dudley (“the former wife”) appeals from the denial of her motion to alter, amend, or vacate the judgment divorcing her from Sheldon Dudley (“the former husband”) or, in the alternative, for a new trial. We affirm the judgment in part; vacate the judgment in part; and remand.

On March 10, 2009, the former wife filed a complaint for a divorce in the Jefferson Circuit Court, alleging, among other things, that she had owned certain real property before the marriage — a commercial building located on Avenue F in Birmingham that was apparently the site of a consignment shop — and requesting that the property be awarded to her in the divorce judgment. On December 16, 2009, the former wife filed a petition for relief under Chapter 13 of the United States Bankruptcy Code in the United States Bankruptcy Court for the Northern District of Alabama, listing the Avenue F property as an asset.

On October 14, 2010, the trial court entered a judgment divorcing the parties and ordering, among other things, that the Avenue F property be sold and the proceeds divided equally between the parties. The court also awarded the former husband $8,200 — a sum that, the trial court found, “represents one-half of the value of the inventory [of the consignment shop,] which was sold or given away.”

The former wife filed a timely post-judgment motion, asserting that before the divorce trial the parties had appeared in chambers, had informed the trial court that the former wife had filed a bankruptcy petition, and had been instructed by the trial court

“to present testimony, but the only issues to be disposed of would be those not involving property as all parties were in agreement that [the trial court] lacked the jurisdiction to make a property settlement due to the [automatic stay issued in the former wife’s] bankruptcy [proceeding].”

Citing Hunter v. Hunter, 706 So.2d 753 (Ala.Civ.App.1997), and arguing that the trial court had violated the automatic stay by dividing the parties’ property, the former wife moved the trial court to vacate the property-division portion of the divorce judgment. In the alternative, the former wife moved for a new trial, arguing that, based on her belief that the trial court would not rule on the property-division issues, she had failed to present evidence to rebut the former husband’s testimony regarding the “value of the property [in the consignment shop that the former husband] claimed he was entitled to.” In support of her motion, the former wife submitted the affidavits of two individuals who stated that they were regular customers of the consignment shop, that they had never seen certain types of merchandise for sale in the shop, and that the value of the items offered for sale in the shop was “nominal, as the store is located in a very low income area.”

Following a hearing on the former wife’s postjudgment motion, the trial court, on December 10, 2010, entered an order stating:

“THIS CAUSE came before the Court on the Motion to Alter, Amend or Vacate Judgment or in the alternative, Motion for New Trial on December 3, 2010. It is noted that the Court was informed in open court that the [former wife’s] purported bankruptcy petition was dismissed by the U.S. Bankruptcy Court. Upon consideration thereof, the Court is of the opinion that the following Order should be entered. Accordingly, it is ORDERED, ADJUDGED AND DECREED:
“1. That the Motion to Alter, Amend or Vacate or in the Alternative, Motion for New Trial is denied.
“2. That all provisions of the final judgment of divorce shall remain in full force and effect.
“3. Any other relief requested is denied.”

(Emphasis added.) On appeal, the former wife raises three issues.

I.

The former wife first contends that the trial court erred in making a division of the parties’ property in violation of the automatic-stay provisions of 11 U.S.C. § 362(a). The former wife is correct. Section 862(a) provides that, with exceptions not applicable here, the filing of a bankruptcy petition

“operates as a stay, applicable to all entities, of
“(1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title;
“(3) any act to obtain possession of property of the [bankruptcy] estate or of property from the estate or to exercise control over property of the estate.”

In Hunter, supra, this court held:

“ ‘[T]he filing of a bankruptcy petition stays the determination in a divorce case of the interests of the debtor in property of the estate, any exercise of control over such property, and any monetary claims against a debtor other than for alimony, maintenance and support. Other aspects of a divorce case, such as the dissolution of the marriage ... are not stayed.’
“Frankel v. Frankel, 274 N.J.Super. 585, 591, 644 A.2d 1132, 1135 (App.Div.1994) (emphasis added; quoting In re Becker, 136 B.R. 113, 116 (Bankr.D.N.J.1992))
“ ‘[I]t is within the exclusive province of the bankruptcy court to adjudicate the rights of creditors as against property of the debtor and property of the estate. To the extent that the state matrimonial court adjudicates an equitable distribution in favor of the non-debtor spouse, such award becomes a claim within the context of 11 U.S.C. § 101(9). The non-debtor spouse’s claim is an entitlement against the debtor’s estate, and thus [the non-debtor spouse] becomes one of the general unsecured creditors of the estate.’
“[In re Palmer;] 78 B.R. [402,] 406 [ (Bankr.E.D.N.Y.1987) ].”

Hunter, 706 So.2d at 754.

The former husband argues that any issue concerning the trial court’s authority to divide the parties’ property is moot because the former wife’s bankruptcy petition was dismissed after the entry of the divorce judgment and before the entry of the trial court’s December 10, 2010, order denying the former wife’s postjudgment motion. We disagree.

“Violations of the automatic stay are void for all purposes. Their ineffectiveness is permanent, not temporary.” 40235 Washington St. Corp. v. Lusardi, 177 F.Supp.2d 1090, 1104 (S.D.Cal.2001). Accord LaBarge v. Vierkant (In re Vierkant), 240 B.R. 317, 325 (B.A.P. 8th Cir. 1999) (holding that “an action taken in violation of the automatic stay is void ab initio”); Village Nurseries v. Gould (In re Baldwin Builders), 232 B.R. 406, 410 (B.A.P. 9th Cir. 1999); Soares v. Brockton Credit Union (In re Soares), 107 F.3d 969, 976 (1st Cir.1997); Franklin Sav. Ass’n v. Office of Thrift Supervision, 31 F.3d 1020, 1022 (10th Cir.1994); In re Siciliano, 13 F.3d 748, 751 (3d Cir.1994); FDIC v. Hirsch (In re Colonial Realty Co.), 980 F.2d 125, 137 (2d Cir.1992); and Albany Partners, Ltd. v. Westbrook (In re Albany Partners, Ltd.), 749 F.2d 670, 675 (11th Cir.1984).

The dismissal of a bankruptcy case does not validate actions taken in violation of the stay. Richard v. City of Chicago, 80 B.R. 451, 454 (N.D.Ill.1987). “The violations [of the automatic stay] remain ineffective even if the underlying bankruptcy case is dismissed.” 10235 Washington St. Corp., 177 F.Supp.2d at 1104. See also Maritime Elec. Co. v. United Jersey Bank, 959 F.2d 1194, 1207 (3d Cir.1991); In re Prine, 222 B.R. 610, 613 (Bankr.N.D.Iowa 1997); In re Ullrich, 186 B.R. 747, 749 (Bankr.M.D.Fla.1995); and In re Lampkin, 116 B.R. 450, 453 (Bankr.D.Md.1990).

Pursuant to 11 U.S.C. § 362(d), bankruptcy courts have the discretion to “lift the automatic stay retroactively and thereby validate actions which otherwise would be void.” Soares, 107 F.3d at 976.

“[W]hen a [bankruptcy] court annuls the stay, it validates actions taken in violation of the stay. [3 Collier on Bankruptcy ¶ 362.07[1] at 362-104 (16th ed.2010) ]. Annulment of the automatic stay ‘operate[s] retroactively to the date of the filing of the petition ... and thus validated] actions taken [in violation of the stay].... ’ In re Albany Partners, Ltd., 749 F.2d 670, 675 (11th Cir.1984).”

In re Taub, 438 B.R. 39, 50 (Bankr. E.D.N.Y.2010). When a nonbankruptcy court, however, issues an order in violation of the stay, that order is invalid, absent the bankruptcy court’s retroactive approval of the order. Soares, 107 F.3d at 976. A state court’s action in a divorce proceeding taken in violation of the stay can be annulled and retroactively cured only by the bankruptcy court. Lori v. Lori (In re Lori), 241 B.R. 353 (Bankr.M.D.Pa.1999).

In the present case, the trial court did not vacate the property-division provision of the divorce judgment and enter a new judgment; instead, it ruled that “all provisions of the final judgment of divorce shall remain in full force and effect.” (Emphasis added.) Based on the foregoing’ authorities, it is clear that the property-division provision of the divorce judgment had no “force and effect,” either at the time it was entered or later when the former wife’s bankruptcy petition was dismissed. The provision was at all times void as an action taken in violation of the automatic stay, and only the bankruptcy court could retroactively validate the trial court’s violation of the stay. Accordingly, the trial court’s order denying the former wife’s postjudgment motion is vacated to the extent that the trial court refused to vacate the property-division provision of the divorce judgment.

II.

The former wife next contends that the trial court acted outside its discretion in making an inequitable property division. As explained in Part I, there is no valid property-division provision in the divorce judgment for this court to review. Our resolution of the wife’s first argument makes it unnecessary to address her second argument.

III.

Finally, the former wife argues that the trial court erred in not granting her a new trial on the property-division issue because, she says, the trial court based its findings solely on the testimony of the former husband. The former wife maintains that she did not offer a rebuttal to that testimony because, she says, she was unaware that a property-division determination was being made.

The record contains no transcript of the parties’ pretrial conference with the trial court in chambers and no transcript of the evidence presented at the divorce trial. There is nothing in the record to support the former wife’s assertions in her brief to this court that her filing of a bankruptcy petition was discussed in that conference or that “the only issues to be disposed of would be those not involving property as all parties were in agreement that [the trial court] lacked the jurisdiction to make a property settlement due to the [automatic stay issued in the former wife’s] bankruptcy [proceeding].”

“An appellate court does not presume error; the appellant has the affirmative duty of showing error. Perkins v. Perkins, 465 So.2d 414 (Ala.Civ.App.1984). Appellate review is limited to the record and cannot be altered by statements in briefs. Bechtel v. Crown Central Petroleum Corp., 451 So.2d 793 (Ala.1984). Error asserted on appeal must be affirmatively demonstrated by the record. If the record does not disclose the facts upon which the asserted error is based, the error may not be considered on appeal. Liberty Loan Corp. of Gadsden v. Williams, 406 So.2d 988 (Ala.Civ.App. 1981).”

Greer v. Greer, 624 So.2d 1076, 1077 (Ala. Civ.App.1993). Accordingly, the trial court’s order denying the former wife’s postjudgment motion is affirmed to the extent that the trial court refused to grant a new trial as to the property-division issues.

Conclusion

By dividing the parties’ property in its divorce judgment, the trial court violated the automatic stay that took effect upon the former wife’s filing a bankruptcy petition. The portion of the divorce judgment that purported to divide the parties’ property is void; further, the trial court erred in denying the former wife’s motion to vacate that portion of the divorce judgment. The trial court did not err in refusing to grant the former wife’s motion for a new trial as to the property-division issues.

JUDGMENT AFFIRMED IN PART AND VACATED IN PART; AND CAUSE REMANDED.

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