text:
    Mary Jane DOWNING v. HALCYON OAKS HOMEOWNERS ASSOCIATION, INC., et al.
    2100663.
    Court of Civil Appeals of Alabama.
    March 2, 2012.
    Certiorari Petitions Denied May 11, 2012
    Alabama Supreme Court 1110692 and 1110722.

      Jerry M. Blevins, Montgomery, for appellant.
    Jeffrey W. Smith of Ryals, Plummer, Donaldson, Agricola & Smith, P.C., Montgomery; J. Knox Argo, Montgomery; and Nicholas C. Hughes, Montgomery, for ap-pellees Halcyon Oaks Homeowners Association, Inc., and Jewel Green.
    Ronald G. Davenport and Bethany L. Bolger of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellees J. Knox Argo, Nicholas Hughes, and J. Knox Argo, P.C.
   MOORE, Judge.

This court’s opinion of November 18, 2011, is withdrawn, and the following is substituted therefor.

Mary Jane Downing appeals from a judgment entered by the Montgomery Circuit Court (“the trial court”) granting a motion for a summary judgment filed by Halcyon Oaks Homeowners Association, Inc. (“the association”), and Jewel Green; granting a motion to dismiss filed by J. Knox Argo, Nicholas Hughes, and J. Knox Argo, P.C.; and denying a motion for a partial summary judgment filed by Downing.

Procedural History

On March 30, 2010, Downing filed in the trial court a petition for a writ of mandamus and a complaint against the association and Green, in her individual capacity and as president of the association. Downing alleged that the association and Green had failed to allow her to inspect the corporate records of the association and requested that the trial court require the association and Green to allow her to access those records. Downing also alleged that the association and Green had breached their fiduciary duty to her by failing to allow her access to the corporate records. Downing further alleged that Green and the association had slandered the title to her property by filing a notice of “lis pendens falsely accusing her] of not paying assessments charged against the [Downing] property.” Finally, Downing alleged that Green and the association had maliciously prosecuted an action “alleging that Downing had failed to pay assessments imposed by [the association].”

On May 11, 2010, the association and Green filed a motion to dismiss or, in the alternative, for a summary judgment. On February 4, 2011, Downing filed an amended complaint. In her amended complaint, Downing asserted the same claims she had asserted in her original complaint and added Argo, Hughes, and J. Knox Argo, P.C., as defendants with regard to the slander-of-title and malicious-prosecution claims. Downing also included a fraud claim against Hughes based on his alleged fraudulent misrepresentation that the association’s dues had been properly increased. Downing asserted that J. Knox Argo, P.C., and the association were vicariously liable for Hughes’s fraudulent misrepresentation. Finally, Downing also asserted a request for a declaratory judgment on the issue whether the dues had been properly increased.

The association and Green again moved for a summary judgment, and Hughes, Argo, and J. Knox Argo, P.C., moved for a dismissal. Downing moved for a partial summary judgment on her request for a declaratory judgment. The association and Green responded to Downing’s motion and attached evidentiary materials in support of their response. Downing then moved to strike certain evidence submitted by the association and Green in support of their response to her motion for a partial summary judgment. On March 9, 2011, the trial court entered a judgment granting the association and Green’s motion for a summary judgment; granting the motion to dismiss filed by Hughes, Argo, and J. Knox Argo, P.C.; and denying Downing’s motion for a partial summary judgment and her motion to strike. On March 31, 2011, Downing filed her notice of appeal to the Alabama Supreme Court; that court transferred the appeal to this court, pursuant to Ala.Code 1975, § 12-2-7.

Facts

Green is the president of the association. Green testified in her deposition that the association was formed in 1989. She testified that the Halcyon Oaks subdivision is composed of garden homes and town-homes. According to Green, the annual assessment fee for all homeowners in the subdivision was originally set at $25 and townhome owners paid additional monthly dues for their parking. She testified that, at some point, the annual assessment fee was increased to $50 for only- garden-home owners.

Green testified that she had been told that, in 2002, the townhome owners got together and decided that they wanted to pay an annual assessment fee of $50 per year instead of the additional monthly dues they were paying for parking and that the association had agreed and had increased the townhome owners’ annual assessment fee to $50. She testified that she was not present for that discussion and that there were no corporate records showing the increase. She later stated, however, that all the homeowners were sent a letter regarding paying an annual assessment fee of $50 and that the town-home owners were supposed to pay an annual assessment fee of $50 according to the association’s bylaws and the minutes of a meeting of the association’s officers.

Downing purchased a townhome in the Halcyon Oaks subdivision in or around 1990. By purchasing the property, she automatically became a member of the association. Downing paid an annual assessment fee of $25 each year and did not increase her payment to $50. On June 8, 2009, Downing received a notice from Green informing her that she owed the association the amount of $25 per year from 2005 through 2009 plus a $100 fine. On July 24, 2009, Downing received a letter from Argo, who is an attorney with J. Knox Argo, P.C., on behalf of the association; that letter stated that Downing owed the association the total amount of $444.98, which included past-due fees, interest, and attorney fees, and that a lawsuit would be filed if she did not pay the amount owed by August 3, 2009.

On August 17, 2009, the association filed in the Montgomery Circuit Court a complaint against Downing and five other members of the association seeking past-due assessment fees, along with late fees, interest, attorney fees, and costs; that case was styled Halcyon Oaks Homeowners Association, Inc. v. Mary Jane Downing et al. and was assigned case no. CV-09-900966. In September 2009, Downing contacted Argo and scheduled an appointment to meet with him to discuss the case. At the meeting, Hughes, who is also an attorney with J. Knox Argo, P.C., presented a settlement agreement to Downing, which she refused to sign. According to Downing, Hughes had stated that she owed $1,144.98 to the association and that, if she did not pay that amount, her property would be seized and sold to satisfy the indebtedness owed to the association. On October 19, 2009, the association filed a notice of lis pendens against Downing’s property in the Montgomery County Probate Court.

Downing testified in her affidavit that, on November 2, 2009, she sent a letter to Green requesting access to certain records of the association. According to Downing, she received no reply from Green, so she submitted a second request on December 3, 2009. According to Downing, Green did not respond to that letter either. Downing’s attorney testified in his affidavit that, on January 18, 2010, he submitted a request to Hughes for access to the corporate records identified in Downing’s November 2, 2009, request. He testified that he had several follow-up communications with Hughes regarding that request.

On January 18, 2010, Downing answered the association’s complaint in case no. CV-09-900966, but she did not file a counterclaim. Downing testified in her affidavit that she had made payments to the association until she had fully-paid the amount the association claimed she owed in case no. CV-09-900966. Downing’s attorney sent an e-mail to Hughes on January 18, 2010, stating: “[W]e understand that your cashing of the check represents ‘final payment’ insofar as the annual assessments up to 2009 are concerned.” On January 22, 2010, Downing’s attorney sent another email to Hughes, which stated: “I would also appreciate you advising as to whether you intend on continuing to pursue the pending claim(s) against my client, despite the fact that she has paid the amount claimed by your client.” Hughes responded by stating that the association might have an additional claim against Downing. Downing’s attorney replied, stating:

“[I]t is my understanding that all sums claimed by your client in the pending action have been satisfied. Whether your client may or may not have ‘new claims’ has no bearing on the claim(s) asserted in the pending matter. Thus, the continued pursuit of this action is without substantial justification. Accordingly, unless this action is dismissed by the close of business on January 26, 2010, I shall have no recourse but to seek sanctions under the Alabama Litigation Accountability Act.”

That same day, Hughes responded, stating: “With your permission, I will cash the check and file a motion to dismiss.” On January 25, 2010, the association filed a motion to dismiss the claims against Downing in case no. CV-09-900966, stating: “Now comes the [association] and shows unto the Court that it has resolved the issues as against ... Downing. [The association] therefore requests a voluntary dismissal as to ... Downing only and shows unto the Court that Counsel for ... Downing has agreed to this motion.” That motion was granted on January 27, 2010.

On February 3, 2010, the association produced certain corporate records of the association to Downing; however, the specific records that had been requested by Downing were not produced. Downing’s attorney testified that he sent Hughes two e-mails addressing the deficiency in the production and that Hughes had advised him that further correspondence should be directed to Argo. Downing’s attorney testified that, on February 16, 2010, he sent an e-mail to Argo regarding the issue of the production of the corporate records. At Argo’s request, Downing’s attorney forwarded Downing’s letters of November 2, 2009, and December 3, 2009, to Argo.

On May 13, 2010, Argo sent Downing’s attorney an e-mail in which he stated, in part: “If there is something else which you contend should be furnished to establish the dues, please state such with specificity.” Downing’s attorney responded to that e-mail, listing the documents that were being requested. Downing and Hughes testified that, although some of the requested records were produced on February 3, 2010, Downing has not been allowed access to all the documents requested in her letters of November 2, 2009, and December 3, 2009.

On November 1, 2010, Downing’s attorney sent Hughes an e-mail inquiring whether the notice of lis pendens against Downing’s property would be removed. On December 14, 2010, Downing’s attorney sent Hughes and Argo an e-mail demanding the removal of the notice of lis pen-dens. The notice of lis pendens was not removed until February 9, 2011. Downing testified that she had not been aware at the time she filed her answer in case no. CV-09-900966 that the notice of lis pen-dens had been filed against her property.

Downing testified that she had believed the representations of Hughes and the association that she owed the association $1,144.98. She testified that, when the corporate records were produced on February 3, 2010, she discovered that case no. CV-09-900966 and the notice of lis pen-dens had been filed without merit. Downing testified in her deposition that she had telephoned Wells Fargo a month before her deposition to inquire about refinancing her home loan, but, she said, she was told that she could not refinance the loan because there was a “lien or something” against her house. She testified that refinancing her loan could have saved her a lot of money because her interest rate was 6% and she was hoping to refinance at a lower interest rate of 4.5%. Downing testified that, due to the association’s refusal to produce the corporate records, she had had to file a lawsuit and to pay attorneys fee’s and had been caused emotional suffering. Downing testified in a second affidavit that Green had made her dislike of Downing known and that she had appeared intent on trying to destroy Downing at any cost.

Discussion

I.

On appeal, Downing first argues that the trial court erred in entering a summary judgment in favor of the association and Green.

“ ‘A summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. The burden is on the moving party to make a prima facie showing that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. In determining whether the movant has carried that burden, the court is to view the evidence in a light most favorable to the nonmoving party and to draw all reasonable inferences in favor of that party. To defeat a properly supported summary judgment motion, the nonmoving party must present “substantial evidence” creating a genuine issue of material fact — “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.” Ala.Code 1975, § 12-21-12; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).
“Capital Alliance Ins. Co. v. Thorough-Clean, Inc., 639 So.2d 1349, 1350 (Ala.1994). Questions of law are reviewed de novo. Alabama Republican Party v. McGinley, 893 So.2d 337, 342 (Ala.2004).”

Pritchett v. ICN Med. Alliance, Inc., 938 So.2d 933, 935 (Ala.2006).

We first address Downing’s claim of malicious prosecution against Green and the association. The association and Green assert that summary judgment was appropriate on that claim because case no. CV-09-900966 was not terminated in Downing’s favor.

“In order for a claim of malicious prosecution to be submitted to a jury, the trial court must determine that the plaintiff has presented substantial' evidence of the following elements: (1) that the present defendant instituted a prior judicial proceeding against the present plaintiff; (2) that in instituting the prior proceeding the present defendant acted without probable cause and with malice; (3) that the prior proceeding ended in favor of the present plaintiff; and (4) that the present plaintiff was damaged as a result of the prior proceeding.”

Wal-Mart Stores, Inc. v. Goodman, 789 So.2d 166, 174 (Ala.2000). In Evans v. Alabama Professional Health Consultants, Inc., 474 So.2d 86, 88 (Ala.1985), our supreme court held that a stipulation of dismissal filed in a case was “in the nature of a settlement agreement, compromising the interests of both parties, but ‘in favor’ of neither party.” The court concluded that, because the prior action in which a stipulation of dismissal had been filed had not been terminated in favor of the malicious-prosecution plaintiff, the malicious-prosecution claim could not be maintained. Id.

In the present case, the undisputed evidence indicates that Downing paid the amount the association was claiming she owed in case no. CV-09-900966, that Downing’s attorney then requested that the case be dismissed, and that the association thereafter filed a motion to dismiss the case, specifically noting that Downing had agreed to the filing of that motion. On application for rehearing, Downing argues that, because the stipulation of dismissal was not signed by her and was procured by fraud, her malicious-prosecution claim should be allowed to go forward. She notes that, in Evans, the supreme court specifically held that a stipulation signed by all the parties was in the nature of a settlement agreement. We note, however, that, in the present case, the attorney for the association indicated on the stipulation of dismissal that Downing agreed with it, and evidence was introduced indicating that Downing had paid the amount that the association had requested and had then requested that the association dismiss the case. Thus, there is sufficient evidence of Downing’s assent to the stipulation of dismissal. Just like in Evans, we cannot hold that case no. CV-09-900966 was terminated in favor of Downing because it is undisputed that the association dismissed the action only after Downing had paid the full amount claimed in the lawsuit and had requested a dismissal. Thus, we conclude that summary judgment in favor of the association and Green was appropriate on Downing’s malicious-prosecution claim.

The association and Green assert that Downing’s remaining claims against them — slander of title, breach of fiduciary duty, a request for a writ of mandamus requiring the association to produce corporate records, and a request for a declaratory judgment — are barred by the compulsory-counterclaim rule.

“‘Rule 13(a), [Ala.] R. Civ. P., provides, in pertinent part, as follows:
“ ‘ “(a) Compulsory counterclaims. 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.... ”
“ ‘The following are pertinent Committee Comments to that subsection:
“ ‘ “The purpose of this provision is to avoid circuity of actions, and to require assertion as counterclaims of those claims which are likely to turn on the same facts as the original claim. A counterclaim is compulsory if there is any logical relation of any sort between the original claim and the counterclaim.... ”
“‘(Citations omitted.) (Emphasis added.) We have consistently applied the “logical relationship” test suggested in the aforementioned Committee Comments to determine what is and what is not a compulsory counterclaim. See Ex parte Canal Insurance Co., 534 So.2d 582 (Ala.1988), and Brooks v. Peoples National Bank of Huntsville, 414 So.2d 917 (Ala.1982); see, also, O’Donohue v. Citizens Bank, 350 So.2d 1049 (Ala.Civ.App.1977).
“““[Claims are logically related] to the opposing party’s claim where separate trials on each of their respective claims would involve a substantial duplication of effort and time by the parties and the courts. Where multiple claims involve many of the same factual issues, or the same factual and legal issues, or where they are offshoots of the same basic controversy between the parties, fairness and considerations of convenience and of economy require that the counter-claimant be permitted to maintain his cause of action. Indeed the doctrine of res judicata compels the counter-claimant to assert his claim in the same suit for it would be barred if asserted separately, subsequently.” ’
‘Mississippi Valley Title Ins. Co. v. Hardy, 541 So.2d 1057, 1059-60 (Ala.1989) (citations omitted) (quoting Desroches v. Ryder Truck Rental, Inc., 429 So.2d 1010, 1012 (Ala.1983), quoting an earlier case).
“ “While we have not defined the terms “transaction” or “occurrence” in Rule 13(a), the Missouri Supreme Court has defined “transaction” in its Rule 55.32(a), V.A.M.R., which is identical to Rule 13(a), in Myers v. Clayco State Bank, 687 S.W.2d 256, 260-61 (Mo.App.1985), quoting Cantrell v. City of Caruthersville, 359 Mo. 282, 221 S.W.2d 471 (1949), as follows:
“ ‘ “Transaction imports a pliable meaning and may encompass a series of occurrences, and depends in application, not so much upon the immediacy of connection, as upon logical relationship. Claim [of either the original pleader or of the counterpleader] refers not to the form of the action, but ‘to the underlying facts combined with the law giving a party .a right to a remedy of one form or another based on the claim.’ Subject matter of the claim does not equate merely with the cause of action, , nor the object of the action, but rather ... describes the composite of ‘physical facts, the things real or personal, the money, lands, chattels, and the like, in relation to which the suit is prosecuted.’ Thus, the term transaction extends to include ... ‘all of the facts and circumstances which constitute the foundation of a claim ... “all the facts and circumstances out of which the injury complained of arose.” ’ ”
“ ‘(Citations omitted.) (Emphasis in Myers.) This definition is consistent with our logical relationship test and the purpose of Rule 13(a) (“[t]he rule on compulsory counterclaims should receive a ‘broad realistic interpretation in light of the interest of avoiding a multiplicity of suits,” ’ Mississippi Valley Title Ins. Co. v. Hardy, 541 So.2d at 1060).’ ”

Owens v. Owens, 31 So.3d 722, 726-27 (Ala.Civ.App.2009) (quoting JJ’s Heating & Air Conditioning, Inc. v. Gobble-Fite Lumber Co., 572 So.2d 1243, 1244-45 (Ala.1990)).

Downing’s claims of breach of fiduciary duty and for mandamus relief arose from the association and Green’s alleged failure to produce corporate records in support of the association’s claim for past-due assessment fees, which served as the basis of the claims asserted by the association against Downing in case no. CV-09-900966. Downing’s slander-of-title claim arose from the filing of the notice of lis pendens against Downing’s property in connection with case no. CV-09-900966. Downing’s request for a declaratory judgment involved the merits of the association’s claims against Downing in case no. CV-09-900966. We conclude that all of those claims have a logical relationship with the claims for past-due assessment fees asserted by the association against Downing in case no. CV-09-900966. Because Downing’s claims are logically related to the claims asserted by the association in case no. CV-09-900966, they arise from the same transaction for purposes of Rule 13(a). Owens, supra.

In response to the association and Green’s argument that her remaining claims against them are barred by the compulsory-counterclaim rule, Downing argues that, because she was not aware of her slander-of-title claim at the time she filed her answer in case no. CV-09-900066, the compulsory-counterclaim rule is not applicable to that claim. In support of her argument, Downing cites Sho-Me Motor Lodges, Inc. v. Jehle-Slauson Construction Co., 466 So.2d 83, 90 (Ala.1985), in which our supreme court held: “Rule 13(a)[, Ala. R. Civ. P.,] cannot be construed to require a party to file as a compulsory counterclaim a claim which it does not know it has.” Downing testified in her affidavit that she was not aware that the association had filed a notice of lis pendens as to her property or that the association’s claims were improper until after she had filed .her answer in case no. CV-09-900966. We construe Sho-Me as requiring actual knowledge of a claim; thus, the mere filing of the notice of lis pendens, which would have given Downing constructive notice of her claim, would not be sufficient. 466 So.2d at 90. Accordingly, we conclude that her slander-of-title claim against the association and Green is not barred by the compulsory-counterclaim rule.

The association and Green also argue that summary judgment was appropriate on Downing’s slander-of-title claim because no malice or damages were proved. See Harrison v. Mitchell, 391 So.2d 1038, 1041 (Ala.Civ.App.1980) (“To recover for slander of title to realty a plaintiff must establish: (1) his ownership of the property slandered; (2) publication by the defendant of a false statement concerning his title; (3) malice by the defendant in publishing his statement; (4) publication of the statement to someone other than the plaintiff; (5) publication of the statement by the defendant in disparagement of plaintiffs property or his title thereto; and (6) special damages proximately caused by the publication of the statement.”). As Downing argues, however, there are genuine issues of material fact as to both of those elements. To show malice, Downing must prove that the association and Green intentionally or recklessly disparaged the title to her property. See, e.g., Dabbs v. Four Tees, Inc., 36 So.3d 542, 558 (Ala.Civ.App.2008). Downing points out that, based on Green’s deposition testimony that the annual assessment fee was increased as a result of an informal agreement among the townhome owners, there is an issue of fact as to whether the fees were properly increased and, if they were not, whether the association and Green had knowledge that the fees were not properly increased. If that issue of fact were to be resolved in favor of Downing, there would be sufficient proof that the association and Green intentionally or recklessly disparaged Downing’s property because there would have been no proper basis for the filing of the association’s lawsuit or the notice of lis pendens. With regard to the damages element, Downing testified in her affidavit that she had been prevented from refinancing her home loan at a lower interest rate because of the presence of the notice of lis pendens that was filed against her property. Accordingly, we conclude that a genuine issue of material fact exists with regard to the elements of the slander-of-title claim.

Based on the foregoing, we conclude that the trial court erred in entering a summary judgment on Downing’s slander-of-title claim against Green and the association. We also conclude that the trial court correctly entered a summary judgment on the remaining claims asserted by Downing against Green and the association.

II.

Downing next argues that the trial court erred in granting the motion to dismiss filed by Hughes, Argo, and J. Knox Argo, P.C., with regard to her claims of slander of title, malicious prosecution, and fraud.

“The appropriate standard of review under Rule 12(b)(6)[, Ala. R. Civ. P.,] is whether, when the allegations of the complaint are viewed most strongly in the pleader’s favor, it appears that the pleader could prove any set of circumstances that would entitle her to relief. Raley v. Citibanc of Alabama/Andalusia, 474 So.2d 640, 641 (Ala.1985); Hill v. Falletta, 589 So.2d 746 (Ala.Civ.App.1991). In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether she may possibly prevail. Fontenot v. Bramlett, 470 So.2d 669, 671 (Ala.1985); Rice v. United Ins. Co. of America, 465 So.2d 1100, 1101 (Ala.1984). We note that a Rule 12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief. Garrett v. Hadden, 495 So.2d 616, 617 (Ala.1986); Hill v. Kraft, Inc., 496 So.2d 768, 769 (Ala.1986).”

Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993). “A ruling on a motion to dismiss is reviewed without a presumption of correctness.” Newman v. Savas, 878 So.2d 1147,1148-49 (Ala.2003).

We initially note that Hughes, Argo, and J. Knox Argo, P.C., argued in their motion to dismiss that Downing’s claims were barred by, among other things, the defenses of estoppel, res judica-ta, accord and satisfaction, and waiver. Downing has failed to present an argument in her brief to this court with supporting authority on each of those defenses. “When an appellant confronts an issue below that the appellee contends warrants a judgment in its favor and the trial court’s order does not specify a basis for its ruling, the omission of any argument on appeal as to that issue in the appellant’s principal brief constitutes a waiver with respect to the issue.” Fogarty v. Southworth, 953 So.2d 1225,1232 (Ala.2006); see also City of Birmingham v. Business Realty Inv. Co., 722 So.2d 747, 752 (Ala.1998) (‘When an appellant fails to cite any authority for an argument on a particular issue, this Court may affirm the judgment as to that issue, for it is neither this Court’s duty nor its function to perform an appellant’s legal research.”). Thus, we conclude that Downing has waived her arguments with respect to the propriety of the dismissal of her claims against Knox, Hughes, and J. Knox Argo, P.C.

III.

Downing’s final argument is that the trial court erred in denying her motion for a partial summary judgment on her request for a declaratory judgment and that the trial court erred in denying her motion to strike certain evidence offered by the association regarding the merits of that claim. As noted previously, however, Downing’s request for a declaratory judgment was barred by the compulsory-counterclaim rule as a matter of law. Thus, the trial court did not err in denying her motion for a partial summary judgment on that claim. Further, any error with regard to the denial of her motion to strike is harmless because we do not reach the merits of Downing’s argument with regard to the declaratory-judgment claim. Rule 45, Ala. R.App. P.

Conclusion

Based on the foregoing, we reverse the summary judgment on Downing’s claim of slander of title against the association and Green, we affirm the judgment in all other respects, and we remand the cause for further proceedings.

APPLICATION GRANTED; OPINION OF NOVEMBER 18, 2011, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

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

      . The present action was filed two months after Downing filed her answer in case no. CV-09-900966. Based on this time line, it is clear that this telephone call was not placed until after her answer was filed in that action.
      Although a notice of lis pendens is not a "lien,” for purposes of determining whether the summary judgment was proper, we assume that Wells Fargo was referring to the notice of lis pendens.

      . We note that Downing makes this argument with regard to only the slander-of-title claim.

        Thus, we will not address whether she had knowledge of her other claims at the time she filed her answer in case no. CV-09-900966. "An argument not made on appeal is abandoned or waived.” Avis Rent A Car Sys., Inc. v. Heilman, 876 So.2d 1111, 1124 n. 8 (Ala.2003).

      . As Downing argued in her application for rehearing, Lloyd Noland Foundation, Inc. v. City of Fairfield Healthcare Authority, 837 So.2d 253, 263 (Ala.2002), states that an "appeal from a pretrial final judgment disposing of all claims in the case (as distinguished from a Rule 54(b)[, Ala. R. Civ. P.,] summary judgment disposing of fewer than all claims) entitles the [appellant], for purposes of our review, to raise issues based upon the trial court’s adverse rulings, including the denial of its summary-judgment motions."


source: Caselaw Access Project

author: PITTMAN, Judge.

license: Public Domain

text:
    Judy FAUST v. Bryan W. KNOWLES. Bryan W. Knowles v. Judy Faust.
    2100513.
    Court of Civil Appeals of Alabama.
    May 4, 2012.
    See 952 So.2d 380.

      E. Charles Ogden III, Guntersville, for appellant/cross-appellee Judy Faust.
    Clint L. Maze of Burke, Beuoy & Maze, P.C., Arab, for appellee/cross-appellant Bryan W. Knowles.
   PITTMAN, Judge.

Judy Faust (“the mother”) appeals, and Bryan W. Knowles (“the father”) cross-appeals, from a judgment of the Marshall Circuit Court entered in a postdivorce modification proceeding and in a related civil action brought by the mother and the parties’ children, Andrew W. Knowles (“the son”) and Patricia Tana Knowles (“the daughter”) seeking equitable relief as to certain custodial financial accounts containing funds alleged to belong to the son. We affirm in part and reverse in part as to the appeal; affirm as to the cross-appeal; and remand.

This is the second time that the mother and the father have appeared before this court. In Faust v. Knowles, 952 So.2d 380 (Ala.Civ.App.2006), this court noted that the parties had exercised true joint custody of the son and the daughter under the terms of their agreed divorce judgment; that the son was “13 years old and [the] daughter ... was 10 years old” when a previous modification action had been heard in February 2004; and that the trial court had, in October 2004, declined to modify the custody provisions of that judgment. Id. at 381-82. In Faust, we reversed the trial court’s decision not to modify custody, concluding that the trial court had applied an improper custody standard; however, the trial court, on remand, did not enter a judgment conforming to this court’s mandate until September 2009. In the September 2009 judgment entered on remand, the mother was awarded primary physical custody of the son, but the daughter’s joint custody was not changed.

In January 2010, the son and the mother brought a civil action against the father and the investment bank that had allegedly held funds belonging to the son in a custodial account under the control of the father; in that action, the son and the mother sought a judgment directing the father to provide an accounting and requiring the father to cease disbursement of funds in the custodial account. A motion was filed in that action in May 2010 seeking to add the daughter as a plaintiff, who claimed to have a custodial financial account at the same financial institution. Although the father filed an answer generally denying the allegations of the complaint, he subsequently filed a counterclaim in which he averred that the moneys deposited in the children’s custodial accounts had been given to him by the father’s parents for the educational benefit of the children, i.e., to defray college costs not covered by prepaid-college-tuition plans acquired on behalf of the children; he sought a judgment declaring that he was the actual owner of the accounts or, in the alternative, a judgment against the plaintiffs for money paid by mistake.

At the same time that the civil action regarding the custodial accounts was pending, the father filed pleadings seeking a finding of contempt against the mother for having allegedly failed to allow him to have contact with the daughter and a modification of the divorce judgment to award him sole custody of the daughter; the mother filed an answer denying the father’s right to relief, and she asserted a counterclaim seeking sole custody of the daughter and both child support and postminority educational support. Pendente lite custody of the daughter was awarded to the mother pending a final hearing, and the mother subsequently asserted a contempt claim against the father stemming from his alleged refusal to pay legitimate expenses of the children.

In November 2010, the trial court held a trial as to all claims of the mother, the father, and the children in both actions. At that trial, the mother, the father, the children, and the father’s mother testified regarding the substantive issues in controversy, and all parties appearing at trial agreed that the investment bank was not a proper party to the action. The trial court subsequently entered a judgment awarding the mother primary physical custody of the daughter, subject to the father’s visitation rights; directed the father to pay $346 per month in child support based upon an express deviation from the Rule 32, Ala. R. Jud. Admin., child-support guidelines; directed both parents to maintain health insurance with respect to the daughter; directed the father to pay $6,035.49 to the mother for unpaid college-education expenses and medical expenses of the children; and otherwise denied all other requests for relief. The mother’s timely postjudgment motion to alter, amend, or vacate the judgment averred, among other things, that the trial court had erred in determining the father’s child-support obligation as to the daughter, had erred in declining to find him in contempt, and had erred in failing to address the claims that the father was improperly disbursing moneys from the custodial accounts. The trial court denied that motion. The mother appealed and the father cross-appealed from the trial court’s judgment; the son and the daughter are not parties to the appeals.

We will first address the father’s cross-appeal, in which he primarily contends that the trial court acted outside its discretion in failing to award him custody of the daughter. We note that during the pendency of these appeals, the daughter (whose birthday is February 25, 1993) reached the age of majority. Because the daughter is now an adult (see § 26-1-1, Ala.Code 1975), her custody is no longer the subject of controversy, and this court cannot grant effective relief. The father’s contention that the trial court erred in denying his petition for custody as to the daughter is therefore moot. E.g., Wendel v. Wendel, 331 P.2d 370, 371 (Okla.1958) (when, pending appeal from custody-modification judgment, child reached age of majority, question of propriety of judgment became moot). Thus, the trial court’s judgment is due to be affirmed as to that issue. 5 Am.Jur.2d Appeal & Error § 932 (1962) (“A judgment or order may be affirmed without consideration of the merits of the case where the question has become moot.”); accord 5 C.J.S. Appeal & Error § 1024 (2007); see also L.R.M. v. D.M., 962 So.2d 864, 872 n. 7 (Ala.Civ.App.2007) (holding that issue of propriety of award of custody of child to paternal grandparents for six-month period was moot because six months had elapsed). Further, because the father’s principal brief contends that the trial court’s judgment as to child support should be reversed only in the event that this court reverses that judgment as to the custody issue, his cross-appeal is, as to the second issue, predicated upon the happening of an event that has not taken place, which warrants affirmance as to that issue as well. See Bess v. Waffle House, Inc., 824 So.2d 783, 787 (Ala.Civ.App.2001) (affirming as to conditional cross-appeal when the condition on which the pertinent argument was predicated had not occurred).

We now turn to the issues raised in the mother’s appeal. The mother first contends that the trial court erred in calculating child support with respect to the daughter. The record reflects that the trial court prepared a Form CS-42 to determine the support payable under the Rule 32, Ala. R. Jud. Admin., child-support guidelines, utilizing a Form CS^U income-affidavit form supplied by the father. The father’s Form CS-41 listed the father’s monthly income as $4,386, an amount considerably less than the father’s pay stubs indicated that he was actually earning; that form also noted that the father was paying $551.01 per month for health-insurance coverage for the daughter. The trial court’s judgment indicates that the trial court had calculated the guidelines amount of support based upon those figures, but the court deviated upward by $200. In a response to the mother’s postjudgment motion, counsel for the father candidly admitted that the monthly income listed on the father’s Form CS-41 was obtained by dividing the father’s year-to-date income as shown on a pay statement dated October 2010 by 12 months rather than by 10 months, but the father’s counsel contended that the trial court’s inclusion of the father’s health-insurance premiums in its calculations was warranted because both parties had been required to provide coverage for the daughter in the judgment. The trial court did not modify its judgment in response to the mother’s motion or the father’s averments, however.

We agree with the mother that the trial court, in making its determination concerning what the guidelines would require of the father in terms of child support, erred in using an erroneous income figure. We reverse the trial court’s child-support determination and remand for that court to recalculate the father’s child-support obligation under the guidelines using the correct income figure and to enter a child-support determination that either conforms to the proper application of the guidelines or that validly and explicitly deviates therefrom. However, we will not disturb the trial court’s inclusion of the father’s health-insurance premiums in its guidelines calculations given that court’s express determination that both parents should carry health insurance on the daughter, who was shown to have been diagnosed with mental-health conditions, because of the existence of her mental-health conditions. As we suggested in Volovecky v. Hoffman, 903 So.2d 844, 848 & n. 3 (Ala.Civ.App.2004), a court considering an issue of support for minor children might well determine that “it would be appropriate to impose on both parents an obligation to provide insurance covering the children, even if there is some degree of overlap in the policies” and even though the general rule is that “a child-support obligation will be calculated using the premium for a single health-insurance policy covering medical expenses.”

We next consider the mother’s contention that the trial court erred in declining to address the issues raised in the civil action brought by her and the children regarding the custodial accounts. As the trial court noted during the trial, whether to order an accounting with respect to accounts created pursuant to the Uniform Transfers to Minors Act (“UTMA”), Ala. Code 1975, § 35-5A-1 et seq., is a matter of trial-court discretion. See Ala.Code 1975, § 35-5A-20(c). The father testified at trial that he had not utilized any of the funds in the custodial account established for the benefit of the daughter, but he admitted that he had used a portion of the funds in the son’s custodial account to satisfy the son’s educational expenses in lieu of making payments from the father’s other earnings or assets; although the father testified that the son’s account had contained approximately $13,000 in 2007 (i.e., when the son’s paternal grandfather had died and custodial control of the funds had passed to the father), the account had been reduced, by stock-market declines and educational expenditures, to between $8,000 and $9,000 at the time of trial. The father further testified that the funds in the custodial accounts had been gifts to him from the paternal grandparents and that the intent of the gifts was so that the father would pay, in his words, “my half of the college expenses” of the son and the daughter.

It is true that, under Alabama law, a trial court considering whether to establish a postminority-support obligation as to a party’s child pursuant to Ex parte Bayliss, 550 So.2d 986, 987 (Ala.1989), is to consider “all relevant factors that shall appear reasonable and necessary, including primarily the financial resources of the parents and the child ” (some emphasis in original; some emphasis added); see also Goetsch v. Goetsch, 66 So.3d 788, 791 (Ala.Civ.App.2011). It may likewise be presumed that similar considerations of the child’s resources would be pertinent in a proceeding to modify such a postminority-support obligation. However, the trial court in this case was not called upon to establish or modify an obligation to provide postminority support; rather, it was called upon to interpret and enforce a preexisting obligation that had been in place since 2000, when the trial court’s divorce judgment had ratified the agreement of the mother and the father to equally share all costs not covered by other sources such as the children’s prepaid-college-tuition plans.

Although it is correct to say that, under the UTMA, a custodian of funds for a minor beneficiary may generally disburse funds from a custodial account for the benefit of that minor’s education, such an expenditure is, as a matter of law, “in addition to, not in substitution for, and does not affect any obligation of a person to support the minor.” Ala.Code 1975, § 35-5A-15(c). The trial court’s judgment in this particular case directly contravened § 35-5A-15(c) because that judgment, in effect, ratified the father’s unilateral use of the son’s funds as a substitute for the father’s funds, thereby prejudicing the interests of not only the son, but also the mother (who necessarily received no benefit as to her half of unsatisfied postminority educational expenses incurred by the son). We must therefore reverse the trial court’s judgment to the extent that that court did not apply § 35-5A-15(c), and we remand for a determination of what expenditures were made by the father from the son’s custodial account in substitution of the father’s duty to pay half of the son’s unsatisfied college expenses.

The mother finally contends that the trial court erred in declining to find the father in contempt. However, her one-page argument to the effect that the father has “willfully and wantonly refused to obey orders of the trial court” cites as authority only the definition of civil contempt contained in Rule 70A(D), Ala. R. Civ. P., and directs this court to no provision of a previous court order that the father has un-disputedly willfully violated. Thus, the mother has not presented an argument warranting reversal as to that issue. See Walden v. Hutchinson, 987 So.2d 1109, 1121 (Ala.2007) (authority supporting only general propositions of law will not constitute a sufficient argument for reversal).

Based upon the foregoing facts and authorities, the judgment of the trial court is affirmed except as to the child-support award with respect to the daughter and the failure to address the mother’s contentions that the father improperly utilized the son’s funds to satisfy the father’s own support obligation. The causes are remanded for further proceedings as to those issues.

AFFIRMED IN PART AND REVERSED IN PART AS TO THE APPEAL; AFFIRMED AS TO THE CROSS-APPEAL; CAUSES REMANDED.

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

      . The father filed, during the pendency of these appeals, a motion seeking leave to file a petition in the trial court to modify his child-support obligation; that motion was submitted for decision along with the appeals. Because the daughter has attained the age of majority, we conclude that a change in circumstances warranting a modification of the father’s child-support obligation has occurred; therefore, his motion is granted.

      . We reject the father’s contention that this issue was not preserved for appellate review; the mother’s pretrial statement, her elicitation of trial testimony from the parties, and her postjudgment motion all invoke, or at least pertain to, her claim that the father had misappropriated funds belonging to the son and the daughter.


author: BRYAN, Judge.

text:
    Curtis GORE v. Patricia (Gore) WHITE. Patricia (Gore) White v. Curtis Gore.
    2100636.
    Court of Civil Appeals of Alabama.
    May 4, 2012.

      Nicholas A. Jones of Blanchard Law Offices, Montgomery, for appellant/cross-appellee Curtis Gore.

      Terrie S. Biggs of Capell & Howard, P.C., Montgomery, for appellee/cross-ap-pellant Patricia (Gore) White.
   BRYAN, Judge.

Curtis Gore (“the former husband”) appeals from a judgment of the Montgomery Circuit Court (“the trial court”) that ordered him to pay postminority-educational-support arrears and that modified his post-minority-educational-support obligation. Patricia White (“the former wife”) cross-appeals from the same judgment insofar as the trial court modified the former husband’s postminority-educational-support obligation and failed to award her a greater amount of attorney fees.

Procedural History

The parties were divorced by the trial court in January 2004, and their divorce judgment incorporated an agreement of the parties. Pursuant to that agreement, the former wife was awarded primary physical custody of the parties’ daughter (“the child”), the only remaining minor child of the parties. The pertinent parts of the parties’ agreement provided as follows:

“4.(E) The parties agree to be responsible on a pro rata basis, meaning the percentage each contributed to a calculation of joint income, for the college education expenses of the ... child, including tuition, room and board, books and fees....
“10. Contempt: Should either party fail to abide by the terms of this agreement or take some action which amount[s] to contempt of the court, and it becomes necessary for the other party to seek the relief of the court to enforce his or her rights under this agreement, then the party seeking relief shall be entitled to reimbursement of his or her attorneys fees and other costs.”

On May 2, 2007, the former husband filed a petition to modify his child-support obligation based on an alleged decrease in his income. The former wife filed an answer and a counterclaim requesting modification of certain terms of the divorce judgment. The former wife also requested that the former husband pay a pro rata share of expenses incurred by the child for summer college courses that she had taken before she graduated from high school. The parties entered into a second agreement that provided, in pertinent part:

“4. The former wife agrees that if [the child] wants to attend any other pre-high school graduation college courses, that the former husband will be consulted and will have the right to approve them before he is financially responsible for paying a pro rata share of the costs; and
“5. When [the child] graduates from high school, the former wife and [the] child will consult with the former husband concerning the child’s college plans, and will do so in sufficient time so that he may seek a legal remedy if he strongly disagrees with [the childj’s decision.
“6. All other terms of the [divorce judgment] not modified herein shall remain in full force and effect.”

(Emphasis added.)

The parties’ agreement was incorporated into a judgment modifying the parties’ divorce judgment (“the modification judgment”) on November 20, 2007.

The record indicates that the child began attending the University of Texas in fall 2009. On September 18, 2009, the former wife filed a show-cause petition seeking to hold the former husband in contempt for his failure to pay his pro rata share of the child’s college expenses, among other alleged violations of the divorce judgment and the modification judgment. The former wife sought an award of attorney fees based on paragraph 10 of the divorce judgment.

On January 19, 2010, the former husband filed an answer to the former wife’s contempt petition and a counterclaim to modify the divorce judgment and the modification judgment. He alleged that there had been a material change in circumstances since the entry of the last judgment because the child had chosen to attend an out-of-state college. He alleged that the cost of attending the out-of-state college was “exponentially higher than any in-state public institution and was otherwise not contemplated by the former husband when he signed the previous agreements.” The former husband further alleged that he did not have the funds necessary to contribute to the child’s out-of-state college expenses, and he asked the trial court to modify the terms of the previous judgments to “reflect a more appropriate postminority support payment.”

The trial court conducted an ore tenus hearing on May 3, 2010, and August 27, 2010. On September 7, 2010, the trial court entered an order that stated, in pertinent part, “that [paragraph] number five ... in the [modification judgment] is vague and overly broad, and further, that it contains a latent ambiguity and is therefore due to be modified.”

On November 28, 2010, the trial court conducted a hearing on the former husband’s petition to modify based on a material change in circumstances regarding his ability to pay the child’s out-of-state college expenses. On December 21, 2010, the trial court entered a judgment that made the following specific findings of fact and legal conclusions:

“The former wife contends that[,] at the time of the divorce, the former husband agreed to pay his pro rata share of the college education expenses of the ... child including tuition, room and board, books and fees. The former wife also contends that in the settlement agreement of the modification petition, the parties agreed that the ... child would consult with the former husband concerning [the child]’s college plans in sufficient time that the former husband may seek legal remedy if he strongly disagreed with [the child]’s decision. [The] former wife contends that throughout [the child]’s senior year in high school, she and [the child] consulted with [the] former husband regarding college applications and the selection process. Further, [the child] notified her father[, the former husband,] well in advance of her high school graduation of her selection of a college choice of the University of Texas. The former wife requested in writing that the former husband seek his legal remedy pursuant to the modification [judgment] if he disagreed with [the child]’s college choice. Rather than seek his legal remedy, the former husband simply refused to pay his pro rata [share] (87%) of [the child]’s college expenses and limited his contribution to that of his pro rata share (87%) of in-state college tuition costs.
“Evidence was clear that the former wife’s Petition to Show Cause filed September 18, 2009, was the result of the former husband’s refusal to seek legal remedy as contemplated in the parties’ modification agreement. Evidence was further clear that the former wife attempted service on the former husband by certified mail, which the former husband never picked up. Further, the former wife’s attempts to serve the former husband by process server were not successful. The former husband was served following the December 7, 2009, order granting former wife’s Motion for Service of Process by Ordinary Mail, and former husband filed his responsive pleading more than four months after the former wife filed her Petition to Show Cause. Such a delay resulted in delay of this matter being heard and additional attorney’s fees incurred by the former wife. Evidence is clear that the parties’ settlement agreement incorporated in the [divorce judgment] included no restrictions regarding the choice of college made by the ... child restricted to that of an in-state public institution. Further, the evidence was clear that the recognized pro rata share of the former husband’s contribution to the minor child’s college expenses since the parties’ 200[4] divorce was 87% and the former wife 13%. Clearly, the former husband’s income has increased since the time of divorce as well as the 2007 modification.
“Evidence was also clear that the former husband purchased a residence in 2006, prior to the 2007 modification, said residence purchase price being $563,800.00. Evidence was further clear that the former husband purchased a vehicle in 2006, said purchase price of the vehicle being in excess of $30,000.00.
“... Evidence shows that in the fall 2009 semester, the ... child’s actual college expenses were $20,246.45. The former husband’s pro rata share obligation of those college expenses should have been $17,614.41. However, the former husband only contributed $8,318.95 for the fall of 2009. The difference between the amount the former husband paid toward the 2009 fall semester and the pro rata 87% share was $9,295.46.
“For the spring 2010 semester, the minor child’s actual expenses were $21,913.02. The former husband’s 87% pro rata share of that amount should have been $19,064.33. The former husband’s actual contribution was $8,618.94, leaving a difference of $10,445.39.
“For the 2010 fall semester, evidence showed that the minor child’s actual expenses were $20,935.60, to which the former Husband’s 87% pro rata share would have been $18,213.97. Evidence shows that the former husband actually contributed $8,818.94, leaving a difference of $9,395.03.
“The former wife showed evidence that she has incurred attorney’s fees as of the November 23, 2010 trial date in the amount of $18,901.41. [The fjormer wife’s attorney’s fees began during the minor child’s senior year in high school in attempts to encourage the former husband to seek legal remedy if he disagreed with [the child]’s college choice and continued through the date of trial, including efforts to have the former husband served with the Petition to Show Cause.
“In its September 7, 2010, order, this Court found a latent ambiguity existed in the modification agreement, and therefore, will modify former husband’s pro rata share of the ... child’s college tuition and expenses....
“The remaining issues [for] the Court to decide were the issue of contempt, the former husband’s obligation toward [the child]’s college expenses, the issues of attorney’s fees and the effective date of the modification of college expenses.
“Based on the foregoing, it is ORDERED, ADJUDGED and DECREED as follows:
“1. That the former husband’s pro rata share of college expenses is hereby modified to that of 65% of the tuition at the University of Texas. Should the [child] return to the state of Alabama for the balance of her college education, the former husband’s pro rata share shall revert to that of 87% effective the semester [the child] attends a public college in the state of Alabama.
“2. That the modified pro rata share of [the] former husband’s obligation to [the child]’s college expenses at the University of Texas shall be effective for the spring 2011 semester, and not retroactive. Therefore, the former husband is obligated to the former wife in the amount of $9,295.45 for the fall 2009 semester, $10,445.39 for the spring 2010 semester, $9,395.03 for the fall 2010 semester, totaling $29,135.87 to be paid to the former wife within ninety (90) days of this Order. The former husband’s obligation for these past expenses is due to his failure to assert his right to seek legal remedy as provided in the parties’ modification agreement....
“3. Beginning the spring semester of 2011, the former husband’s pro rata share shall be in the amount of 65% of college tuition expenses.
“4. That the former husband shall be responsible for the legal fees of the former wife in the amount of $1,000.00.”

Although the trial court’s judgment does not specifically address the former wife’s requests to hold the former husband in contempt, it is evident from our review of the record, including the transcripts from the ore tenus hearings, that the trial court concluded that the former husband was not in contempt. Accordingly, we conclude that the judgment was final because it included an implicit denial of the former wife’s requests to hold the former husband in contempt. See Faellaci v. Faellaci, 67 So.3d 923, 925 (Ala.Civ.App.2011) (concluding that the absence of a specific ruling on a pending petition for a rule nisi did not render the judgment nonfinal because “the trial court’s judgment sufficiently indicate[d] an intention to conclusively rule on the wife’s pending petition for a rule nisi”).

Both parties filed timely postjudgment motions, and both postjudgment motions were denied. The former husband filed a timely notice of appeal, and the former wife filed a timely cross-appeal.

Issues

On appeal, the former husband argues: (1) that the trial court erred by failing to place limitations on his prospective obligation to pay postminority educational support; (2) that the trial court erred by requiring him to pay 87% of the child’s postminority educational expenses from the fall 2009 semester through the fall 2010 semester; (3) that the trial court erred by requiring him to pay 65% of the child’s prospective postminority educational expenses beginning in the spring 2011 semester; and (4) that the trial court erred by requiring him to pay the former wife $1,000 toward her attorney fees.

In her cross-appeal, the former wife argues: (1) that the trial court erred by awarding her only $1,000 in attorney fees; (2) that the trial court erred by concluding that an ambiguity existed in paragraph five of the modification judgment; and (3) that the trial court erred by modifying the former husband’s pro rata share of the child’s postminority educational expenses.

Standard of 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.’ 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.’ Id.”

Fadalla v. Fadalla, 929 So.2d 429, 433 (Ala.2005). “Questions of law are reviewed de novo.” Alabama Republican Party v. McGinley, 893 So.2d 337, 342 (Ala.2004). See also Routzong v. Baker, 20 So.3d 802, 806 (Ala.Civ.App.2009) (“This court reviews de novo a trial court’s determination with respect to whether an agreement incorporated into a divorce judgment is ambiguous.”).

Discussion

Because the issues raised in the former husband’s appeal overlap, at times, with issues raised by the former wife in her cross-appeal, we will address the arguments raised by each party by issue and, when necessary, will discuss the arguments presented by both parties within the scope of each issue raised.

I. Ambiguity of Paragraph Five of the Modification Judgment

Because it affects our analysis of certain arguments presented by the parties on appeal, we will first consider the former wife’s argument that the trial court erred by concluding that paragraph five of the modification judgment was ambiguous.

“ ‘ “[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.’ ”

Routzong v. Baker, 20 So.3d at 806 (quoting R.G. v. G.G., 771 So.2d 490, 494 (Ala.Civ.App.2000)).

In its September 7, 2010, order, and later in the final judgment, the trial court found that paragraph five of the agreement incorporated into the modification judgment was vague, overly broad, and contained a latent ambiguity. Initially, we note that the former husband argued at trial, and maintains on appeal, that the divorce judgment and the modification judgment were overly broad and, thus, ambiguous because there were no provisions limiting the scope of the former husband’s postminority-educational-support obligation. See generally Lindenmuth v. Lindenmuth, 66 So.3d 267, 272 (Ala.Civ.App.2010) (“In cases involving requests to establish or modify a postminority-support award governed by [Ex parte ] Bayliss, [550 So.2d 986 (Ala.1989) ], this court has held that a trial court must set reasonable limitations on the parent’s responsibility for postminority education support, because a failure to do so may impose an undue hardship on the paying parent.”). However, this court has held that “the principles of Ex parte Bayliss ... do not generally apply in the context of a parent’s contractual undertaking to provide postmi-nority support to minor children that is incorporated into a binding judgment.” Thomas v. Campbell, 960 So.2d 694, 697 (Ala.Civ.App.2006). Thus, the mere fact that, pursuant to the agreements incorporated into the divorce judgment and the modification judgment, the child could have attended any college, for any length of time, earning below-average grades, does not make the agreements' ambiguous.

The trial court found that the modification judgment contained a latent ambiguity, i.e., an ambiguity “that 'appear[s] only as the result of extrinsic or collateral evidence showing that a word, thought to have but one meaning, actually has two or more meanings.’ ” Meyer v. Meyer, 952 So.2d 384, 392 (Ala.Civ.App.2006) (quoting 11 Richard A. Lord, Williston on Contracts § 33:40 at 816 (4th ed.2003)). Most of the evidence presented at the ore tenus hearings revolved around the meaning of the term “consult” in paragraph five of the modification judgment. The definitions of the term “consult” in Merriam-Webster’s Collegiate Dictionary 268 (11 ed.2003) include: “to have regard to”; “to ask the advice or opinion of’; “to refer to”; and “to deliberate together.” During the ore tenus hearings, the former husband repeatedly expressed that his interpretation of the term “consult” meant that he had to approve of the child’s college plans before he was legally obligated to pay his pro rata share of the child’s college expenses. Although paragraph four of the modification judgment requires the former husband’s approval of the child’s pre-high-school-graduation college expenses before he was required to contribute to those expenses, using the ordinary meaning of the term “consult,” there is no way to construe paragraph five as requiring the former husband’s approval of the child’s college plans before he was liable for his pro rata share of the child’s college expenses.

The record indicates that the former wife interpreted the term “consult” as requiring her and the child to keep the former husband aware of the child’s college-application process, college acceptances, and, eventually, her final decision. Although the record supports the conclusion that the former husband and the former wife had different interpretations of the word “consult,” such a conclusion does not render paragraph five of the modification judgment latently ambiguous. See Twin City Fire Ins. Co. v. Alfa Mut. Ins. Co., 817 So.2d 687, 692 (Ala.2001) (“The fact that the parties interpret the insurance policy[, which is governed by the rules of contracts,] differently does not make the insurance policy ambiguous.”); and Wayne J. Griffin Elec., Inc. v. Dunn Constr. Co., 622 So.2d 314, 317 (Ala.1993) (“The mere fact that the parties argue different constructions of the document does not force the conclusion that the disputed language is ambiguous.”). Accordingly, we cannot conclude that paragraph five of the modification judgment contains a latent ambiguity-

II. Payment of Postminority-Child-Support Arrears

The former husband argues that the trial court erred by requiring him to pay 87% of the college expenses incurred by the child at the University of Texas from the fall 2009 semester through the time of the entry of the final judgment, i.e., the end of the fall 2010 semester, because, he asserts, such an order is financially oppressive and constitutes a financial hardship. In support of his argument, the former husband cites Thrasher v. Wilburn, 574 So.2d 839 (Ala.Civ.App.1990) (holding that, pursuant to Ex parte Bay-liss, when determining whether the parent should provide financial assistance to an adult child for college expenses, a trial court should consider whether the parent has sufficient estate, earning capacity, or income to provide financial assistance without undue hardship), and Eastis v. Bredehoft, 599 So.2d 58 (Ala.Civ.App.1992) (reversing an award of postminority support pursuant to Ex parte Bayliss because the judgment failed to set reasonable limitations on the father’s postminority-sup-port obligation). Both Thrasher and Eas-tis are distinguishable from the present case because they involve an initial award of postminority-educational support pursuant to Ex parte Bayliss. As we have already explained, the former husband failed to negotiate limitations on his obligation of postminority support in either the divorce judgment or the modification judgment — both which incorporated an agreement of the parties.

In violation of Rule 28(a)(10), Ala. R.App. P., the former husband fails to cite any authority to support a conclusion that the trial court erred by enforcing the plain terms of the agreements incorporated into the divorce judgment and the modification judgment and by declining to make the modification of his postminority-educational-support obligation retroactive to the date he filed his petition to modify that obligation. See generally Simpkins v. Simpkins, 595 So.2d 493 (Ala.Civ.App.1991) (when an agreement incorporated into the parties’ divorce judgment did not place any limitations of the father’s obligation to pay the daughter’s college expenses and otherwise did not require the father’s approval of the child’s choice of college and the father, based on his daughter’s choice of an expensive out-of-state college, failed to pay the full amount of college expenses that he had agreed to pay, this court affirmed a trial court’s judgment that ordered the father to pay postminority-educational-support arrears); Frasemer v. Frasemer, 578 So.2d 1346, 1349 (Ala.Civ.App.1991) (“Where the obligated parent has failed to make child support payments because of financial inability to do so, the trial court may properly find the parent not in contempt, ... but the trial court may not ‘forgive’ or set aside the accrued arrearage.”); but see Warren v. Warren, 94 So.3d 392, 395-96 (Ala.Civ.App.2012) (noting that any modification made to an award of postminority support may be made retroactive to the date that the petition to modify was filed). Accordingly, we will not address this argument further. See Asam v. Devereaux, 686 So.2d 1222, 1224 (Ala.Civ.App.1996) (holding that “[inapplicable general propositions are not supporting authority” and that an appellate court “will address only those issues properly presented and for which supporting authority has been cited” (emphasis added)). Therefore, we affirm the trial court’s judgment insofar as it ordered the former husband to pay post-minority-support arrears.

III. Modification of the Former Husband’s Postminority-Educational-Support Obligation

The former wife contends that the trial court erred by modifying the terms of the former husband’s postminority-educational-support obligation based on a conclusion that the modification judgment contained a latent ambiguity. We agree. It is evident from our review of the record and the trial court’s judgment that the trial court’s basis for modifying the former husband’s postminority-educational-support obligation was its conclusion that paragraph five of the parties’ agreement incorporated into the modification judgment contained a latent ambiguity. Although we have concluded that paragraph five did not contain a latent ambiguity, even if we had determined that paragraph five contained a latent ambiguity, the existence of a latent ambiguity is not a valid basis for modifying the terms of an agreement. The presence of a latent ambiguity in an agreement allows a trial court only to look beyond the four corners of the agreement in an effort to interpret the agreement. See Judge v. Judge, 14 So.3d 162, 165-66 (Ala.Civ.App.2009) (citing Martin v. First Nat’l Bank of Mobile, 412 So.2d 250, 253 (Ala.1982)). Accordingly, we conclude that the trial court erred as a matter of law by modifying the former husband’s postminority-educational-sup-port obligation based on its conclusion that the modification judgment contained a latent ambiguity.

The former wife also argues that the trial court could not have modified the former husband’s postminority-edueational-support obligation based on a finding that there had been a material change in circumstances because, she argues, there was insufficient evidence to support such a finding. A finding of a material change in circumstances since the entry of the modification judgment is a valid legal basis for modifying the former husband’s postmi-nority-educational-support obligation. Although this court may affirm a trial court’s judgment on any valid legal ground presented by the record, even if it has not been considered by the trial court, see Liberty Nat’l Life Ins. Co. v. University of Alabama Health Servs. Found., P.C., 881 So.2d 1013, 1020 (Ala.2003), we cannot conclude that the former husband demonstrated, as a matter of law, that there had been a material change in circumstances since the entry of the modification judgment.

Furthermore, we cannot determine, from our review of the record, whether the trial court considered the former husband’s argument that there had been a material change in circumstances and rejected that argument because there was insufficient evidence or if the trial court failed to consider that argument after it determined that the former husband’s postminority-educational-support obligation was due to be modified based on the purported existence of a latent ambiguity. A determination of the existence of a material change in circumstances requires findings of fact that can be made only by a trial court. See J.C. v. State Dep’t of Human Res., 986 So.2d 1172,1184 (Ala.Civ.App.2007) (“[Ajppellate courts in this state generally do not review evidence in order to make factual conclusions; instead, they review judgments in order to determine whether the trial court committed reversible error. Because our appellate courts do not act as fact-finders, they do not utilize standards of proof but, instead, apply standards of appellate review.”). Accordingly, we reverse the trial court’s judgment, insofar as it modified the former husband’s postminority-support obligation on the ground that a latent ambiguity existed in the modification judgment, and we remand the cause with instructions to the trial court to enter a judgment specifically ruling on the former husband’s request to modify his postminority-edu-cational-support obligation based on a material change in circumstances since the entry of the modification judgment.

IV. Limitations on the Former Husband’s Prospective Postminority-Support Obligation

The former husband also argues that the trial court erred by failing to set reasonable limitations on his prospective post-minority-support obligation once the trial court modified his obligation. In light of our conclusion in Part III of this opinion, we pretermit discussion of this issue.

V. Attorney Fees

The husband argues that the trial court erred by ordering him to contribute $1,000 toward the former wife’s attorney’s fees because the trial court did not hold him in contempt for violating the divorce judgment or the modification judgment. See Sosebee v. Sosebee, 896 So.2d 557, 564 (Ala.Civ.App.2004) (“We agree that § 30-2-54[, Ala.Code 1975,] precludes the award of an attorney fee to the petitioner in a contempt action when the trial court fails to make a finding of contempt against the defending party.”). It is undisputed by the parties in their briefs on appeal that the trial court determined that the former husband was not in contempt. The former husband further argues that the trial court had no other grounds for awarding the former wife an attorney fee.

However, the former wife argues that, despite the fact the trial court did not find the former husband in contempt, she was entitled to an award of attorney fees because paragraph 10 of the divorce judgment, quoted above, required the trial court to award her attorney fees. See State Dep’t of Human Res. v. Estate of Harris, 857 So.2d 818, 820 (Ala.Civ.App.2002) (in Alabama, an attorney fee may be recovered if a fee is allowed by statute, by the terms of a contract, or by a special equity). To determine whether the trial court appropriately awarded to the former wife a portion of her attorney fees, and to determine whether the trial court erred by failing to award the former wife a greater award of attorney fees, we must determine whether paragraph 10 of the divorce judgment allows an award of attorney fees without a specific finding that the former husband was in contempt.

Paragraph 10 provides that the former wife “shall be entitled to reimbursement of ... her attorney’s fees and other costs” if the former husband “fail[ed] to abide by the terms of [the] agreement [incorporated into the divorce judgment] or [if] he [took] some action which amount[ed] to contempt of court, and it [became] necessary for the [former wife] to seek the relief of the court to enforce ... her rights under this agreement. ...” (Emphasis added.) It is clear that the trial court determined that the former husband had “fail[ed] to abide by the terms of [the] agreement” incorporated into the parties’ divorce judgment. The plain terms of the divorce judgment required the former husband to contribute a pro rata share of the child’s college expenses, without limitation. It is undisputed that the former husband did not do so. Because paragraph 10 uses the conjunction “or,” the agreement does not require the former husband to, in addition to failing to abide by the terms of the agreement, “take some action which amounts to a contempt.” Furthermore, because paragraph 10 of the divorce judgment then uses the conjunction “and,” the former wife would be entitled to reimbursement of her attorney fees and costs only if “it became necessary for the [former wife] to seek the relief of the court to enforce ... her rights under the agreement.” The record clearly demonstrates that the former wife was required to hire an attorney and seek relief in the trial court as a result of the former husband’s failure to abide by the plain terms of the parties’ agreement as incorporated into the divorce judgment. Accordingly, we conclude that the plain language of paragraph 10 does not require that the trial court find the former husband in contempt before the former wife is “entitled to reimbursement of ... her attorney’s fees and other costs.”

In her cross-appeal, the former wife argues that the trial court erred by failing to award her a greater amount of attorney fees. We agree. The former wife presented evidence indicating that she had incurred attorney fees totaling $18,213.97. Although the trial court could have concluded that only a portion of the attorney fees incurred by the former wife were based on the former wife’s attempt to enforce the terms of the agreement incorporated into the divorce judgment, we cannot conclude that it was reasonable to determine that the former wife’s attorney fees related to her enforcement action amount to only $1,000 when more than $18,000 in attorney fees were incurred. Accordingly, we reverse the trial court’s judgment insofar as it awarded the wife an attorney fee in the amount of $1,000, and we remand the cause with instructions to the trial court to determine a more reasonable award of attorney fees based on the plain language of paragraph 10 of the agreement incorporated into the parties’ divorce judgment.

Conclusion

The trial court’s judgment is reversed insofar as it prospectively modified the former husband’s postminority-educational-support obligation based on a finding of a latent ambiguity and insofar as it awarded the former wife an attorney fee in the amount of $1,000. The cause is remanded with instructions to the trial court to enter a judgment consistent with this opinion. The trial court’s judgment, in all other respects, is affirmed.

The former wife’s request for an attorney fee on appeal is granted in the amount of $1,500.

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

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

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

      . The former wife subsequently filed two amended petitions seeking to hold the former husband in contempt for various violations of the trial court's previous judgments. However, those issues were resolved and are not pertinent to the issues raised on appeal.

      . For purposes of comparison, we note that a patent ambiguity is 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 at 391.

      . Although the parties' agreement does not specifically limit the award of attorney fees recoverable by the former wife to a "reasonable” amount, "Alabama law reads into every agreement allowing for the recovery of attorney’s fees a reasonableness limitation.” Willow Lake Residential Ass’n, Inc. v. Juliano, 80 So.3d 226, 241 (Ala.Civ.App.2010) (quoting Alabama Educ. Ass'n v. Black, 752 So.2d 514, 519 (Ala.Civ.App.1999)) ("'In Alabama, where there is an agreement to pay an attorney fee and the agreement does not speak specifically to the reasonableness of the fee, a "reasonable” fee will be inferred.’ ”).