author: MURDOCK, Justice.

text:
    Ex parte BURR & FORMAN, LLP. (In re A. Dwight Blair et al. v. Burr & Forman, LLP).
    1060801.
    Supreme Court of Alabama.
    Sept. 12, 2008.

      William J. Baxley and Joel E. Dillard of Baxley, Dillard, Dauphin, McKnight & Barclift, Birmingham, for petitioner.
    Bruce F. Rogers, Charles K. Hamilton, and Rebecca C. Eubanks of Bainbridge, Mims, Rogers & Smith, LLP, Birmingham, for respondents.
   MURDOCK, Justice.

Burr & Forman, LLP, petitions this Court for a writ of mandamus ordering the St. Clair Circuit Court to dismiss the underlying action or, in the alternative, to transfer it to the Jefferson Circuit Court. For the reasons stated herein, we grant the petition.

I. Background

This mandamus petition arises from an action filed in the St. Clair Circuit Court by A. Dwight Blair, William Trussed, and their law firms, respectively, Blair and Parsons, P.C., and Trussell & Funderburg, P.C. (collectively referred to herein as “Blair and Trussed”), against the law firm of Burr & Forman, LLP. In their action, Blair and Trussed alleged that Burr & Forman violated an agreement into which the parties had entered in 1994 (“the 1994 agreement”) whereby they associated one another and agreed to share attorney fees in certain cases relating to the alleged release of contaminants into the environment by Monsanto Company (“Monsanto”).

At the time the parties entered into the 1994 agreement, which was memorialized in a letter from Blair to Frank Davis (a partner at Burr & Forman at the time), there were two pending lawsuits related to alleged discharges by Monsanto in which the parties were serving as counsel, Dyer v. Monsanto Corp. and Shelter Cove Management v. Monsanto Corp. Blair’s letter stated:

“The purpose of this letter is to confirm our agreement to associate each other in the [Dyer and Shelter Cove ] actions and in all other claims which each firm may pursue or handle arising out of the actions of Monsanto and all other parties responsible for the placing of PCBs [polychlorinated biphenyls] and other contaminants in the waterways of Snow Creek, Choccolocco Creek and Lake Logan Martin.
“1. Fees and Expenses
“Any attorneys fees obtained in either of the above actions or in any other claims or lawsuits which may be pursued by either firm (including but not limited to claims for business loss and/or personal injury arising out of Monsanto’s or others’ conduct in placing PCBs and other contaminants in Snow Creek, Chocco-locco Creek and Lake Logan Martin, whether such claims are asserted in a class action or are asserted on an individual basis) will be divided as follows: 60% to Burr & Forman, 20% to my firm and 20% to Trussell & Funderburg. Expenses will be paid on a similar basis: Burr & Forman will pay 60% of expenses, my firm will pay 20% of expenses and Trussell & Funderburg will pay 20% of expenses; however, neither my firm nor Bill’s firm will be required to pay more than $20,000 (each) of the expenses. Frank will furnish Bill and me an itemized list of expenses before we are called upon to pay our share and any anticipated expense of more than $1,000.00 will be discussed by Frank and Bill and me and will be agreed to by Bill and me prior to the incurring of such expense (e.g., the hiring of experts).
“2. Procedural Matters
“Before the certification hearing, I will file a conditional motion to dismiss, without prejudice, all of the parties in the Shelter Cove action, except Harris, and will dismiss, without prejudice, all claims for business loss. This motion will be conditioned upon the Court’s certifying The Class of property owners whose property has been devalued and whose riparian rights have been adversely affected by the wrongful conduct of Monsanto, etc. You would then file an appearance for Harris.
“Before the certification hearing, Frank and Bill will file a conditional motion to dismiss, without prejudice, all of the parties in the Dyer action, except those three, four or five who you decide will remain as Class representatives, and except those parties presently named who have personal injury or loss of income claims. I will then file an appearance for those Class representatives, as well as the remaining parties who have personal injury or loss of income claims.
“The three of us will file a joint motion to consolidate the two cases for all purposes.
“If this does not represent your understanding of the agreement, please let me know immediately.”

The Dyer and Shelter Cove actions were settled in June 1999.

In May 2001, attorney Richard Roden and Burr & Forman, acting as cocounsel, sued Monsanto in the United States District Court for the Northern District of Alabama on behalf of 3,000 plaintiffs based on personal injuries and property damage allegedly caused by Monsanto’s release of contaminants into certain waterways (“the Tolbert litigation”). Blair and Trussell were not associated as counsel in that action. In January 2003, Davis and John Norris, another partner at Burr & For-man, left Burr & Forman and formed the law firm of Davis and Norris LLP (Davis, Norris, and their law firm are collectively referred to hereinafter as “Davis and Norris”). Davis and Norris were retained to represent the same clients in the Tolbert litigation they had been representing while they were partners at Burr & Forman.

The Tolbert litigation ended in September 2008 with a settlement agreement between the parties that was incorporated into a final judgment by the federal district court. The settlement proceeds and attorney fees generated by the Tolbert litigation were placed in a settlement fund under the supervision of the federal district court.

On October 17, 2003, Davis and Norris filed a complaint in the Jefferson Circuit Court against Burr & Forman and Blair and Trussell (“the Jefferson County action”), seeking a judgment declaring the appropriate distribution of the attorney fees generated by the Tolbert litigation. Through their complaint, they sought “a declaration as to whether Blair, Trussell or their respective law firms have any right or entitlement to part of the fees paid for representation of the clients in Tolbert.” They also sought

“a declaration of the rights of Davis, Norris and their new law firm, known as Davis and Norris LLP, regarding representation of clients in contingent fee matters that began while they were partners at Burr [& Forman], but whom they continued to represent after their withdrawal from Burr [& Forman], including but not limited to, the work they performed in Tolbert.”

On October 30, 2003, Blair and Trussell filed a complaint against Burr & Forman in the St. Clair Circuit Court (“the St. Clair County action”). In count one of their complaint in the St. Clair County action, they sought “a declaratory judgment that they are entitled to a total of forty percent (40%) of any attorneys’ fee awarded to the defendant, based upon the 1994 Agreement,” an injunction giving effect to the requested declaration, and an injunction prohibiting Burr & Forman “from spending or disbursing any attorneys’ fees awarded in the Tolbert matter” until the St. Clair County action was concluded. In count two, they sought damages for breach of the 1994 agreement.

On November 4, 2003, Blair and Trussell filed in the Jefferson County action a motion to sever the claims against them and then to dismiss those claims or, in the alternative, to transfer a portion of that action to St. Clair County. They argued that the interpretation of the 1994 agreement, which was between them and Burr & Forman, had nothing to do with the dispute between Burr & Forman and Davis and Norris. They asserted that Davis and Norris’s dispute with Burr & Forman was pending in the federal court in the Tolbert litigation before the Jefferson County action was filed, and, in that dispute, there was no mention of the 1994 agreement. The absence in the federal dispute of any issue regarding the 1994 agreement was further proof, according to Blair and Trussell, that the claims in the Jefferson County action related to the 1994 agreement were due to be severed from that action. Blair and Trussell argued that, upon severance, the claims related to the 1994 agreement should be transferred to St. Clair County, where Blair and Trussell resided and where, they contended, the “events leading to the 1994 agreement” occurred. The Jefferson Circuit Court denied Blair and Trussell’s motion.

On November 25, 2003, Burr & Forman removed the St. Clair County action and the Jefferson County action to the United States District Court for the Northern District of Alabama. The federal district court consolidated those actions with the Tolbert litigation on the ground that they presented issues pending before the court in Tolbert. On December 11, 2003, Burr & Forman filed an answer in the St. Clair County action in the federal court. On July 7, 2004, the federal district court remanded the St. Clair County action and the Jefferson County action.

On July 20, 2004, Burr & Forman filed its first amended answer, counterclaim, and cross-claim in the Jefferson County action. In its cross-claim, which was directed at Blair and Trussell, Burr & For-man argued that, because Blair and Trus-sell did not perform any legal services in the Tolbert litigation, they were barred, “legally and ethically,” from receiving any fees generated in that litigation. It also contended that Blair and Trussell could not recover on the 1994 agreement because, it argued, that agreement did not “cover, address or relate to the claims of the plaintiffs that were settled” in the Tol-bert litigation, and, even if it did, Davis had executed the 1994 agreement “without notice to, or approval by, Burr’s executive committee.”

On August 3, 2004, Burr & Forman filed a motion in the St. Clair County action to dismiss the action or to transfer the action to Jefferson County. It asserted that the St. Clair Circuit Court lacked jurisdiction over the action because the claims asserted therein were the subject of the Jefferson County action, which was the first-filed action. It also contended that, because Burr & Forman was a partnership, venue was proper only where one of its partners resided. Because none of its partners resided in St. Clair County, it argued, venue was not proper there. It further contended that the action should be dismissed because Blair and Trussell had failed to name as a defendant Davis, who, it contended, was an indispensable party. Finally, it contended that the St. Clair County action should be transferred to Jefferson County under the doctrine of forum non conveniens.

On August 16, 2004, Blair and Trussell responded to Burr & Forman’s motion, arguing that Burr & Forman had waived its venue and abatement arguments by failing to include them in the answer it filed in the federal court following removal of the St. Clair County action to the federal court and by failing to amend its answer to include those defenses. They also argued that Burr & Forman’s abatement defense did not apply in the St. Clair County action because, they said, the Jefferson County action did not implicate the 1994 agreement and because they could not be compelled to file a cross-claim against Burr & Forman in the Jefferson County action. They contended that venue was proper in St. Clair County because, they said, it was in that county that their cause of action arose. Finally, they argued that Davis was not an indispensable party to the St. Clair County action because, under Ala.Code 1975, § 6-7-70, a partnership can be sued without having to name the individual partners.

On August 20, 2004, Burr & Forman filed an amended answer in the St. Clair County action asserting that venue there was not proper, that the action was due to be abated due to the pending Jefferson County action, that Blair and Trussell had failed to name an indispensable party, and that the action was due to be transferred to Jefferson County on the basis of forum non conveniens.

On August 19, 2004, Burr & Forman and Davis and Norris filed a motion in the Tolbert litigation to distribute the undistributed attorney fees that had been awarded in that case. On August 25, the federal district court ordered Blair and Trussell to show cause why they should be entitled to a portion of the undistributed attorney fees. On September 22, 2004, Blair and Trussell filed an objection to, and a motion to vacate, the show-cause order. They also filed a response to the show-cause order in which they argued the merits of their position that they were entitled to a portion of the attorney fees awarded in the Tolbert litigation.

On September 27, 2004, Blair and Trussed filed a motion in the St. Clair County action to compel discovery responses from Burr & Forman. In particular, they sought an order from the court compelling Burr & Forman to respond to two document-production requests they had served on it in August 2004 and compelling Burr & Forman to submit to depositions they had requested in July and August 2004. On October 6, 2004, the St. Clair Circuit Court granted Blair and Trussell’s motion, requiring Burr & Forman to produce the requested documents by October 20, 2004, and to submit a representative of the firm and Robert Rutherford, an attorney with Burr & Forman, for depositions by October 27, 2004.

On October 18, 2004, the federal district court entered an order in the Tolbert litigation in which it determined that it had jurisdiction to decide the proper allocation of attorney fees generated by the Tolbert litigation and held that Blair and Trussed were not entitled to any of those fees. The federal court made this order final pursuant to Rule 54(b), Fed.R.Civ.P., and Blair and Trussed appealed the judgment to the United States Court of Appeals for the Eleventh Circuit.

On October 21, 2004, the St. Clair Circuit Court entered an order postponing ruling on Burr & Forman’s motion to dismiss or to transfer and allowing the parties an opportunity to conduct discovery on the issue of venue. It also determined that it had “sole and exclusive jurisdiction” over the dispute between Burr & Forman and Blair and Trussed and that the federal court’s October 18, 2004, order had no effect on that jurisdiction. The court stated that, “[t]o the extent the federal court order purports to adjudicate the parties’ claims and defenses already remanded to this Court for adjudication in this case, the Court respectfully disagrees with the conclusions of the federal court.”

On October 25, 2004, Burr & Forman removed the St. Clair County action to federal court a second time. Blair and Trussed moved the federal court to remand the case.

On November 2, 2004, the federal district court ordered that the undistributed attorney fees generated by the Tolbert litigation be distributed evenly between Burr & Forman and Davis and Norris.

On July 22, 2005, the federal district court remanded the St. Clair County action. In spite of this remand, the federal district court, on August 2, 2005, entered an order preliminarily enjoining Blair, Trussed, Davis, and Burr & Forman from participating in further litigation in the Jefferson County and St. Clair County actions pending resolution of Blair and Trussed’s appeal of its judgment against them on the merits of their attorney-fee claim. Blair and Trussed appealed this preliminary injunction to the United States Court of Appeals for the Eleventh Circuit, which consolidated the appeal with their previous appeal.

On November 27, 2006, the Eleventh Circuit Court of Appeals reversed the federal district court’s judgment denying Blair and Trussed’s attorney-fee claim and dissolved its preliminary injunction of August 2, 2005. Burr & Forman v. Blair, 470 F.3d 1019, 1022 (11th Cir.2006). The court found that when the federal district court remanded the St. Clair County action and the Jefferson County action to the state courts from which they had been removed, it thereby disavowed any jurisdiction over those actions. 470 F.3d at 1034-35. The court held that the federal district court’s disavowal of jurisdiction prevented it from subsequently exercising jurisdiction over Blair and Trussell’s claims in those actions. 470 F.3d at 1035. The court said: “Once the court remanded the case its power to adjudicate Blair and Trussell’s claim ceased.” 470 F.3d at 1036. The appeals court issued its mandate on December 26, 2006, dissolving the federal district court’s injunction of the state-court actions.

On December 27, 2006, Burr & Forman filed a supplemental brief in support of its motion to dismiss or to transfer in the St. Clair County action. It pointed out to the trial court that, after it had filed its original motion, this Court decided Ex parte Miller, Hamilton, Snider & Odom, LLC, 942 So.2d 334 (Ala.2006). In that case, this Court held that a limited-liability company that is treated as a partnership for federal income-tax purposes resides, for purposes of venue, where its individual partners reside. 942 So.2d at 336-37. Burr & Forman argued that this holding provided further support for its position that, because it was a partnership and none of its partners resided in St. Clair County, venue was not proper in the St. Clair Circuit Court.

Also on December 27, 2006, Burr & Forman filed in the Jefferson County action its first amended cross-claim against Blair and Trussell and a motion for a summary judgment.

On January 12, 2007, Blair and Trussell filed a “motion for default judgment and other sanctions for violation of court order and discovery abuses” against Burr & For-man in the St. Clair County action. They asserted that Burr & Forman never complied with the order of the St. Clair Circuit Court entered on October 6, 2004, compelling it to respond, by October 20, 2004, to the requests for production Blair and Trussell had served on it and compelling it to submit both a representative of the firm and Robert Rutherford for depositions by October 27, 2004. Citing Rule 37, Ala. R. Civ. P., Blair and Trussell requested that the St. Clair Circuit Court enter a default judgment against Burr & Forman or, in the alternative, enter an order denying Burr & Forman’s pending motion to dismiss or to transfer the action.

On February 2, 2007, the St. Clair Circuit Court entered the following order:

“This case comes before the Court on two separate but related motions: (1) [Burr & Formanj’s Motion to Dismiss or Abate for Lack of Jurisdiction and/or for Failure to Join Indispensable Parties, or in the Alternative, to Transfer on Forum Non-Conveniens Grounds, filed on August 3, 2004; and (2) [Blair and Trus-sellj’s Motion for Default Judgment and Other Sanctions for Violation of Court Order and Discovery Abuses, filed on January 12, 2007. The Court has carefully considered the parties’ written submissions concerning these motions, as well as the arguments of counsel during the hearing conducted on January 23, 2007. For the reasons discussed below, the Court finds that venue for this dispute is proper in St. Clair County, and therefore the case shall not be dismissed, abated, or transferred.
“This fee dispute has roots dating back to 1994, when the parties to this case, three law firms, served as co-counsel for the plaintiffs [in] certain class action lawsuits against Monsanto pending in St. Clair County, named the Dyer case, case number: CV-1993-250, and the Shelter Cove case, case number: CV-1994-50. [Blair and Trussell] contend that the law firms signed a letter agreement to join together in pursuing Dyer and Shelter Cove, and to associate each other and share fees in future cases against Monsanto for claims arising from alleged PCB contamination in Lake Logan Martin, which is situated in St. Clair County, and its tributaries, Snow Creek and Choccolocco Creek.
“In 2003, Defendant Burr & Forman negotiated a substantial fee award as part of another PCB case against Monsanto. [Blair and Trussell] contend they were never informed of that other case or of Burr & Forman’s involvement, and that disclosure would have been required by the duties and obligations of the parties arising from their 1994 letter agreement. The Complaint seeks damages by asserting claims for declaratory relief arising out of the letter agreement, including suppression and breach of fiduciary duty; and for breach of contract.
“Under Ala.Code [§ ]6-3-2(a)(3), venue is proper in St. Clair County because this dispute involves personal actions, and a substantial portion of the acts and omissions complained of occurred in St. Clair County. [Burr & Forman] also failed to assert its venue and abatement defenses in its original Answer to the Complaint filed in December 2003, and [Burr & Forman] did not amend its Answer to assert venue or abatement defenses until after [Blair and Trussell] first had pointed out (in a brief to this Court) [Burr & Fórmanos failure to properly and timely raise these defenses.
“It is therefore ORDERED, ADJUDGED AND DECREED that [Burr & Forman]’s Motion to Dismiss or Abate for Lack of Jurisdiction and/or for Failure to Join Indispensable Parties, or in the Alternative, to Transfer on Forum Non-Conveniens Grounds is hereby DENIED. Except to the extent [Burr & Fonnanjs venue and abatement objections are overruled, in all other respects [Blair and Trussell]’s Motion for Default Judgment and Other Sanctions for Violation of Court Order and Discovery Abuses is hereby Denied.

This case is now before this Court on Burr & Forman’s petition seeking a writ of mandamus. The petition asks this Court to vacate the February 2, 2007, order of the St. Clair Circuit Court denying Burr & Forman’s motion to dismiss the St. Clair County action or to transfer it to Jefferson County on the ground that venue in St. Clair County is improper and to order that court either to dismiss that action or to transfer it to the Jefferson Circuit Court. Among other things, the parties also address in their filings, in this Court the issue whether either the Jefferson County action or the St. Clair County action should be abated because of the pendency of the other.

On June 6, 2007, after the parties had filed their briefs with this Court, Blair and Trussell filed a motion to supplement their answer to the petition with a copy of an order entered in the Jefferson Circuit Court on June 1, 2007. We hereby grant that motion. In that order, the Jefferson Circuit Court dismissed Burr & Forman’s cross-claim against Blair and Trussell, holding that at the time Burr & Forman filed its cross-claim against Blair and Trus-sell in the Jefferson County action, Blair and Trussell had already filed their complaint in the St. Clam County action “involving the same subject matter and ... the same parties” as Burr & Forman’s cross-claim. The court held that because the St. Clair County action was pending before the cross-claim was filed in the Jefferson County action, Burr & Forman was barred from filing its claim against Blair and Trussell in the Jefferson County action; instead, Burr & Forman was required by Rule 13(a), Ala. R. Civ. P., and Ala.Code 1975, § 6-5-440, to file its claim as a compulsory counterclaim in the St. Clair County action.

II. Standard of Review

Mandamus is an extraordinary remedy, requiring “a showing that 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 Inverness Constr. Co., 775 So.2d 153, 156 (Ala.2000) (quoting Ex parte Edgar, 543 So.2d 682, 684 (Ala.1989)). A trial court’s denial of a motion to transfer based on improper venue is reviewable by a petition for writ of mandamus, and “such a petition is due to be granted if the petitioner makes a clear showing of error on the part of the trial court.” Ex parte Alabama Power Co., 640 So.2d 921, 922 (Ala.1994).

III. The Venue Defense

A. The Merits of the Venue Defense.

Burr & Forman contends that venue in St. Clair County is improper. As it argued to the trial court, Burr & Forman argues to this Court that, because it is a partnership and because Blair and Trussell’s claims are contractual in nature, venue for Blair and Trussell’s claims is proper only in a county in which one of its partners reside. According to Burr & Forman, because none of its partners reside in St. Clair County, venue is not proper there.

Blair and Trussell respond that their complaint asserted claims sounding in tort, not just in contract. They contend that the acts complained of occurred in St. Clair County and that, therefore, venue is proper in that county.

The statute governing venue for individuals, § 6-3-2, Ala.Code 1975, also governs venue for partnerships. For purposes of venue, a partnership is deemed to reside where its partners reside. See Ex parte Miller, Hamilton, Snider & Odom, LLC, supra. Section 6-3-2 provides, in relevant part:

“(a) In proceedings of a legal nature against individuals:
“(2) All actions on contracts, except as may be otherwise provided, must be commenced in the county in which the defendant or one of the defendants resides if such defendant has within the state a permanent residence.
“(3) All other personal actions, if the defendant or one of the defendants has within the state a permanent residence, may be commenced in the county of such residence or in the county in which the act or omission complained of may have been done or may have occurred.
“(b) In proceedings of an equitable nature against individuals:
“(3) Except as may be otherwise provided, actions must be commenced in the county in which the defendant or a material defendant resides.”

Because, under the above-quoted statute, venue is determined based on whether the claims asserted are contractual or “personal,” i.e., sounding in tort, we must review Blair and Trussell’s complaint in the St. Clair County action to determine the nature of their claims against Burr & Forman.

As previously noted, the trial court stated in its order that “[t]he Complaint seeks damages by asserting claims for declaratory relief arising out of the 1994 letter agreement, including suppression and breach of fiduciary duty; and for breach of contract.” However, allegations of suppression and breach of fiduciary duty do not appear on the face of the complaint. The trial court tacitly recognized as much in footnote 1 of its order, in which it attempted to buttress the aforesaid statement as to the types of actions alleged in the complaint. In that footnote, the trial court correctly noted that Rule 8, Ala. R. Civ. P., implemented modern rules of notice pleading. It went on to state, however, that “the comments to the rule recognize that there is no technical pleading requirement other than describing in general the events that transpired, coupled with a demand for judgment.” This latter statement is not correct. As we stated in Archie v. Enterprise Hospital & Nursing Home, 508 So.2d 693, 696 (Ala.1987): “Although the Alabama Rules of Civil Procedure have established notice pleading, see Rule 8, a pleading must give fair notice of the claim against which the defendant is called to defend.” (Emphasis added.) Moreover, “[i]t is not the duty of the courts to create a claim which the plaintiff has not spelled out in the pleadings.” McCullough v. Alabama By-Prods. Corp., 343 So.2d 508, 510 (Ala.1977).

The complaint filed by Blair and Trussed in the St. Clair County action begins with eight numbered paragraphs by which Blair and Trussed plead background facts and describe the general nature of their claims. Paragraph number “1” of the complaint reads as follows:

“1. This is a complaint for declaratory and injunctive relief and breach of contract, based on and arising from an agreement among the parties to associate each other and share any attorneys’ fees obtained through litigation against Monsanto Corporation for the placement of PCB’s and other contaminants in the water systems.”

(Emphasis added.)

The claims for relief that follow the eight numbered paragraphs in the complaint comprise two counts. “Count One” is titled “Request for Declaratory Judgment and Injunctive Relief.” It consists of paragraph number “9” and a prayer for relief. Paragraph number 9 reads in its entirety as follows:

“9. Pursuant to the Alabama Declaratory Judgment Act, Ala.Code § 6-6-222, [Blair and Trussell] seek a declaration of the parties’ rights and obligations with respect to the 199k Agreement and the settlement of the Tolbert matter. Specifically, [Blair and Trussell] seek a declaratory judgment that they are entitled to a total of forty percent (40%) of any attorneys’ fee awarded to [Burr & Forman], based upon the 199U Agreement..”

(Emphasis added.)

“Count Two” is titled “Breach of Contract.” (Emphasis added.) It consists only of paragraph number “10” and a prayer for relief. Paragraph number 10 reads in its entirety as follows: “In violation of the 1991 Agreement, [Burr & For-man] has refused and failed to pay [Blair and Trussell] any portion of the attorneys’ fee award from the Tolbert litigation.” (Emphasis added.)

Even under notice pleading, the allegations of the complaint simply cannot be construed as asserting claims sounding in tort. To the contrary, Blair and Trus-sell’s complaint makes clear that the nature of the claims they assert is contractual. Count one essentially seeks nothing more than specific performance on the 1994 agreement. Count two explicitly seeks damages for the alleged breach of the 1994 agreement.

The trial court sought to buttress its conclusion that the complaint included tort claims by stating that “this Court’s review of the voluminous record in this case establishes that tort claims are at issue here arising from the parties’ fee sharing association.” The trial court’s purported use of the record in this case to determine what claims were being asserted by the plaintiffs was inappropriate; we see no basis for the trial court to have gone outside the complaint to determine what Blair and Trussell have pleaded. See Archie, 508 So.2d at 696; McCullough, 343 So.2d at 510. Although it is true that parties may try by implied consent a claim that has not been pleaded, see Rule 15(b), Ala. R. Civ. P., here there has been no trial. We are aware of no rule or other authority authorizing a trial court to read into a complaint allegations of unpleaded claims merely because the court sees material in the pretrial record upon which such claims could be based.

Although Blair and Trussell may believe that Burr & Forman breached a fiduciary duty it owed them or suppressed certain facts, they do not seek, through their complaint, to obtain a remedy for those alleged torts. Indeed, neither the word “suppression” nor the words “fiduciary duty” nor any other words of similar import appear anywhere in the complaint — not even in the background facts. The complaint simply fails to give fair notice that any claims other than those asserting breach of contract are being pursued.

Because Blair and Trussell’s claims are based on the 1994 agreement and sound in contract, venue for their action is proper, under § 6-3-2, only in a county in which a partner of Burr & Forman resides. In support of their motion, Burr & Forman established that none of its partners resides in St. Clair County. Thus, venue for the St. Clair County action is not proper in St. Clair County.

B. Other Issues Related to Venue.

In its order denying Burr & For-man’s motion for a change of venue, the St. Clair Circuit Court held that Burr & For-man waived its defense of improper venue because it did not assert that defense in its original answer and because it did not amend its answer to assert that defense until Blair and Trussell first pointed out that failure to the trial court. The trial court’s holding is in error in both respects.

Rule 12, Ala. R. Civ. P., and, for purposes of this case particularly Rules 12(b) and 12(h)(1), governs “when” and “how” a defense such as improper venue is to be asserted. As a preliminary matter, we summarily dispense with the suggestion in the trial court’s order that anything in Rule 12 forecloses the assertion of a defense merely because the plaintiff “first point[s] out” to the trial court a defendant’s failure to have theretofore asserted that defense. Nothing in Rule 12 does so.

What Rule 12, specifically Rule 12(b), does require is that “[e]very defense ... be asserted in the responsive pleading thereto if one is required.” As an exception to this general requirement, Rule 12(b) provides, that certain defenses, in-eluding improper venue, may be made by motion. Even without the benefit of this exception, the answer filed by Burr & Forman following the removal of the St. Clair County action to federal court cannot be found lacking for failure to assert the improper-venue defense at issue here. That defense — that § 6-3-2 prevented Blair and Trussell from bringing their contract action in St. Clair County — was inap-posite to an action in a federal court. We see nothing in Rule 12 that would operate to penalize a defendant for failing to raise in an answer filed in an action removed to federal court a state-law, procedural defense that would be available to the defendant only if the case were pending in state court.

The defense of improper venue under § 6-3-2 did, of course, become available to Burr & Forman following the remand of the St. Clair County action to state court on July 7, 2004. It thereafter became incumbent upon Burr & Forman, if it wished to avoid waiving that defense, to assert it in a motion as contemplated by Rule 12(b) and by Rule 12(g) (requiring the consolidation in a motion filed under Rule 12 of all defenses then available which Rule 12 permits to be made by motion) or in an amendment to its answer. Burr & Forman asserted the defense both in a motion and in an amendment to its answer.

Rule 12(h)(1) provides that a defense of improper venue is waived under two circumstances:

“(A) if omitted from a motion in the circumstances described in subdivision (g), or (B) if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course.”

The motion made by Burr & Forman on August B, 2004, was the first motion it had made in response to the complaint; the defense of improper venue was asserted in that motion. Clause (A) of Rule 12(h)(1) therefore is not applicable because the defense was not “omitted from a motion in the circumstances described in subdivision (g).” By the same token, clause (B) is not applicable because, obviously, the defense was in fact “made by motion under this rule.” For that matter, it also was “included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course” when Burr & Forman amended its answer on August 20. Therefore, there is no basis on which to conclude that Burr & Forman waived the defense of improper venue.

Blair and Trussed also contend that the trial court’s rejection of Burr & Forman’s improper-venue defense was a discovery sanction that the trial court was within its discretion to impose. They base this argument on the final two sentences of the trial court’s February 2, 2007, order:

“It is therefore ORDERED, ADJUDGED AND DECREED that [Burr & Formanj’s Motion to Dismiss or Abate for Lack of Jurisdiction and/or for Failure to Join Indispensable Parties, or in the Alternative, to Transfer on Forum Non-Conveniens Grounds is hereby DENIED. Except to the extent [Burr & Formanj’s venue and abatement objections are overruled, in all other respects [Blair and Trussellj’s Motion for Default Judgment and Other Sanctions for Violation of Court Order and Discovery Abuses is hereby Denied.”

In determining the intent of a trial court’s order, this Court considers the trial court’s entire writing. E.g., Boykin v. Law, 946 So.2d 838, 848 (Ala.2006). In the present case, the trial court spent the bulk of its order discussing the merits of Burr & Forman’s motion. As to those merits, the court specifically and expressly found that venue was proper in St. Clair County and that it was for this reason that Burr & Forman’s objection to venue was “overruled”: “venue for this dispute is proper in St. Clair County, and therefore the case shall not be dismissed, abated, or transferred.” Further, the trial court went on to expressly and specifically discuss its conclusion that Burr & Forman had waived its improper-venue defense, clearly indicating in its order that this provided a supplemental basis for its decision to “overrule” Burr & Forman’s objections to venue in St. Clair County. At no point in its order does the trial court discuss Blair and Trussell’s request for discovery sanctions.

We take note of the juxtapositional wording found in the latter of the two sentences of the trial court’s order relied upon by Blair and Trussed. In the context of the entire order, however, we cannot conclude merely on the basis of that language that the trial court “overruled” Burr & Forman’s objection to venue as a sanction for a discovery transgression. We reject Blair and Trussell’s argument to the contrary.

IV. Conclusion

Based on the foregoing, we grant the petition. The trial court is ordered to vacate its February 2, 2007, order denying Burr & Forman’s motion to dismiss or to transfer the St. Clair County action to the Jefferson Circuit Court, and to enter an order either dismissing the St. Clair County action or transferring that action to the Jefferson Circuit Court. Because of our disposition of the venue issue, we need not reach the separate issue presented by this petition — whether the pendency of either the Jefferson County action or the St. Clair County action is cause for the abatement of the other.

RESPONDENTS’ MOTION TO SUPPLEMENT THE RECORD GRANTED; PETITION GRANTED; WRIT ISSUED.

COBB, C.J., and LYONS and STUART, JJ., concur.

BOLIN, J., concurs in the result.

      “1 Rule 8 of the Alabama Rules of Civil Procedure implemented modern rules of notice pleadings, and the comments to the rule recognize that there is no technical pleading requirement other than describing in general the events that transpired, coupled with a demand for judgment. As a result, this Court’s review of the voluminous record in this case establishes that tort claims are at issue here arising from the parties’ fee sharing association. In addition to references in the Complaint, the underlying claims of suppression and breach of fiduciary duty were also discussed at length in the record in connection with [Blair and Trussell’s] Response to Show Cause Order filed in Federal Court in 2004.”

      . Burr & Forman opposed the motion to supplement, arguing that the Jefferson Circuit Court’s order did not impact the merits of its mandamus petition.

      . The fact that Burr & Forman is a limited-liability partnership does not change its treatment as a partnership for venue purposes. See § 10-8A-1001(i), Ala.Code 1975 (“Apart-nership that has registered as a registered limited liability partnership is for all purposes, except as provided in Section 10-8A-306, the same entity that existed before the registration and continues to be a partnership under the laws of this state subject to the registered limited liability partnership provisions of this chapter.”).

      . We find fault not with the allegations of the complaint, but with the manner in which the trial court construed those allegations. The complaint appears to be appropriately drafted to assert the contractual claims it intended to assert.

      . In its brief to this Court, Burr & Forman recount the numerous times in “their Eleventh Circuit briefing [in which Blair and Trussell] describe their claims in the St. Clair County complaint ... as breach of contract claims.” In its opinion, the Eleventh Circuit Court of Appeals referred to the St. Clair action as a "run-of-the-mill contract action.” Burr & Forman v. Blair, 470 F.3d at 1033.

      . We also note that other jurisdictions have held that, in an action that has been removed to federal court and subsequently remanded to state court, a defendant does not waive a defense by waiting until the action is remanded to assert it when the defense was not available in the federal court. See Lewis v. Transocean Terminal Operators, Inc., 900 So.2d 179, 183 (La.Ct.App.2005) (The "failure to assert an objection to venue that could not legally be asserted in federal court should not constitute a waiver of its right to assert the exception in state court after remand.”); Toliver v. Dallas Fort Worth Hosp. Council, 198 S.W.3d 444, 446-48 (Tex.App.2006) (objection to venue contained in motion for a change of venue filed following remand not waived by failure to include defense in answer filed in federal court). See generally Ex parte Till, 595 So.2d 871, 872 (Ala.1992) ("[A] party can waive only an objection ' "then available to him.” ’ ”).


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    Elizabeth Wendnagel RATLIFF v. Robert Bryan RATLIFF, Sr. Robert Bryan Ratliff, Sr. v. Elizabeth Wendnagel Ratliff.
    2061036.
    Court of Civil Appeals of Alabama.
    Aug. 29, 2008.

      John Olszewski and Floyd Minor of Minor & Olszewski, L.L.C., Montgomery, for appellant/cross-appellee Elizabeth Wend-nagel Ratliff.
    Stephen R. Arnold and Laura Gibson Chain of White Arnold & Dowd, Birmingham, for appellee/cross-appellant Robert Bryan Ratliff, Sr.
   MOORE, Judge.

On April 6, 2006, Elizabeth Wendnagel' Ratliff (“the wife”), filed a complaint for a divorce from Robert Bryan Ratliff, Sr. (“the husband”). The husband filed his answer and a counterclaim for a divorce on April 25, 2006. The wife filed her answer to the husband’s counterclaim on May 10, 2006.

On March 30, 2007, the husband filed a motion in limine, requesting that the trial court prevent the wife from presenting expert testimony because, he said, the wife’s attorney had only informed him that the wife had retained expert witnesses on March 22, 2007, and the trial was set for April 9, 2007. After a hearing, which was not transcribed, the trial court granted that motion.

A trial, at which ore tenus evidence was received, was conducted over the course of five days, and, on May 11, 2007, the trial court entered a judgment divorcing the parties. That judgment provided, in pertinent part:

“4. That the Court finds from all of the competent, material and relevant evidence that it is in the welfare and best interest of the minor children of the parties ... [that] the care, custody and control of the said minor children be and the same is hereby awarded as shared custody, with the primary residence being with the [husband].
“I. Shared parental responsibility (Joint Custody) for a minor child means that both parents retain full parental rights and responsibilities with respect to their children and requires both parents to confer so that major decisions affecting the welfare of the children will be determined jointly.
“II. Both [the wife] and [the husband] desire to be involved in the various activities of their minor children. These include academic, religious, civic, cultural, athletic, medical and dental activities of the minor child. [The wife] and [the husband] agree that they will consult with each other prior to initiating any such activity with the minor children. [The wife] and [the husband] agree to cooperate with one another in adjusting their schedules to assure that the children are delivered to ... and returned [sic] .... It is further agreed and understood that both parties will consult with one another regarding all such activities. It is further agreed and understood that [the wife] and [the husband] will notify one another as to any conferences, programs or events relating to such activities in such a way that both parties will have an opportunity to participate in such activities of the minor children.

“The exercise of this primary authority is in no way intended to negate the responsibility of the parties to notify and communicate with each other as set forth hereinabove.

“5. That the [wife] shall have the following visitation rights with the minor children of the parties:

“(a) The first and third full weekends of each month from 6:00 p.m. on Friday until 6:00 p.m. the following Sunday (The first weekend of a month beginning on the first Friday of each month.);
“(b) Each Christmas Day from 3:00 p.m. until 3:00 p.m. on the following New Year’s Day;
“(c) Thirty-one (31) consecutive days during the summer (to be taken between one week after school is out and one week before school starts), to be selected by the [wife] but upon written notice to [the husband] at least thirty (30) days in advance of such visitation;
“(d) During the odd years, A.E.A. (Spring Break) vacation from 9:00 a.m. Saturday until the following Saturday at 6:00 p.m.;
“(e) During the even years, Thanksgiving vacation from 6:00 p.m. Wednesday until Sunday at 6:00 p.m.;
“(f) Every other birthday of the children from 6:00 p.m. on said date until 8:00 a.m. of the following day, beginning with the next birthday;
“(g) Every Mother’s Day from 9:00 a.m. until 6:00 p.m. of the same day. The children shall be with the [husband] on Father’s Day. If that day falls on a visitation weekend, the children shall be returned to [the husband] by 9:00 a.m. on that Sunday;
“(h) On the birthday of the [wife] from 3:00 p.m. on said date until 8:00 p.m. of the same day;
“(i) At such other times as agreed upon between the parties.
“(j) At such times as the [husband] is out of town overnight without the children. Each parent shall keep the other informed on a current basis as to the primary residence address and telephone number where the children reside or visit

“That it is further ordered that during the time the [wife] shall have the physical custody of the minor children of the parties, the [wife] shall not consume or be under the influence of intoxicating beverages or stimulants.

“8. That neither party shall have overnight company of the opposite sex other than immediate family members or their spouse if applicable in the future while the minor children of the parties are present.

“9. It is further ordered that neither the [wife] nor the [husband] shall influence the minor children against the other nor shall the parties say disparaging words about one another in front of the minor children of the parties. The parties are directed to speak of one another in a positive manner in front of said children.

“10. That the [wife] shall have access to all school, educational, doctor, hospital, or other medical reports, tests, and evaluations on said children. This provision constitutes [the husband’s] consent for the release of such information to [the wife],

“11. The [wife] shall enjoy the right of reasonable telephone visitation with the minor children, at the [wife’s] expense. The [husband] shall neither interfere with nor listen in or be party to the telephone conversation during the said period of time.

“12. That the Court hereby expressly reserves jurisdiction of the issue of child support to be paid by the [wife] to the [husband] for support and maintenance of the minor children of the parties for future Order of the Court. The [wife] is unemployed and the needs of the children and the parties combined incomes exceed the guidelines.

“13. That the [wife] is presently unemployed; therefore, an Order entitled ‘Order/Notice to Withhold Income for Child Support,’ which is specifically incorporated herein as part of this Court’s Order in this cause and this Order/Notice SHALL NOT be served until further notice of this Court.

“14. That the [husband] shall provide medical and dental insurance coverage for the use and benefit of the minor children of the parties until such time as the said minor children shall reach majority, marry or become self-supporting, and further, shall evidence same to the [wife] by providing a proper identification card within thirty (30) days from the date of this Final Judgment of Divorce.

“15. That the [husband] shall pay and be responsible for all medical and dental expenses for the minor children of the parties not covered by medical and dental insux-ance until such time as the said minor children shall reach majority, marry or become self-supporting.

“16. That the [husband] shall cooperate and assist the [wife] in obtaining, completing and returning to his employer any and all forms pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1986 (COBRA) in order to insure that the [wife] will have continuous hospital, medical and major medical insurance as provided by the tercns and conditions of COBRA. The [husband] shall be solely responsible for paying any and all premiums due for her coverage.

“17. That the [husband] shall maintain and name the [wife] the irrevocable beneficiary of the life insurance policy on his life, with Valley Forge in the amount of Ten Thousand Dollars ($10,-000.00) until the [husband] shall either die or remarry. Said insurance policy shall not be assigned or otherwise further encumbered.

“18. That the [husband] shall maintain and name the minor children of the parties the irrevocable beneficiary of the life insurance policy presently maintained on his life with Colonial Properties in the amount of Fifty Thousand Dollars ($50,000.00) until the said minor children shall reach majority, many, or become self-supporting. Said insurance policy shall not be assigned or otherwise further encumbered.

“19. That the [husband] shall pay to the [wife] the sum of Eight Thousand Nine Hundred Dollars ($8,900.00), per month as periodic alimony, the first payment to be due and payable on May 1, 2007 and subsequent payments to be due and payable on the 1st day of each month thereafter. That the [husband’s] obligation hereunder shall terminate upon the first to occur of the following events: the [wife’s] death, the [husband’s] death, the [husband’s] remai’-riage, the [husband’s] commission of those acts contemplated in [§]30-2-55, Code of Alabama (1975), or as otherwise provided by law.

“20. That the [husband] shall have the sole use and occupancy of the residence of the parties ... until such time as the minor childi*en of the parties shall reach their majority, many, become self-supporting, or die or until the [husband] remarries, dies or no longer uses said residence as the principal residence of himself and the minor children. In the event any of the foregoing shall occur, the residence shall be sold within one hundred eighty (180) days from the date of such event, at a private sale, and after the costs of said sale and the balance due, if any, on the mortgage now in existence are deducted, the [wife] shall receive the sum of Four Hundred Twenty Five Thousand Dollars ($425,000.00), of the equity in the said residence.

“Further, in the event said residence is unsold at the end of said period, the Clerk of this Court shall hold a public sale upon affidavit by either party that said residence is unsold and prepayment of publication costs. Each party hereto shall be a competent bidder at same. The net proceeds shall be divided as stated hereinabove. In the event the residence has not been sold and the [husband] shall die, his equity as provided aforesaid shall pass to his estate.

“21. That the [husband] shall pay the mortgage payments, taxes and insurance on the said residence of the parties until the said residence is sold as provided in Paragraph 21 hereinabove.

“22. That the [husband] shall pay and be responsible for all interior maintenance and repairs, including the heating and air conditioning systems, to the aforesaid residence.

“23. That the [husband] shall pay and be responsible for the exterior maintenance and repairs to the aforesaid residence.

“24. That in the event the parties are vested as joint tenants with right of survivorship in the property described in Paragraph 21 hereinabove the same is hereby terminated.

“25. That the Lake House rental through Russell Land is hereby awarded to the [husband] and the [wife] is divested of any right, title or interest therein and shall hold the [wife] harmless therefrom. Further, the 22’ Sea Ray Boat is hereby awarded to the [husband].

“26. That each party to this action is awarded and shall retain the personal property presently in their respective possession.

“27. That the [wife] is awarded the following items of furniture, furnishings, appliances and household equipment located in the residence of the parties and the [husband] is divested of any right, title or interest therein, and further the [husband] is directed to deliver the said items over to the [wife] forthwith:

“Further, the [wife] and [the husband] shall equally divide all family photos and albums or [the husband] shall copy all at his expense within ninety (90) days of this Order.

“28. That the 2006 Honda CRV automobile is hereby awarded to the [wife] and the [husband] is divested of any right, title or interest therein, and further the [husband] shall perfect such documents necessary to transfer title to the [wife] forthwith. The [wife] shall be responsible for the ... indebtedness due on said automobile and shall hold the [husband] harmless therefrom.

“29. That the 2002 Cadillac, 2006 VW Jetta and 1998 BMW M3 automobiles are hereby awarded to the [husband] and the [wife] is divested of any right, title or interest therein, and further the [wife] shall perfect such documents necessary to transfer title to the [husband] forthwith. The [husband] shall be responsible for the ... indebtedness due on [the Jetta] automobile and shall hold the [wife] harmless therefrom.

“30. That the [wife] and [the husband] shall pay and be responsible for the paying the individual debts in then-respective names and shall hold one another harmless from any claims and expenses thereon.

“31. That the [husband] is hereby awarded the membership in the Birmingham Country Club and the Five Star Plantation.

“32. That the [husband] is awarded the UBS Financial Services, Inc. account that manages the Colonial Properties Trust shares and options.

“38. That the [husband] is awarded the partnership units known as Collateral Holdings Limited.

“34. That the [husband] is awarded the Wachovia Securities Account that manages the Triad Stock.

“35. That the [wife] is awarded one half (½) of [the husband’s] Colonial Properties Trust 401(k) profit sharing plan as of April 9, 2007 and the remaining one half (½) of said plan is hereby confirmed in [the husband’s] name. To effectuate this property division, the parties shall cause a Qualified Domestic Relations Order (QDRO), acceptable to the Plan Administrator, to be presented to the Court for review and Order. This division shall be effective on the date of this Final Judgment of Divorce. The Court expressly reserves continuing jurisdiction of this aspect of the property division until a QDRO is accepted by the Plan Administrator.

“36. That the [wife] is awarded her Morgan Keegan & Co., Inc. account.

“37. That [the wife] is awarded all stock currently owned by [the wife] individually including but not limited to the following: (1) Collateral Holding Limited, (2) New South Bank shares, Class A stock, (3) New South Bank shares, Class B stock (4) and Triad Stocks.

“38. That the [wife] is awarded one half (½) of [the husband]’s New South Bank Shares Inc. shares of both Class A and B common stock. That said transfer is contingent upon board approval since [the wife] is also a shareholder.

“39. That the remaining New South Bank Shares Inc. shares shall be confirmed in [the husband’s] name.

“40. That the [wife] maintains three accounts through Morgan Keegan & Co. Inc. in each of the children’s name under the Uniform Transfer to Minor’s Act each account is a completed gift and by stipulation shall be used to further their education with any remaining interest to be transferred to each individual child upon completion of their education.

“41. That the [husband] maintains three accounts through USB Financial Services Inc. in each of the children’s names under the Uniform Transfer to Minors Act. Each account is a completed gift and by stipulation shall be used to further their education with any remaining interest to be transferred to each individual child upon completion of their education.

“42. That the parties, through testimony, presented evidence of the following trust documents:

“1. The Joyce A. Ratliff 2002 RBR Trust agreement (deceased).

“2. The R. Bryan Ratliff Family Trust.

“3. A marital share/trust from the last will and testament of James K.V. Ratliff

“4. The James K.V. Ratliff 2002 Generation Skipping Trust Agreement.

“5. The R. Bryan Ratliff 2006 Trust.

“6. The Joyce A. Ratliff 2006 Trust.

“That this Court finds that each of the documents/trusts are independent and not part of the marital estate and are therefore excluded therefrom.

“43. Further, both [the wife] and [the husband] have sought and received professional counseling to address various issues both prior to and subsequent to their separation. [The wife] and [the husband] are encouraged to continue individual counseling to address all issues and be in the best interest of the children and their relationships.

“44. That the issue of a college education for [the two minor children] is hereby reserved for future Order of the Court upon a timely filed petition by either parent.

“45. That the [husband] shall pay to the [wife] the sum of Eighty Eight Thousand Dollars ($88,000.00) with which to pay her attorney of record, Jack Held for professional services rendered in this action.”

(Emphasis and capitalization in original.)

On May 29, 2007, the wife filed a motion to alter, amend, or vacate the divorce judgment. On July 9, 2007, the trial court granted the motion in part, stating:

“2. That Paragraph 17 of the Final Judgment of Divorce heretofore rendered on May 11, 2007 shall be deleted in its entirety and substituted in lieu thereof the following: 17. That the [husband] shall maintain and name the [wife] the irrevocable beneficiary of the life insurance policy on his life, with Valley Forge in the amount of Ten Thousand Dollars ($10,000.00) until the [wife] shall either die or remarry. Said insurance policy shall not be assigned or otherwise further encumbered.’
“3. That Paragraph 27(mm) of the aforesaid Final Judgment of Divorce is amended to read as follows: ‘27 mm. Dining room chairs.’

On July 25, 2007, the court entered an order correcting a clerical error in the judgment as follows:

“That Paragraph 19 of the Final Judgment of Divorce heretofore rendered on May 11, 2007 contains a clerical error therein and shall be corrected nunc pro tunc by deleting where in it reads in its entirety ‘... That the [husband’s] obligation hereunder shall terminate upon the first to occur of the following events: the [wife’s] death, the [husband’s] Death, the [husband’s] remarriage.... ’ and substituting in lieu thereof the following: ‘.That the [husband’s] obligation hereunder shall terminate upon the first to occur of the following events: the [wife’s] death, the [husband’s] death, the [wife’s] remarriage....’”

On August 9, 2007, the wife filed her notice of appeal. The husband filed his notice of cross-appeal on August 21, 2007.

Facts

The parties married in 1985. The parties had three children. Beginning in 2004, the wife began experiencing mental problems. She began going out at odd hours without telling her husband and the children where she was going. On one such instance, she drove to the family’s lake house where her Bible-study teacher and his wife were staying. Upon arrival at the lake house, the wife told her teacher and his wife that she was in love with him. The wife subsequently enrolled in a mental-health facility for 30 days. Upon her release from that facility, she informed the husband that she had decided that she wanted a divorce. The wife testified that many of the parties’ problems resulted from the husband’s being controlling and narcissistic. In February 2006, the wife attempted suicide by overdosing on prescription drugs. After she had taken the drugs, she called for help and was taken to the hospital. The parties separated and reconciled several times. The wife left the marital residence for the final time in June 2006.

At the time of the trial, the husband was 49 years old. The parties’ children were 20, 17, and 14 years old. The husband testified that his health is good, despite his previously having undergone surgeries to insert stints due to carotid artery disease. Both the husband and the wife have college degrees. The wife had been unemployed during most of the parties’ marriage. The husband had been employed by Colonial Properties Services, Inc., as the senior vice president of retail development for 15 years. His base salary is $185,000 per year. He sometimes received bonuses, the most recent one being $200,000 in 2005.

The parties’ adjusted gross income for 2005 was $1,179,683. The husband’s total wages were $353,959. The parties’ interest income was $129,333, and the parties’ dividend income was $22,811. They received $17,331 in refunds from state or local income taxes. They also received a distribution from a retirement plan in the amount of $34,605. The parties’ reported capital gains in the amount of $60,322 and other gains in the amount of $342. They reported income from partnerships and corporations in the amount of $560,980. The parties’ Alabama income-tax liability was $10,133, and the parties’ also had income-tax liability in other states in various small amounts.

The parties’ accountant testified that approximately $214,000 of the income reported from New South Federal Savings Bank (“New South”) and approximately $191,000 of the income reported from Collateral Holdings, Ltd., was not actually received by the parties. The parties’ accountant testified that the husband reported income from New South and Collateral Holdings in the amount of $681,217 and that the wife reported income from those two entities in the amount of $44,747. He testified that the husband actually received only $223,922 from New South and $58,857 from Collateral Holdings. He testified that the wife actually received only $10,905 from New South and $5,612 from Collateral Holdings. The accountant estimated that in 2005 the parties actually received approximately $398,085 in net cash flow.

The marital home is valued at $1,000,000. The balance on the mortgage on the home is $150,000. The husband presented evidence indicating that the parties owed $10,000 on a boat. The wife introduced a document showing that she had debt totaling $25,900.99.

The husband has a Colonial Properties Trust 401(k) profit-sharing-plan account valued at $225,000. The husband’s Collateral Holdings partnership units are valued at $3,254,809.50, and the wife’s Collateral Holdings partnership units are valued at $309,334.50. The husband testified that his father had given the parties the Collateral Holdings partnership units. The husband’s New South class A stock, which the court ordered divided equally between the parties, is valued at $2,808,169.65. The wife’s New South class A stock is valued at $136,715.40. There was no evidence presented regarding the parties’ New South class B stock. The husband had a Laden-burg Thalmann account valued at $8,000, a Wachovia Securities account that manages Triad stock valued at $2,971,360, and a UBS Financial Services, Inc., account that manages Colonial Properties Trust shares and options valued at $218,694.02. The husband testified that the Triad stock had been acquired through the Collateral Holdings partnership units. Neither the Collateral Holdings partnership units nor the Triad stock may be transferred without board approval.

The wife had a Morgan Keegan & Co., Inc., account valued at $91,686.24 and Triad stock valued at $230,280. The parties own four automobiles, two of which were driven by their two oldest children. They also own a boat valued at $7,000; there was a $10,000 loan owed on the boat. The husband presented a document wherein he valued the parties’ household items at $40,000. The parties also have a lake house that they rent out and memberships in the Birmingham Country Club and the Five Star Plantation. No value was assigned to those assets.

There was evidence presented regarding several trusts that owned various assets; however, the trial court found that those trusts were not marital property.

Discussion

On appeal, the wife argues (1) that the trial court incorrectly found that certain trusts were not marital property; (2) that the trial court erred by excluding the wife’s expert witness; (3) that the trial court’s division of property was inequitable; (4) that the trial court’s award of alimony was inadequate; (5) that the trial court erred in ordering that the alimony would terminate upon the husband’s remarriage; (6) that the trial court erred by requiring the husband to maintain only a $10,000 policy of life insurance on his life for her benefit; (7) that the trial court erred by failing to implement a parenting plan; (8) that the trial court erred by failing to award her visitation on Christmas eve or on Christmas morning; (9) that the trial court erred by failing to specifically define the term “stimulants”; and (10) that the trial court erred by failing to require the husband to pay all the wife’s attorney fees and litigation expenses. On cross-appeal, the husband argues that the trial court exceeded its discretion in failing to order the wife to pay child support.

Appeal

I.

We first address the wife’s argument that the trial court incorrectly found that the Joyce A. Ratliff 2002 RBR Trust and the R. Bryan Ratliff 2006 Trust were not marital property.

Section 30-2-51(a), Ala.Code 1976, provides:

“If either spouse has no separate estate or if it is insufficient for the maintenance of a spouse, the judge, upon granting a divorce, at his or her discretion, may order to a spouse an allowance out of the estate of the other spouse, taking into consideration the value thereof and the condition of the spouse’s family. Notwithstanding the foregoing, the judge may not take into consideration any property acquired prior to the marriage of the parties or by inheritance or gift unless the judge finds from the evidence that the property, or income produced by the property, has been used regularly for the common benefit of the parties during their marriage.”

The wife does not argue that these trusts were not gifts or part of an inheritance. Instead, she argues that distributions from these trusts were used for the common benefit of the marriage and, thus, should have been considered as marital property.

As to the Joyce A. Ratliff 2002 RBR Trust, the trustee of that trust testified that the only distribution that had ever been made from the trust was in August or September 2006 in order to purchase a new automobile for the wife after the parties’ daughter had wrecked the wife’s automobile. As to the R. Bryan Ratliff 2006 Trust, the husband testified that the only distributions that had been made from that trust were for his legal fees and to purchase an automobile for the wife. The ■wife has not pointed us to any contrary evidence. Based on the foregoing, we conclude that the trial court could have determined that the aforementioned trusts were not used regularly for the common benefit of the parties during the marriage. See Bushnell v. Bushnell, 713 So.2d 962, 964 (Ala.Civ.App.1997) (interpreting the word “regularly” as used in § 30-2-51(a) to mean frequent or periodic use of the property to satisfy needs of the family); see also Hull v. Hull, 887 So.2d 904, 908 (Ala. Civ.App.2003) (holding that a one-time use of property for the common benefit of the parties cannot be considered “regular”). Accordingly, we cannot find error on this issue.

II.

The wife next argues that the trial court erred by excluding the wife’s expert witness. She argues that the husband was evasive and disingenuous when testifying about the values of the marital assets and submits that her expert would have provided the actual values of the marital assets to the court.

On December 1, 2006, the wife moved to continue the case, stating that she had' retained a financial expert but that the expert had not completed his analysis and evaluation. The trial court continued the case. On or about March 30, 2007, the husband moved to exclude the wife’s expert witness. He alleged that the wife had only informed him on March 22, 2007, that she had retained Grant McDonald, a certified public accountant, to testify as an expert. He further averred that the wife had testified at her deposition on October 11, 2006, that McDonald would not be testifying at trial. Further, the husband averred that the wife had not provided the husband with a written report or any other documents regarding McDonald and that the husband had had insufficient time to depose McDonald and/or hire an expert of his own.

On appeal, the wife argues that the husband was on notice that she would hire an expert as of December 1, 2006, and that there was no scheduling order requiring her to disclose the identity of her expert at any point in time. We note, however, that the husband alleged that the wife had testified at her deposition that she would not be calling McDonald as a witness. She then changed her mind and notified the husband approximately two weeks before the trial that she would be calling McDonald. The trial court apparently was convinced that it would be unfair to the husband to allow the expert to testify given those circumstances. The admission of testimony from witnesses whose identity may not have been disclosed in accordance with properly conducted pretrial-discovery procedure is within the trial court’s sound discretion; unless the trial court palpably exceeds that discretion, the trial court’s decision will not be disturbed on appeal. Edwards v. Valentine, 926 So.2d 315, 330 (Ala.2005). A trial court does not exceed its discretion when it precludes an expert witness from testifying based on the prejudice to the opposing party from a tardy disclosure of the identity of the witness. See, e.g., Tuck v. Health Care Auth. of Huntsville, 851 So.2d 498 (Ala.2002); Spruiell v. Robinson, 582 So.2d 508 (Ala.1991); and Electrolux Motor AB v. Chancellor, 486 So.2d 414 (Ala.1986). Based on the foregoing, we conclude that the trial court acted within its discretion in excluding the wife’s financial expert.

Ill

The wife’s next two arguments are that the trial court’s division of property and its award of alimony are inequitable.

“[M]atters of alimony and property division rest soundly within the trial court’s discretion, and rulings on those matters will not be disturbed on appeal except for a plain and palpable abuse of discretion. Welch v. Welch, 636 So.2d 464 (Ala.Civ.App.1994). Matters of alimony and property division are interrelated, and the entire judgment must be considered in determining whether the trial court abused its discretion as to either of those issues. Willing v. Willing, 655 So.2d 1064 (Ala.Civ.App.1995).”

Henderson v. Henderson, 800 So.2d 595, 597 (Ala.Civ.App.2000). Accordingly, we address these two issues together.

“ ‘ “[WJhere the evidence has been [presented] ore tenus, a presumption of correctness attends the trial court’s conclusion on issues of fact, and this Court will not disturb the trial court’s conclusion unless it is clearly erroneous and against the great weight of the evidence, but will affirm the judgment if, under any reasonable aspect, it is supported by credible evidence.” ’ ”

Yeager v. Lucy, 998 So.2d 460, 463 (Ala.2008) (quoting Reed v. Board of Trs. for Alabama State Univ., 778 So.2d 791, 795 (Ala.2000), quoting in turn Raidt v. Crane, 342 So.2d 358, 360 (Ala.1977)). “[W]e note that there is no rigid standard or mathematical formula on which a trial court must base its determination of alimony and the division of marital assets.” Yohey v. Yohey, 890 So.2d 160, 164 (Ala.Civ.App.2004).

“Factors the trial court should consider in its award of alimony and its division of property include the earning abilities of the parties; the future prospects of the parties; them ages and health; the duration of the marriage; their station in life; the marital properties and their sources, values and types; and the conduct of the parties in relation to the marriage. [Willing v. Willing, 655 So.2d] at 1067 [ (Ala.Civ.App.1995) ]. Further, a division of marital property in a divorce case does not have to be equal, only equitable, and a determination of what is equitable rests within the sound discretion of the trial court.”

Henderson, 800 So.2d at 597.

In this case, based on the evidence before it, the trial court awarded the following marital property to the parties: _Husband_Wife_

$425,000 equity in home ⅜425,000 equity in home

$112,500 $112,500

Colonial Properties Trust Colonial Properties Trust 401(k) profit-sharing-plan 401(k) profit-sharing-plan account_account_

$1,404,084.83 $1,540,800.23

New South class A stock New South class A stock

$21,000 $91,686.24

Cash_Morgan Keegan account

$3,254,809.50 $309,334.50

Collateral Holdings part- Collateral Holdings partnership units_nership units_

Unknown Value Unknown Value

New South class B stock New South class B stock

$2,971,360 $230,280

Triad stock_Triad stock_

($3,000) ($25,900.99)

boat_Credit-card debt_

$8,000

Ladenburg Thalmann account_

$218,694.02

Colonial Properties Trust shares and options_

$8,412,448.35 $2,683,699.98

Total Value_Total Value

The trial court’s division of property resulted in the wife being awarded property valued at $2,683,699.98, approximately 24% of the known value of the marital property.

The parties’ accountant testified that the parties had a yearly net cash flow of approximately $398,085, or $33,173.75 per month. The trial court awarded the wife one-half of the husband’s New South stock. If we take the parties’ monthly net cash flow and subtract the following: $9,333 (one-half of the distributions generated by the husband’s New South stock), $2,633

(the amount of the parties’ income attributable to the wife as reported on her CS-41 child-support-income affidavit), and $8,900 (the husband’s monthly periodic-alimony obligation), that leaves the husband with a monthly net cash flow of $12,307.75. The wife, on the other hand, will have a monthly net cash flow of $20,866 ($2,633 + $9,333 -I- $8,900).

The wife submitted that her monthly living expenses were approximately $16,500, including taxes. Accordingly, even without working, the wife has more than enough income to meet her monthly expenses.

Considering the fact that the wife’s monthly disposable income will exceed that of the husband’s, and considering the other relevant factors, we cannot say that the trial court exceeded its discretion in its division of property and its award of alimony. See Hendrix v. Hendrix, 606 So.2d 142, 144 (Ala.Civ.App.1992) (“Even if a property division favors one spouse over the other, that is not, in and of itself, an abuse of discretion.”).

IV.

The wife’s next argument is that the trial court erred in ordering that the husband’s periodic-alimony obligation would terminate upon the husband’s remarriage. She acknowledges, however, that the tidal court entered an order on July 25, 2007, stating that that provision contained a clerical error and that the judgment should say that the alimony would terminate upon the wife’s remarriage, not the husband’s remarriage. The wife, however, expresses concern that the trial court was without jurisdiction to enter the July 25, 2007, order because it had previously ruled on her motion to alter, amend, or vacate the trial court’s judgment. We note, however, that a trial court may correct a clerical mistake in its judgment “at any time of its own initiative or on the motion of any party.” Rule 60(a), Ala. R. Civ. P.; Ex parte Brown, 963 So.2d 604, 609 (Ala.2007). Accordingly, we conclude that the trial court had jurisdiction to correct the error.

V.

The wife also argues that the trial court erred by requiring the husband to maintain only a $10,000 policy of life insurance on his life for her benefit. A trial court may include a provision in a divorce judgment requiring a former spouse to maintain a life-insurance policy for the benefit of the other former spouse. Strong v. Strong, 709 So.2d 1259 (Ala.Civ. App.1998). However, our caselaw indicates that it is within the trial court’s discretion whether to order a divorcing spouse to maintain a life-insurance policy for the benefit of the other spouse. See, e.g., Bush v. Bush, 784 So.2d 299, 300 (Ala.Civ.App.2000). In Powell v. Powell, 628 So.2d 832 (Ala.Civ.App.1993), this court rejected the same argument made by the wife in this case, stating:

“The wife asserts that the court erred in the amount of life insurance it required the husband to provide for her benefit.
“The court ordered the husband to maintain a $50,000 insurance policy on his life, with the wife as beneficiary. The wife insists that the amount ordered is insufficient to secure her periodic and in gross alimony awards should anything happen to the husband. She contends that the husband should be ordered to carry at a minimum a $300,000 policy.
“The wife does not cite us to any authority to buttress her opinion that the husband is obligated to secure her future alimony payments. And we are not familiar with such a mandated obligation. The order to maintain life insurance was a benevolent gesture by the court and a matter within its discretion. It was not error for it to enter such an order....”

628 So.2d at 834-35. As in Powell, the wife in this case has not cited any legal authority requiring a trial court, when making the “benevolent gesture” of ordering a divorcing spouse to maintain a life-insurance policy for the benefit of the former spouse, to establish an amount sufficient to secure all future alimony payments. Accordingly, we find no error in this regard.

VI.

The wife’s next argument is that the trial court erred by “failing to implement a parenting plan” as required by Ala.Code 1975, § 30-3-153. Specifically, the wife argues that the trial court erred by ordering the parties to share joint responsibility for all major decisions concerning the children without designating which parent should have final decision-making authority in the event of their disagreement. We note, however, that § 30-3-153 applies solely to joint-custody agreements; the parties did not agree to joint custody in this case. Section 30-3-151(2) gives the trial court the discretion to establish a parenting plan when awarding joint custody. See Ala.Code 1975, § 30-3-151(2) (“The court may designate one parent to have sole power to make certain decisions while both parents retain equal rights and responsibilities for other decisions.” (emphasis added)). The wife has not pointed us to any evidence that would compel the trial court to establish a parenting plan. Accordingly, we conclude that the trial court did not exceed its discretion in declining to designate which parent should have final decision-making authority on each issue with regard to the children.

VII.

The wife next argues that the trial court erred by failing to award her visitation on Christmas Eve or on Christmas morning.

“The trial court has broad discretion in determining the visitation rights of a noncustodial parent, and its decision in this regard will not be reversed absent an abuse of discretion. Alexander v. Alexander, 625 So.2d 433, 435 (Ala.Civ. App.1993). Every case involving a visitation issue must be decided on its own facts and circumstances, but the primary consideration in establishing the visitation rights accorded a noncustodial parent is always the best interests and welfare of the child.”

Carr v. Broyles, 652 So.2d 299, 303 (Ala. Civ.App.1994).

We note that the trial court awarded the wife visitation on every Christmas day after 3:00 p.m. Considering our limited standard of review on this issue, the ages of the children, and the fact that the court’s judgment provided for significant periods of visitation, we cannot find the trial court in error on this point.

VIII.

The wife also argues that the trial court erred by prohibiting her from “consum[ing] or be[ing] under the influence of ... stimulants” while visiting with the parties’ children. The wife first contends that the judgment is unclear as to whether the ban applies to her prescription medication. “[I]f the terms of a judgment are not ambiguous, they should be given their usual and ordinary meaning.” Moore v. Graham, 590 So.2d 293, 295 (Ala. Civ.App.1991). We conclude that the ordinary meaning of the word “stimulants” includes prescription medication that has a stimulating effect. Therefore, we find no need to remand the case for the trial court to further define the term “stimulants.”

The wife next contends that the trial court exceeded its discretion in prohibiting her from using her prescription medication while visiting with the parties’ children. The wife argues that she is given a “Hob-son’s choice” of either complying with her doctor’s advice, thereby violating the trial court’s judgment and jeopardizing her visitation rights, or endangering her health by complying with the judgment. The record reveals that the wife had overdosed on prescription medication on one occasion and had used her son’s prescription medication without authorization. The trial court did not err by concluding that the children’s best interests would be served by restricting the wife’s use of stimulating prescription medication.

However, “[t]he trial court is entrusted to balance the rights of the parents with the child’s best interests to fashion a visitation award that is tailored to the specific facts and circumstances of the individual case.” Nauditt v. Haddock, 882 So.2d 364, 367 (Ala.Civ.App.2003). The danger to the children was not from the wife’s proper use of prescription medication, but from her misuse or abuse of prescription medication. The record is devoid of any evidence indicating that the wife acts erratically or irresponsibly while using her medication as prescribed. We also note that the medication was prescribed to combat the wife’s mental problems, so it may actually be harmful to the children to visit with the wife while she is not taking her prescription medication. By totally prohibiting the wife from using any stimulants, including her prescription medication, the restriction fashioned by the trial court is overly broad. The trial court should have qualified its restriction by stating that the wife could not use stimulants “other than as prescribed by her physicians.” We, therefore, reverse that portion of the trial court’s judgment and remand the cause for the trial court to qualify the visitation restriction in the judgment.

IX.

The wife’s final argument is that the trial court erred by failing to require the husband to pay all the wife’s attorney fees and litigation expenses.

“Whether to award an attorney fee in a domestic relations case is within the sound discretion of the trial court and, absent an abuse of that discretion, its ruling on that question will not be reversed. Thompson v. Thompson, 650 So.2d 928 (Ala.Civ.App.1994). ‘Factors to be considered by the trial court when awarding such fees include the financial circumstances of the parties, the parties’ conduct, the results of the litigation, and, where appropriate, the trial court’s knowledge and experience as to the value of the services performed by the attorney.’ Figures v. Figures, 624 So.2d 188, 191 (Ala.Civ.App.1993). Additionally, a trial court is presumed to have knowledge from which it may set a reasonable attorney fee even when there is no evidence as to the reasonableness of the attorney fee. Taylor v. Taylor, 486 So.2d 1294 (Ala.Civ.App.1986).”

Glover v. Glover, 678 So.2d 174, 176 (Ala. Civ.App.1996). In the present case, the trial court ordered the husband to pay $88,000 toward the wife’s attorney fees. The wife argues that the court should have ordered the husband to pay the entire attorney fee of $125,000 and her litigation expenses of approximately $18,000. Considering the factors that the trial court must consider in its decision to award attorney fees, especially considering the wife’s ability to pay a portion of her own fees, we cannot find any error in that aspect of the trial court’s judgment.

Cross-Appeal

The sole issue presented by the husband in his cross-appeal is whether the trial court exceeded its discretion in failing to order the wife to pay child support.

“ ‘Matters related to child support ... rest soundly within the trial court’s discretion and will not be disturbed on appeal, absent a showing that the ruling is unsupported by the evidence and thus is plainly and palpably wrong.’ ” Volovecky v. Hoffman, 903 So.2d 844, 847 (Ala.Civ. App.2004) (quoting Jackson v. Jackson, 777 So.2d 155, 158 (Ala.Civ.App.2000)).

“When the [parties’] combined adjusted gross income exceeds the uppermost limit of the child support schedule, the amount of child support awarded must rationally relate to the reasonable and necessary needs of the child, taking into account the lifestyle to which the child was accustomed and the standard of living the child enjoyed before the divorce, and must reasonably relate to the obli-gor’s ability to pay for those needs.... To avoid a finding of an abuse of discretion on appeal, a trial court’s judgment of child support must satisfy both prongs.”

Dyas v. Dyas, 683 So.2d 971, 973-74 (Ala. Civ.App.1995) (footnote omitted).

In the present case, the wife is unemployed and had been unemployed for most of the parties’ marriage. The trial court reserved the issue of child support because of the wife’s unemployment. However, the law does not grant the trial court the discretion to simply reserve a child-support determination based solely on the fact of a parent’s unemployment at the time of the entry of the judgment. Parker v. Parker, 946 So.2d 480, 487-89 (Ala.Civ.App.2006).

Despite her unemployment, the wife had investment income of $2,633 per month that she reported on her CS-41 form. Taken together with the husband’s monthly income, it is clear that the parties’ combined monthly gross income exceeds $10,000 per month. In such cases, Rule 32(C), Ala. R. Jud. Admin., provides that “[t]he court may use its discretion in determining child support .... ” “[A] trial court’s discretion is not unbridled and ... the amount of child support awarded must relate to the reasonable and necessary needs of the children as well as to the ability of the obligor to pay for those needs.” Dyas, 683 So.2d at 973. We reverse the trial court’s judgment as to this issue, and we remand the case. We instruct the trial court on remand to enter a child-support order based on the appropriate criteria.

Conclusion

Based on the foregoing, we reverse the trial court’s judgment as to the restriction on the wife’s visitation and remand the cause for the trial court to enter a judgment in accordance with this opinion. We affirm the trial court’s judgment as to all the other issues raised in the wife’s appeal. As to the husband’s cross-appeal, we reverse that part of the judgment reserving the child-support issue and we remand the cause to the trial court for further proceedings consistent with this opinion.

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

APPEAL — AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

CROSS-APPEAL — REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      . Because not all the information was available from the year 2006, our analysis focuses solely on the 2005 information.

      . Throughout the record, this entity appears to be referred to by various names, including: “New South Federal Savings Bank,” "New South Bancshares, Inc.,” "New South Banc-shares, LLC,” and "New South Bank.” In its judgment, the trial court refers to tills entity as "New South Bank Shares Inc.” In their appellate briefs, the parties agree that one of their primary sources of income was their ownership interests in "New South Federal Savings Bank”; therefore, for purposes of this opinion, we will refer to this entity as "New South Federal Savings Bank.”

      . This amount is approximate because the tax consequences of the decreased income due to the award of property to the wife and the tax deduction for payment of alimony are not factored into the calculation.

      . This amount does not take into account the tax consequences to the wife resulting from the award of periodic alimony.

      . In Parker v. Parker, 946 So.2d 480 (Ala.Civ. App.2006), we held that a judgment that reserved the issue of child support indefinitely, and not pending the occurrence of a specific event, is a final judgment.