author: THOMAS, Judge.

text:
    Andreas Walter MATTES v. Terri Ann MATTES.
    2081122.
    Court of Civil Appeals of Alabama.
    March 12, 2010.
    Rehearing Denied April 23, 2010.
    Certiorari Denied Oct. 8, 2010 Alabama Supreme Court 1091085.
    Stephen R. Arnold of White Arnold & Dowd P.C., Birmingham, for appellant.
    Robert E. Gibney, Mobile; and Joseph C. Sullivan, Jr., of Hamilton, Butler, Rid-dick, Tarlton & Sullivan, Mobile, for appel-lee.
   THOMAS, Judge.

Andreas Walter Mattes (“the father”) appeals from the judgment of the Baldwin Circuit Court modifying his child-support obligation to Terri Ann Mattes (“the mother”) and awarding the mother past expenses, prejudgment interest, and an attorney fee. We dismiss the appeal for lack of jurisdiction.

In 1991, the father, a citizen of the Federal Republic of Germany, and the mother, a citizen of the United States, were married in Florida. Thereafter, the parties resided in Germany. Two children were born of the marriage, P.M. and J.M. (collectively referred to as “the children”).

In 2003, while the parties were still residing in Germany, the parties separated. The parties entered into a settlement agreement that was incorporated into their July 2, 2004, German divorce judgment. The agreement provided that the father would pay € 964 per month to the mother as child support. The agreement also provided that the father would reimburse the mother for her actual expenses for the children’s education, medical care, and extracurricular activities. The agreement further provided that the parties had agreed that educational expenses, including private-school tuition, would total approximately € 21,000 per year and that expenses for extracurricular activities would total approximately € 3,000 per year.

In July 2003, after the parties separated, the mother and the children moved from Germany to Memphis, Tennessee. In 2005, the mother remarried and she and the children relocated to Orange Beach. The father moved to the United States in 2004; he currently resides in California.

In October 2006, the mother petitioned the Mobile Circuit Court to domesticate the parties’ foreign divorce judgment, to hold the father in contempt for failure to make certain payments as required by the divorce judgment, and to modify the amount of the father’s child-support obligation. The father was personally served with process while’ he was in Alabama visiting the children. In response to the mother’s petition, the father moved the Mobile Circuit Court to dismiss the mother’s petition for lack of personal jurisdiction or, in the alternative, to transfer the case to the Baldwin Circuit Court (“the trial court”). Based on an agreement between the parties,, the Mobile Circuit Court granted the father’s motion to transfer the case to the trial court.

The father then moved the trial court to dismiss the case, alleging that the trial court lacked personal jurisdiction over the father and that the trial court lacked subject-matter jurisdiction to enforce or modify the German divorce judgment. The father also alleged in his motion that the parties had entered into a valid antenuptial agreement that contained a provision stating that German law would control the calculation of child support and that the divorce judgment contained a provision declaring that German law would apply to the divorce. After conducting a hearing, the trial court denied the father’s motion to dismiss; it did not rule at that time on the applicability of German law to the mother’s petition.

On February 4, 2009, the father filed a motion in limine, requesting that the trial court limit the evidence offered at trial until the parties provided the trial court with the German law that was applicable to the case. The father argued that the choice-of-law provision in the antenuptial agreement and the provisions of the divorce judgment mandated the application of German law to the mother’s petition. Following a hearing, the trial court granted the father’s motion, determining that German law controlled the calculation and modification of child support. Both parties subsequently submitted to the trial court affidavits from German attorneys on the relevant areas of German law.

On May 18, 2009, following a hearing, the trial court entered a judgment that increased the father’s child-support obligation to $4,000 per month, awarded the mother $13,246.78, including an award of prejudgment interest, as reimbursement for past medical expenses, awarded the mother $38,025.57, including prejudgment interest, as reimbursement for past educational expenses, and awarded the mother $16,363.47, including prejudgment interest, as reimbursement for past extracurricular-activity expenses. The judgment placed a $10,000 per year cap on future educational expenses and a $6,000 per year cap on future extracurricular-activity expenses. The trial court also awarded the mother $40,000 as an attorney fee. The father filed a postjudgment motion seeking a new trial or, in the alternative, to alter, amend, or vacate the judgment. The trial court denied the father’s motion, and the father timely appealed to this court.

The father first argues that the trial court lacked subject-matter jurisdiction over the case. The Alabama Uniform Interstate Family Support Act (“the UIF-SA”), codified at Ala.Code 1975, § 30-3A-101 et seq., governs Alabama courts’ jurisdiction over foreign child-support orders. The mother’s petition sought to modify and to enforce the German child-support order. An Alabama court may obtain jurisdiction to modify a foreign child-support order only if the requirements of § 30-3A-611 of the UIFSA have been met. Section 30-3A-611 provides:

“(a) After a child-support order issued in another state has been registered in this state, the responding court of this state may modify that order only if Section 30-3A-613 does not apply and after notice and hearing it finds that:
“(1) the following requirements are met:
“(i) the child, the individual obligee, and the obligor do not reside in the issuing state;
“(ii) a petitioner who is a nonresident of this state seeks modification; and
“(in) the respondent is subject to the personal jurisdiction of the court of this state; or
“(2) the child, or a party who is an individual, is subject to the personal jurisdiction of the court of this state and all of the parties who are individuals have filed written consents in the issuing tribunal for a court of this state to modify the support order and assume continuing, exclusive jurisdiction over the order. However, if the issuing state is a foreign jurisdiction that has not enacted a law or established procedures substantially similar to the procedures under this chapter, the consent otherwise required of an individual residing in this state is not required for the court to assume jurisdiction to modify the child-support order.
“(b) Modification of a registered child-support order is subject to the same requirements, procedures, and defenses that apply to the modification of an order issued by a court of this state and the order may be enforced and satisfied in the same manner.
“(c) A court of this state may not modify any aspect of a child-support order that may not be modified under the law of the issuing state. If two or more tribunals have issued child-support orders for the same obligor and child, the order that controls and must be so recognized under Section 30-3A-207 establishes the aspects of the support order which are nonmodifiable.
“(d) On issuance of an order modifying a child-support order issued in another state, a court of this state becomes the court having continuing, exclusive jurisdiction.”

In this case, the mother, a resident of Alabama, sought to modify the' child-support obligation of the father, a resident of California. Because the mother, who is the petitioner,, is a resident of Alabama, the requirement of § 30-3A-611(a)(l)(ii) that the petitioner not be a resident of this state has not been met. The Official Comment to § 30-3A-611 states that when the issuing state has lost continuing, exclusive jurisdiction over the child-support order

“the obligee may seek modification in the obligor’s state of residence, or ... the obligor may seek a modification in the obligee’s state of residence. This restriction attempts to achieve a rough justice between the parties in the majority of cases by preventing a litigant from choosing to seek modification in a local tribunal to the marked disadvantage of the other party. For example, an obli-gor visiting the children at the residence of the obligee cannot be validly served with' citation accompanied by a motion to modify the support order. Even though such personal service of the obligor in the obligee’s home state is consistent with the jurisdictional requisites of Burnham v. Superior Court, 495 U.S. 604 (1990), the motion to modify does not fulfill the requirement of being brought by ⅛ [petitioner] who is a nonresident of this State.... ’ In short, the obligee is required to register the existing order and seek modification of that order in a state which has personal jurisdiction over the obligor other than the state of the obligee’s residence. Most typically this will be the state of residence of the obligor.”

Thus, under the UIFSA, the mother was required to bring her action to modify the father’s child-support obligation in a state other than Alabama that could properly exercise personal jurisdiction over the father. Therefore, because the requirements of § 30-3A-611 were not met, the trial court did not have subject-matter jurisdiction over the mother’s petition to modify the father’s child-support obligation.

The mother also petitioned the trial court for a rule nisi, seeking to enforce the German child-support order. A party seeking to enforce a foreign child-support order must register the foreign child-support order according to the requirements of § 30-3A-602 of the UIFSA, which provides:

“(a) A support order or income-withholding order of another state may be registered in this state by sending the following documents and information to the appropriate court in this state:
“(1) a letter of transmittal to the court requesting registration and enforcement;
“(2) two copies-, including one certified copy, of all orders to be registered, including any modification of an order;
“(3) a sworn statement by the party seeking registration or a certified statement by the tribunal or collection agency showing the amount of any arrearage;
“(4) the name of the obligor and, if known:
“(i) the obligor’s address and social security number;
“(ii) the name and address of the obligor’s employer and any other source of income of the obligor; and
“(iii) a description and the location of property of the obligor in this state not exempt from execution; and
, “(5) the name and address of the obligee and, if applicable, the agency or person to whom support payments are to be remitted.
(b) On receipt of a request for registration, the registering court shall cause the order to be filed as a foreign judgment, together with one copy of the documents and information, regardless of their form.
(c) A petition or comparable pleading seeking a remedy that must be affirmatively sought under other law of this state may be filed at the same time as the request for registration or later. The pleading must specify the grounds for the remedy sought.”

In this case, the mother did not follow the statutory requirement to file two copies, one of them certified, of the child-support order with the clerk of the trial court. Because the mother did not meet the statutory requirements of § 30-3A-602, the trial court never obtained subject-matter jurisdiction over the foreign child-support order. Thus, the trial could not enforce the foreign child-support order. See S.A.T. v. E.D., 972 So.2d 804, 807 (Ala.Civ.App.2007) (holding that a court lacks subject-matter jurisdiction to enforce an unregistered foreign child-support order).

Because the trial court did not have subject-matter jurisdiction to enforce or to modify the foreign child-support order, the trial court’s judgment is void. Gulf Beach Hotel, Inc. v. State ex rel. Whetstone, 936 So.2d 1177, 1183 (Ala.2006). A void judgment will not support an appeal. Id. “[A]n appellate court must dismiss an attempted appeal from such a void judgment.” Vann v. Cook, 989 So.2d 556, 559 (Ala.Civ.App.2008). Therefore, we dismiss the father’s appeal and instruct the trial court to vacate its May 18, 2009, judgment.

APPEAL DISMISSED WITH INSTRUCTIONS.

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

      . At the time of trial, e964 equaled approximately $1,214.


source: Caselaw Access Project

author: BRYAN, Judge.

license: Public Domain

text:
    Christopher Lee TUCKER v. Amy Michelle TUCKER.
    2080912.
    Court of Civil Appeals of Alabama.
    May 7, 2010.
    Rehearing Denied Aug. 20, 2010.
    Certiorari Denied Oct. 8, 2010 Alabama Supreme Court 1091669.

      J. Timothy Kyle of Russell, Straub & Kyle, Decatur, for appellant.
    Sharon A. Johnston, Huntsville, for ap-pellee.

      . Neither the case-action summary nor State Judicial Information System ("SJIS1') contains an entry of an order on December 13, 2008. The trial court, in its judgment, refers to the December 13, 2008, order as “the Court's order granting sanctions.” Based on that statement, we conclude that the trial court was referring to its order dated December 8, 2008, which appears in the case-action summary and in SJIS.

   BRYAN, Judge.

Christopher Lee Tucker (“the husband”) appeals from a judgment of the Morgan Circuit Court (“the trial court”) that divorced him from Amy Michelle Tucker (“the wife”).

Procedural History

The husband and the wife were .married in 1995 and they separated in August 2007. Two children were born of the parties’ marriage, both boys, born in January 2004 and July 2005 (referred to collectively as “the children”). On December 8, 2007, the wife filed a complaint for a divorce against the husband. The wife sought certain pendente lite relief as well as permanent relief such as custody of the children, child support, an equitable division of the parties’ marital property and debt, periodic alimony, and an award of attorney fees. On December 12, 2007, before he was served with the wife’s complaint, the husband filed a complaint for a divorce against the wife. The husband sought, among other things, custody of the children, child support, and an equitable division of the parties’ marital property and debt, as well as certain pendente lite relief. The trial court subsequently consolidated the parties’ complaints for a divorce and deemed the husband’s complaint a counter-complaint. The husband later answered the wife’s complaint.

On February 26, 2008, the trial court conducted a hearing on the parties’ pending motions for pendente lite relief. On March 7, 2008, the trial court entered an amended pendente lite order that, among other things: awarded the wife temporary exclusive possession of the marital residence; awarded the wife temporary sole legal and physical custody of the children; awarded the husband certain visitation rights, “pending a final hearing”; ordered the husband to pay $862 a month in child support; and ordered the parties to each pay one-half of fixed monthly, semi-annual, or annual expenses, unless they could agree otherwise.

Also on March 7, 2008, the wife filed a motion to propound more than 40 interrogatories on the husband and served the husband with discovery in the form of interrogatories and requests for production of documents. The wife’s motion to propound more than 40 interrogatories was never specifically granted by the trial court. On or about June 12, 2008, the wife filed a motion to compel the husband to respond to her discovery requests. On June 17, 2008, the trial court ordered the husband to respond to the wife’s discovery requests within 15 days. On or about July 3, 2008, the husband filed his response to the wife’s interrogatories. On August 26, 2008, the parties reached a temporary agreement on all pending motions; however, the trial court’s pendente lite order incorporating that argument did not address any discovery issues.

The wife served a second set of interrogatories and a second set of requests for production of documents on the husband on or about September 26, 2008. On November 12, 2008, the wife filed a motion to compel a response to her interrogatories and requests for production of documents and a motion for sanctions. The wife alleged that the husband, in response to her first set of requested discovery, had provided no answers or responses, or he had provided incomplete answers or responses. The wife alleged that the husband had not responded to her second set of discovery requests. The wife requested that the trial court enter sanctions against the husband in accordance with Rule 37, Ala. R. Civ. P.

On November 13, 2008, the trial court entered an order that granted the wife’s motion to compel, and it ordered the husband to respond to the wife’s discovery requests within 15 days of the entry of the trial court’s order. In that order, the trial court warned that failure to comply with the order could result in sanctions against the husband.

On December 3, 2008, the wife filed a second motion for sanctions. She alleged that the husband had failed to comply with the trial court’s November 13, 2008, order compelling the husband to answer the wife’s discovery requests. On December 8, 2008, the trial court entered an order that “conditionally granted” the wife’s motion for sanctions against the husband. The trial court stated: “Default judgment shall be entered against the [husband] for all relief requested by the [wife], and the [husband]’s counterclaim will be dismissed on December 22, 2008, unless the [husband] complies with this court’s prior order before December 22, 2008.”

On December 12, 2008, the husband filed a motion to deny and revoke sanctions. He alleged that his attorney (who had filed an appearance on December 12, 2008, as the husband’s third attorney in the divorce proceeding) could not complete the wife’s discovery requests in the time allotted by the trial court. The husband sought a continuance of the final hearing and an extension of the time allotted for him to respond to the wife’s discovery requests. On December 19, 2008, the husband filed a motion to provide discovery and avoid sanctions. In that motion, the husband alleged that the records sought by the wife were voluminous and would place an undue burden on the husband. The husband, “in an attempt to make a good faith effort to resolve this matter,” proposed “to allow the [wife] to visit his place of business and inspect the records.” The husband further proposed that the wife could take “any summary financial data” but that specific records could not be taken. On January 6, 2009, the trial court granted the husband’s request for a continuance, and it set the final hearing for April 6, 2009. On January 8, 2009, the trial court denied the husband’s pending motions as moot.

On January 16, 2009, the wife filed an application for entry of default, a supporting affidavit signed by the wife’s attorney, and testimony of the wife in the form of a signed affidavit. The wife requested that the trial court enter default against the husband for his failure to provide discovery responses and for his failure to comply with the trial court’s orders. In the supporting affidavit, the wife’s attorney stated that the husband had failed to comply with the trial court’s December 8, 2008, order that required the husband to respond to the wife’s discovery requests by December 22, 2008. The "wife, in her supporting affidavit, stated that she and the husband were over the age of 19, that they were residents of Morgan County, that she had resided in Morgan County for more than six months immediately preceding the filing of her complaint for a divorce, that she and the husband were married on June 10, 1995, that they had separated on August 20, 2007, that two children had been born of the marriage, that she was not pregnant, that the husband had committed acts of adultery, that she and the husband were incompatible, and that there was no possibility of reconciliation between the parties.

The next entry in the case-action summary is the entry of a “final decree of divorce” by the trial court on January 27, 2009. The judgment stated that the cause had been submitted on the wife’s complaint for a divorce, the husband’s answer and counter-complaint for a divorce, the wife’s motion to compel and motion for sanctions, the wife’s second motion for sanctions, and the trial court’s orders dated November 13 and December 13, 2008. In its judgment, the trial court held that the wife was “entitled to the relief prayed for in said Complaint and subsequent motions for sanctions.” The trial court dismissed the husband’s counterclaim for a divorce and divorced the parties on the ground of adultery, awarded sole legal and physical custody of the children to the wife, ordered the husband to pay child support for the children in the amount of $1,669.84 a month, and ordered a specific division of the parties’ marital property and debts.

On February 13, 2009, the husband filed a motion to set aside the divorce judgment, to grant a final hearing, and to hold the wife in contempt. The husband argued, among other things, that he had filed answers to the wife’s interrogatories, that he had offered “to set up a table in the back of his store to allow the documents to be reviewed,” and that the “testimony” of the wife was “devoid of merit.” The husband requested relief in the form- of a final hearing.

The trial court held a hearing on the husband’s motion to set aside the divorce judgment on April 28, 2009. On May 11, 2009, the trial court entered an order denying the husband’s motion to set aside the divorce judgment. In its order, the trial court stated that “counsel for the [husband] admitted that the [husband] was in default” and that the wife’s counsel had argued that “the law supported the [trial] court’s entry of default against the [husband] for all relief requested by the [wife] and dismissal of the [husband]’s counterclaim.” The trial court found that the husband never had filed an objection to the wife’s discovery requests and that the husband had failed to comply with the trial court’s November 13, 2008, order by December 22, 2008. The husband timely filed a notice of appeal to this court.

Issues

On appeal the husband raises several issues for review by this court. First, the husband argues that there was no evidence to support the divorce judgment. Specifically, he challenges the finding of adultery, asserting that there was no evidence to support that finding, and he challenges the trial court’s order regarding child support because, he asserts, there was no evidence to support the trial court’s determination of his monthly gross income. The husband also argues that the divorce judgment violated Rule 55(e), Ala. R. Civ. P., and Rule 43(a), Ala. R. Civ. P. Finally, the husband challenges the trial court’s determination that he failed to comply with the court’s orders regarding the wife’s discovery requests.

Discussion

A. The Husband’s Noncompliance with Discovery Orders

We will address the last issue raised by the husband first. The husband argues that he was in substantial compliance with the trial court’s orders compelling his response to the wife’s discovery requests, including her interrogatories and her requests for production of documents, and that there was insufficient evidence to support the trial court’s judgment regarding his compliance with the court’s discovery orders.

‘It is well settled that the decision whether to enter a Rule 41(b)[, Ala. R. Civ. P.,] dismissal is within the sound discretion of the trial court, and such a dismissal will be reversed only if the trial court exceeded its discretion. Atkins v. Shirley, 561 So.2d 1075, 1077 (Ala.1990); Riddlesprigger v. Ervin, 519 So.2d 486, 487 (Ala.1987); State ex reí S.M. v. A.H., 832 So.2d 79, 80 (Ala.Civ.App.2002); and Coulter v. Stewart, 726 So.2d 726, 728 (Ala.Civ.App.1999). However, because dismissal with prejudice is a drastic sanction, it should be applied only in extreme situations. Smith v. Wilcox County Bd. of Educ., 365 So.2d 659, 661 (Ala.1978). Therefore, this court will carefully scrutinize orders dismissing an action with prejudice and occasionally will find it necessary to set them aside. Id. In reviewing the trial court’s dismissal of an action, we must determine whether the ruling is supported by the evidence contained in the record. Nash v. Cosby, 597 So.2d 209, 210 (Ala.1992); Atkins v. Shirley, 561 So.2d at 1077; and Riddlesprigger v. Ervin, 519 So.2d at 487.’
“Blake v. Stinson, 5 So.3d 615, 617-18 (Ala.Civ.App.2008). Moreover, ‘ “[t]he decision concerning the appropriate sanction for failure to comply with a pretrial order ... is within the trial court’s discretion, ‘and we review such decisions to determine whether the trial court exceeded its discretion.’ ” ’ Cobb v. Fisher, 20 So.3d 1253, 1257 (Ala.2009) (quoting Vesta Fire Ins. Corp. v. Milam & Co. Constr., Inc., 901 So.2d 84, 105 (Ala.2004)).”

Smith v. Davidson, 58 So.3d 177, 180-81 (Ala.Civ.App.2010).

Rule 37(b)(2)(C), Ala. R. Civ. P., allows a trial court to enter sanctions, including dismissal of an action and entry of a default judgment, against a party who “fails to obey an order to provide or permit discovery.” We note that the husband has not specifically challenged the trial court’s decision to impose the sanction of dismissing his counterclaim for a divorce. The husband only challenges whether there was sufficient evidence to support the trial court’s determination that he failed to comply with its orders compelling him to respond to the wife’s discovery requests. Therefore, this opinion will not address the propriety of the trial court’s decision to dismiss the husband’s counterclaim for a divorce. See Tucker v. Cullman-Jefferson Counties Gas Dist., 864 So.2d 317, 319 (Ala.2003) (quoting Asam v. Devereaux, 686 So .2d 1222, 1224 (Ala.Civ.App.1996)) (holding that “ ‘[w]hen an appellant fails to properly argue an issue, that issue is waived and will not be considered’ ”).

The husband was ordered to respond to the wife’s requests for production of documents and to the wife’s interrogatories. As the wife points out in her brief on appeal, at the hearing to set aside the default judgment of divorce, the husband’s attorney admitted that the husband had failed to comply with the court’s orders regarding the wife’s requested discovery. In his reply brief to this court, the husband responds by stating that “[t]he fact that there had been failures to respond to discovery, more particularly productions requests, cannot be denied.” The husband argues, however, that he was in compliance ■with the trial court’s orders to respond to the wife’s requests for production of documents because he “offered to produce all the documents sought to be produced.”

The husband does not allege that he actually produced the requested documents to the wife, and he cites no authority to support his argument that his obligation to respond to the wife’s requests for production of documents was satisfied solely by his proposal to open his business so that the wife could attempt to locate the specific documents that she had requested as much as 10 months earlier. See Rule 28(a)(10), Ala. R.App. P. (requiring an appellant’s argument on appeal to be supported “with citations to the cases, statutes, other authorities, and parts of the record relied on”). “ ‘[Wjhere an appellant fails to cite any authority for an argument, [an appellate court] may affirm the judgment as to those issues, for it is neither [an appellate eourt]’s duty nor its function to perform all the legal research for an appellant.’ Rule 28(a)[ (10) ], Ala. R.App. P.” Kult v. Kelly, 987 So.2d 551, 561 (Ala.2007) (quoting Sea Calm Shipping Co., S.A. v. Cooks, 565 So.2d 212, 216 (Ala.1990)).

Furthermore, the record on appeal does not contain a record of which particular documents that the wife requested from the husband, and we have no way of knowing whether all the documents sought by the wife were of the type that would be kept at the husband’s place of business. It is well established that “[i]t is the duty of the ... appellant[ ] to demonstrate an error on the part of the trial court; this court will not presume such error on the part of the trial court.” G.E.A. v. D.B.A., 920 So.2d 1110, 1114 (Ala.Civ.App.2005) (citing Marvin’s, Inc. v. Robertson, 608 So.2d 391, 393 (Ala.1992)). The husband has not demonstrated that the trial court erred in finding that he had not complied with its orders compelling him to respond to the wife’s requests for production of documents.

“‘Discovery matters are within the trial court’s sound discretion, and [an appellate court] will not reverse a trial court’s ruling on a discovery issue unless the trial court has clearly exceeded its discretion.’” Ex parte Guaranty Pest Control, Inc., 21 So.3d 1222, 1225 (Ala. 2009) (quoting Ex parte Ocwen Federal Bank, FSB, 872 So.2d 810, 813 (Ala.2003)). We cannot conclude that the husband affirmatively demonstrated that the trial court clearly exceeded its discretion when it determined that the husband failed to comply with the trial court’s orders compelling him to respond to the wife’s requests for discovery. The trial court was within its discretion to conclude that the husband’s proposal to allow the wife to come to his business and locate the specific documents she had requested was not an adequate response to the wife’s requests for production of documents. Based on its conclusion that the husband had not complied with the wife’s requests for production of documents by the December 22, 2008, deadline set by the trial court, the trial court was within its discretion to invoke sanctions against the husband pursuant to Rule 37(b), Ala. R. Civ. P.

B. The Divorce Judgment is UnsuppoHed by the Evidence

The husband also argues that the divorce judgment, which was entered in response to the wife’s application for entry of default, was not supported by any evidence. We agree.

The wife filed an application for entry of default and, in support of that application, introduced evidence establishing the jurisdictional facts necessary to support a divorce judgment. However, the wife did not introduce any evidence to establish facts that would support the specific division of property, the award of child support, the custody determination, or any other specific relief that the wife was awarded in the divorce judgment. Therefore, we must reverse the default judgment insofar as it awards specific relief to the wife. See Rule 55(e), Ala. R. Civ. P.

Also, the wife introduced only her conclusory assertion that the husband had committed adultery, and she did not introduce any specific facts supporting that conclusion or any corroborating evidence to support a finding of adultery. In Yates v. Yates, 676 So.2d 365, 366 (Ala.Civ.App.1996), this court held:

“The act of adultery may be proven by circumstantial evidence, but more than a mere suspicion must be created. In addition, the circumstances created must be ‘ “such as would lead the guarded discretion of a reasonable and just man to conclude that the act of adultery has been committed.” ’ Rowe v. Rowe, 575 So.2d 584, 587 (Ala.Civ.App.1991) (citation omitted). The testimony of one spouse as to the other spouse’s confession of adultery is, alone, insufficient to warrant a divorce on the grounds of adultery, and that testimony is admissible only in corroboration of other evidence tending to establish the offense. Percey v. Percey, 617 So.2d 682 (Ala.Civ. App.1992).”

Because the wife did not introduce any evidence to corroborate her conclusory allegation of adultery, we must reverse the default judgment insofar as it granted the divorce on the ground of adultery.

However, because the wife introduced evidence establishing the jurisdictional facts necessary to support a divorce, we affirm the default judgment insofar as it dissolved the bonds of matrimony. We remand this case for further proceedings.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

THOMPSON, P.J., concurs in the result, without writing.

      . The trial court had entered a "standing” pendente lite order on December 27, 2007, that did not address the specific pendente lite relief requested by the parties.

      . The trial court entered a second amended pendente lite order on March 7, 2008, that awarded the wife sole physical custody in addition to sole legal custody.

      . With her motion for sanctions, the wife submitted a letter dated September 26, 2008, that was addressed to the husband's attorney that stated that approximately 9 interrogatories from her first set of interrogatories were not adequately answered and that 21 of her initial requests for production of documents were either unanswered or inadequately answered. The wife also submitted a letter dated October 28, 2008, addressed to the husband's attorney that requested a response to her second set of discovery requests within 7 days.

      . The divorce judgment was not entered in the State Judicial Information System until January 30, 2009.

      .Although the trial court did not specifically declare the divorce judgment to be a "default judgment,” we interpret this statement made by the trial court as confirmation that the trial court intended to enter a judgment by default against the husband as a sanction for his failure to comply with discovery orders, as stated in the trial court’s December 8, 2008, order.

      . We note that Rule 41(c), Ala. R. Civ. P., states that the provisions of Rule 41, Ala. R. Civ. P., apply to the dismissal of a counterclaim.

      . Because we conclude that the trial court did not clearly exceed its discretion in determining that the husband had failed to comply with its orders requiring him to respond to the wife’s requests for production of documents and, pursuant to that finding, that the trial court had authority to invoke sanctions against the husband pursuant to Rule 37, we make no determination regarding whether the husband complied with the trial court's orders compelling him to respond to the wife's interrogatories.
      We note that “[t]he choice of discovery sanctions is within the trial court’s discretion and will not be disturbed on appeal absent gross abuse of discretion, and then only upon a showing that such abuse of discretion resulted in substantial harm to appellant.” Iverson v. Xpert Tune, Inc., 553 So.2d 82, 87 (Ala.1989) (citations omitted). As stated above, the husband has not specifically challenged the trial court's dismissal of his counterclaim for a divorce. Therefore, we will not address that issue.

      . The wife argues that the husband admitted to committing adultery; however, the husband admitted only that he began a "relationship” with a woman "long after the parties separated” without specifying whether the relationship was sexual.


author: THOMAS, Judge. BRYAN, Judge,

text:
    Carl ALLEN v. Gerald Thomas BRIGGS and Ed Briggs Mechanical Contractors, Inc.
    2090289.
    Court of Civil Appeals of Alabama.
    Aug. 13, 2010.
    Rehearing Denied Oct. 15, 2010.

      Robert M. Hill, Jr., Florence; and Steven D. Tipler of Tipler Law Office, Birmingham, for appellant.
    Preston S. Trousdale, Jr., of Jones & Trousdale, P.C., Florence, for appellee Gerald Thomas Briggs.
   THOMAS, Judge.

Carl Allen appeals from a judgment entered on a jury verdict against Gerald Thomas Briggs in the amount of $30,000. Among other things, Allen argues on appeal that the jury’s damages award was inadequate.

On July 12, 2006, Allen was involved in a motor-vehicle accident with a vehicle driven by Briggs. Allen’s vehicle, a pickup truck, rolled down a 12-foot embankment, coming to rest on its top. The rescue team dispatched to the accident scene had to extricate Allen from the vehicle by using what is commonly referred to as “the jaws of life” and by cutting him from his seat-belt harness. Allen was then placed on a backboard with his neck in a brace and placed in a basket that was pulled up the embankment. An ambulance transported Allen to ECM Hospital, where he was admitted to the hospital for a two-day stay.

While at ECM Hospital, Allen was treated first in the emergency room by Dr. Carl Spangler and then by Dr. Gary Hester. Allen had suffered a fractured sternum, and he was evaluated by Dr. William Hea-ton, a cardiologist, to be sure that his heart had not been injured. When he was released from ECM Hospital, Allen was wearing a neck brace.

Two weeks after he was released from the hospital, Allen returned to Dr. Hester for a follow-up visit. Based on Allen’s complaints of neck pain and numbness and tingling in his arms, Dr. Hester referred Allen to Dr. Gerry Adderholt. Allen was not satisfied with Dr. Adderholt’s opinion, so he requested that he be referred to another physician. Dr. Hester then referred Allen to Dr. Franklin Sammons.

Dr. Sammons first saw Allen on August 23, 2006. Dr. Sammons’s deposition testimony indicates that his notes reflect that Allen complained of neck pain when he moved his head or neck and numbness and tingling in his left arm; Dr. Sammons’s notes also reflected that Allen reported not having suffered those symptoms before the accident. Dr. Sammons said that an MRI that Allen had had taken earlier revealed a possible disk herniation at C5-6; showed evidence of bone spurs at C3-4, C4-5, and C6-7; and indicated degenerative changes in Allen’s neck. Based on his examination and review of Allen’s MRI, Dr. Sammons diagnosed Allen with a central herniated disk at C5-6, multilevel disk disease with left cervical radicular syndrome, and possible carpal tunnel syndrome.

Dr. Sammons first attempted to use a cervical epidural block to treat Allen’s symptoms; however, Allen reported only slight relief from the epidural block. According to Dr. Sammons, Allen had positive Tinel’s and Phelen’s signs, indicating compression of his median nerve. Based on that information, Dr. Sammons scheduled Allen for nerve-conduction studies; those studies indicated that Allen suffered from mild upper-extremity carpal-tunnel-syndrome. Dr. Sammons then scheduled Allen for a carpal-tunnel-release surgery.

Allen underwent carpal-tunnel-release surgery on October 12, 2006. At his follow-up visits in December 2006 and January 2007, Allen reported that about half of his pain had resolved after the surgery. When his pain did not further improve, Allen returned to Dr. Sammons on May 14, 2007, still complaining of neck pain and numbness in his arm. Dr. Sammons then ordered that Allen undergo a myelogram, which revealed that Allen’s nerves were being compressed at the C4-5 level by bone spurs and at the C5-6 level as a result of the herniated disk. Based on this information, Dr. Sammons recommended cervical-fusion surgery to Allen.

On July 29, 2007, Allen underwent cervical-fusion surgery. Dr. Sammons removed some of Allen’s bone spurs and the herniated disk, placed a bone plug at C5-6, and placed a metal brace over the area. The surgery was successful; Allen’s symptoms were resolved by the procedure. After being released by Dr. Sammons in December 2007 with instructions that he return if the symptoms returned, Allen had not returned to Dr. Sammons as of May 2009, when Dr. Sammons was deposed.

Because Allen had developed Alzheimer’s disease by the time of the July 31, 2009, trial, most of the trial testimony concerning Allen’s injuries and his reactions to the various treatments came from his wife, Marajuan Allen. Marajuan also related Allen’s employment history, which, she said, had not ever required repetitive use of the wrists or hands. Marajuan testified that Allen had never had any significant complaints of neck pain before the accident; she further denied that he had ever injured his neck before. She also denied that he had suffered numbness or tingling in his arms before the accident.

According to Marajuan, the epidural block did not resolve any of Allen’s symptoms, and even the carpal-tunnel-release surgery did not afford relief from the pain and- tingling, although it did, she said, afford- a modicum of relief from the numbness. The cervical-fusion surgery, however, explained Marajuan, resolved the pain, numbness, and tingling. She said that Allen had stiffness in his neck following the fusion, which, she said, he described as having a permanent crick in his neck. She noted that he also had more limited movement of his neck as a result of the surgery.

On direct examination, Marajuan admitted that Medicare had paid most of Allen’s bills, but she said that it had not paid “the hospital bill.” On cross-examination, Ma-rajuan testified that she and Allen had paid none of the $127,689.42 in medical bills “out of their pocket.” She then agreed that Medicare had paid the largest portion of those bills. Marajuan then said that “the Orthopedic Center [of which Dr. Sammons is a member physician] and Crestwood Hospital” had turned over bills that had gone unpaid to collection agencies. She did not testify regarding the amounts of those unpaid bills.

David Davis, the patient-accounts manager at ECM Hospital, testified that the hospital had charged Allen $13,211.20 for his two-day hospital stay in July 2006. In addition, a total of $800 in X-ray charges had been incurred by Allen in July and August 2006.. Those charges, said Davis, remained unpaid at the time of trial. Davis explained that the hospital had taken out a hospital lien to secure payment of those charges.

In May 2008, Allen sued Briggs; Ed Briggs Mechanical Contractors, Inc. (“EBMC”), Briggs’s employer; State Farm Mutual Automobile Insurance Company (“State Farm”), Allen’s insurer; and several fictitiously named parties, alleging that Briggs had negligently and wantonly operated his vehicle and had struck Allen’s vehicle, resulting in injury to Allen. State Farm filed a “Motion for Nonparticipation” in the case, and it agreed in that motion to be bound by the jury’s verdict as to damages; the trial court granted that motion. EBMC moved for a summary judgment, which was granted in its favor on July 31, 2009. The summary-judgment order concluded: “There being no just cause for delay of entry of judgment, this judgment is hereby made final.” After a trial on August 4, 2009, the trial court entered a judgment as a matter of law in favor of Allen and against Briggs on the issue of liability. After its deliberations, the jury returned a verdict awarding Allen $30,000 in damages; the trial court subsequently entered a judgment on that verdict. After his motion for a new trial was denied, Alen appealed.

Allen first attempts to challenge the summary judgment in favor of EBMC. However, the summary judgment in favor of EBMC was expressly made a final judgment pursuant to Rule 54(b), Ala. R. Civ. P., by the inclusion of some of the language contained in that rule in the summary-judgment order. See Sho-Me Motor Lodges, Inc. v. Jehle-Slauson Constr. Co., 466 So.2d 83, 87 (Ala.1985) (concluding that the statement “[t]he Court further finds there is no just reason for delay in the entry of said final judgment” was sufficient to make a judgment final pursuant to Rule 54(b)); see also Schneider Nat’l Carriers, Inc. v. Tinney, 776 So.2d 753, 755 (Ala.2000) (noting that “if it is clear and obvious from the language used by the trial court in its order that the court intended to enter a final order pursuant to Rule 54(b), then we will treat the order as a final judgment” even though the order may not contain all the language indicating that it is, in fact, an order directing the entry of a final judgment). Although Allen argues on appeal that a Rule 54(b) certification was not proper in this case, we have held that he is precluded from raising that issue now, because, insofar as his appeal is from the summary-judgment order, his appeal comes too late, having been filed more than 42 days after the entry of the summary-judgment order on July 31, 2009. See Lary v. Gardener, 908 So.2d 955, 957 n. 1 (Ala.Civ.App.2005) (citing Bagley v. Mazda Motor Corp., 864 So.2d 301, 316-17 (Ala.2003)); see also Ex parte King, 776 So.2d 31, 38 (Ala.2000) (Lyons, J., concurring specially) (indicating that, in Justice Lyons’s opinion, the remedy for a party who believes that a Rule 54(b) certification is defective is to “timely fil[e] a petition for a writ of mandamus directing the trial judge to set aside the Rule 54(b) certification, possibly as an alternative remedy sought at the same time as an appeal is taken from the order purportedly made final by the Rule 54(b) certification”).

Despite our holding in Lary, the dissent argues that a party should be permitted to raise a challenge to a Rule 54(b) certification on appeal from a subsequently entered judgment. 60 So.3d at 908. The dissent attempts to distinguish Lary on the basis that the plaintiff in Lary did not have a valid challenge to the Rule 54(b) certification. 60 So.3d at 908. However, in Lary we did not discuss the merits of the certification issue; instead, we clearly indicated that the challenge to the Rule 54(b) certification would not be considered because the plaintiffs “challenges are untimely because he did not file a notice of appeal with respect to [the Rule 54(b) certification of the summary] judgment within 42 days of its entry.” Lary, 908 So.2d at 957 n. 1.

However, the dissent’s approach is not without support. An appellate court may raise the impropriety of a Rule 54(b) certification ex mero motu when that judgment is presented in a timely appeal. Gregory v. Ferguson, 10 So.3d 596, 597 (Ala.Civ.App.2008). The right of an appellate court to consider ex mero motu the propriety. of a Rule 54(b) certification stems from its power to determine its own jurisdiction, which jurisdiction flows, in part, from the timely appeal from a final, appealable judgment. See Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So.2d 354, 361 (Ala.2004) (stating, in an opinion dismissing an appeal based on an improper use of a Rule 54(b) certification, that “all parties have overlooked a fundamental flaw in these appellate proceedings — the absence of an appealable judgment”); Gregory, 10 So.3d at 597 (“However, this court may consider [the] issue [of the appropriateness of the Rule 54(b) certification] ex mero motu because the issue whether a judgment or order is sufficiently final to support an appeal is jurisdictional.”). Thus, if a Rule 54(b) certification is determined to have been improperly entered, the judgment so certified is considered to be nonfinal and therefore unable to support an appeal. Dzwonkowski, 892 So.2d at 361. If that is the case, and an improperly certified judgment is not a final judgment because of an improper certification, why should an appellate court be precluded from considering, on appeal from the judgment resolving the remaining claim or claims, the propriety of the certification and, if the certification was improper, the propriety of the underlying interlocutory judgment?

Our research has revealed that only two federal appellate courts have considered this precise issue and that those two courts reached opposite conclusions. See In re Lindsay, 59 F.3d 942, 951 (9th Cir.1995) (holding that “[a] Rule 54(b) certification, right or wrong, starts the time for appeal running”), and Page v. Preisser, 585 F.2d 336, 338 (8th Cir.1978) (holding that “when a district court erroneously certifies a claim as appropriate for immediate appeal under Rule 54(b), a party may raise that claim in a timely appeal from an adverse decision on the remaining claims in the lawsuit”). Although we comprehend the reasoning behind the rule announced in Page, which hinges on the idea that an erroneously certified judgment is, in fact, not a final judgment at all, Page, 585 F.2d at 338, we believe that the better course is to require that a party seeking to challenge the propriety of a Rule 54(b) certification do so in a timely appeal from the certified judgment. As explained in In re Lindsay, “[t]his avoids uncertainty for counsel about when to appeal.” In re Lindsay, 59 F.3d at 951.

Alabama law is well settled — “[a] judgment certified by a trial court pursuant to Rule 54(b) is a final appealable judgment^ and] the certification triggers the running of the 42-day appeal period.” Lewis v. State, 463 So.2d 154, 155 (Ala.1985). To allow a later appeal of a judgment certified as final pursuant to Rule 54(b) in those circumstances in which a party desires to argue that the certification was improper injects uncertainty regarding the time to appeal and the finality of judgments. If a judgment certified as final may be appealed at a later date, the prevailing party is left in limbo, uncertain whether the judgment in its favor is, in fact, final or whether it might, at the time the remaining claim or claims in the action are resolved, be rendered ineffective because the appellate court determines that the Rule 54(b) certification was improper. In addition, if a party waits to appeal the certified judgment because it believes that the certification was improperly granted, that party risks an appellate determination that the certification was, in fact, properly made, with the resulting foreclosure of the right to appeal regarding the certified judgment. See 15A Charles A. Wright et ah, Federal Practice & Procedure § 3914.7 (2d ed. 1992) (explaining that, typically, if a party fails to appeal from a judgment certified as final pursuant to Rule 54(b), Fed. R.Civ.P., the right to review is lost and stating that “a party who believes that a judgment was improperly entered would be better advised to take a protective appeal and urge that the appeal be dismissed”). We therefore reject the rule announced in Page and, consistent with Lary, embrace the holding in In re Lindsay. Thus, insofar as Allen’s appeal relates to the summary judgment entered in favor of EBMC, the appeal is dismissed.

Allen’s other argument on appeal is that the jury’s damages award of $30,000 is inadequate.

“At the outset we note that a jury verdict is presumed to be correct and should not be set aside on the grounds of inadequacy of damages unless the amount is so inadequate as to plainly indicate that the verdict was the result of passion, prejudice, or improper motive. Lartigue v. Fleming, 489 So.2d 583 (Ala.Civ.App.1986). Additionally, a strong presumption of correctness applies to a trial court’s refusal to grant a motion for a new trial, and we will not reverse absent a showing that the verdict was clearly wrong or unjust. La-rtigue, 489 So.2d 583.
“Further, the assessment of damages is a matter largely in the discretion of the jury. Hickox v. Vester Morgan, Inc., 439 So.2d 95 (Ala.1983). However, where liability is proven, the verdict must include an amount at least as high as the uncontradicted special damages, as well as an amount sufficient to make any compensation for pain and suffering. Orr v. Hammond, 460 So.2d 1322 (Ala.Civ.App.1984).”

Nemec v. Harris, 536 So.2d 93, 94 (Ala.Civ.App.1988).

Allen bases his argument that the jury’s damages award fails to compensate him for his substantial injuries on Smith v. Darring, 659 So.2d 678 (Ala.Civ.App.1995). In Smith, this court determined that a jury verdict assessing damages at $500 was inadequate in light of the failure of the defendant to offer evidence indicating that the plaintiffs medical bills, which totalled $2,310.33, had been paid by another source or reimbursed to her. Smith, 659 So.2d at 680. Relying on the abrogation of the collateral-source rule by Ala.Code 1975, § 12-21-45, the Smith court discussed whether the evidence at trial was sufficient for the jury to conclude that all but $500 of the plaintiffs medical expenses had been paid by a collateral source. Id. at 680.

The defendant’s counsel in Smith had asked the plaintiff whether her medical expenses had been paid by another party, to which she responded: “ T guess so — our insurance, medical insurance, we have co-pays that we pay on it.’ ” Id. The defendant’s counsel then had the plaintiff explain that she paid a $20 co-pay for each visit to the physician, thus reducing the amount of the charges for eight physician ■visits from $345 to $160. Id. However, the defendant failed to introduce similar evidence regarding the plaintiffs other medical expenses. Id. Because “[t]he jury was not free to assess damages based on speculation or conjecture,” this court reversed the jury’s $500 damages assessment, noting that the damages awarded were inadequate based on the evidence presented. Id. at 681.

Allen argues that the present case is identical to Smith because Briggs failed to establish that another source paid a specific amount of Allen’s medical expenses. We disagree. As opposed to the equivocal “I guess so” answer from the plaintiff in Smith, Marajuan testified affirmatively on direct examination that Medicare had paid most of Allen’s medical bills but that it had not paid “the hospital bill.” See AMF Bowling Ctrs., Inc. v. Dearman, 683 So.2d 436, 438 (Ala.Civ.App.1995) (holding that the testimony of the plaintiff that 80% of her medical expenses were paid by insurance was sufficient evidence for the jury to exercise its judgment in determining the amount of damages and noting that § 12-21-45 does not require the defendant to produce evidence to prove the exact amount of medical expenses paid by a collateral source). Although Marajuan later testified on cross-examination that certain bills from the Orthopedic Center and Crestwood Hospital were also not paid by Medicare, she never established the particular amount of those outstanding charges. Davis’s testimony established that ECM Hospital had filed a hospital lien on outstanding charges in the amount of $14,011.20. Thus, the jury had before it evidence from Marajuan and Davis indicating that Medicare had paid most of the medical expenses incurred by Allen, that “the hospital bill” had not been paid, and that ECM Hospital bills having a combined total of $14,011.20 had not yet been paid. The jury was not permitted to engage in speculation about the amount of the charges that might be outstanding from the Orthopedic Center or Crestwood Hospital. See Smith, 659 So.2d at 681. Because the evidence at trial supports a conclusion that the jury’s verdict includes an amount sufficient to compensate Allen for his uncontroverted special damages— $14,011.20 — and an amount to compensate him for his pain and suffering, we cannot agree that the jury’s damages award is inadequate.

Because the damages awarded to Allen were not, on the basis of the evidence presented at trial, inadequate to compensate him for his uncontroverted special damages and his pain and suffering, we affirm the judgment entered on the jury’s verdict. We further dismiss this appeal insofar as it relates to the summary judgment in favor of EBMC for the reasons stated earlier in this opinion.

AFFIRMED IN PART; APPEAL DISMISSED IN PART.

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

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

BRYAN, Judge,

concurring in part and dissenting in part.

I concur in the main opinion insofar as it affirms the judgment entered on the jury-verdict; however, I dissent from the main opinion insofar as it dismisses the appeal with respect to the summary judgment in favor of Ed Briggs Mechanical Contractors, Inc. (“EBMC”).

The main opinion dismisses the appeal with respect to the summary judgment in favor of EBMC on the rationale that Allen is precluded from challenging the validity of the trial court’s certification of that summary judgment as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P., because he did not appeal that summary judgment within 42 days after it was certified as a final judgment by the trial court. In support of that holding, the main opinion cites Bagley v. Mazda Motor Carp., 864 So.2d 301 (Ala.2003), and Lary v. Gardener, 908 So.2d 955 (Ala.Civ.App.2005). I disagree with the main opinion’s holding because Allen’s challenge, if meritorious, would mean that the summary judgment was not validly certified and, therefore, did not become a final, appealable judgment until the trial court entered a judgment on the jury verdict. Hence, if Allen’s challenge of the Rule 54(b) certification is meritorious, his appeal is timely with respect to the summary judgment in favor of EBMC, and we should address its merits.

Allen argues that the trial court exceeded its discretion in certifying the summary judgment in favor of EBMC because, he says, issues involved in the claims against EBMC were so intertwined with issues involved in the claims against Gerald Thomas Briggs that separate adjudications of those claims posed an unreasonable risk of inconsistent results. When a trial court exceeds its discretion by certifying a summary judgment as a final judgment despite the fact that the claim adjudicated by the summary judgment involves issues that are so intertwined with issues involved in a claim that remains pending that separate adjudications of those claims would pose an unreasonable risk of inconsistent results, the summary judgment so certified is not a final judgment and will not support an appeal. See Schlarb v. Lee, 955 So.2d 418, 420 (Ala.2006) (holding that “[t]he trial court exceeded its discretion in certifying [a] partial summary judgment [adjudicating two of the plaintiffs three claims] as [a] final [judgment]” because issues involved in those two claims were so intertwined with issues involved in claim that remained pending in the trial court that separate adjudications would pose an unreasonable risk of inconsistent results and dismissing the appeal from the partial summary judgment because “ ‘[a] nonfinal judgment will not support an appeal’”). Thus, if Allen is correct in his argument that the trial court exceeded its discretion in certifying the summary judgment in favor of EBMC as a final judgment pursuant to Rule 54(b) because issues involved in the claims against EBMC were so intertwined with issues involved in the claims against Gerald Thomas Briggs that separate adjudications of those claims posed an unreasonable risk of inconsistent results, the summary judgment did not become a final judgment as a result of the trial court’s invalid certification, see Schlarb, and, therefore, the 42-day period for appealing it did not begin to run until the trial court entered a judgment on the jury verdict.

Neither Bagley nor Lary mandate a different result. In Bagley, the supreme court held that the Bagley’s failure to timely appeal a partial summary judgment that was validly certified as a final judgment pursuant to Rule 54(b) was not excused by the Bagley’s erroneous belief that the trial court’s failure to list the factors it had considered in. certifying the judgment affected the validity of the certification. The supreme court pointed out that the case that had held that a trial court was required to list the factors it had considered in certifying an interlocutory judgment as a final judgment pursuant to Rule 54(b), Brown v. Whitaker Contracting Corp., 681 So.2d 226 (Ala.Civ.App.1996), had been overruled by the supreme court in Schneider National Carriers, Inc. v. Tinney, 776 So.2d 753, 755 (Ala.2000), and that, in any event, Bronm had not held that the failure of the trial court to list the factors it considered in certifying the interlocutory judgment as a final judgment pursuant to Rule 54(b) affected the finality of the judgment. See Bagley, 864 So.2d at 316:

“Brown provided that if the trial court failed to list the factors considered in certifying a judgment as final pursuant to Rule 54(b), the case would be remanded for the trial court to list the factors. The approach advocated in Brown was not reasonably subject to the constniction that the court’s order was not a final, appealable order because it lacked certain phraseology; in order for the , case properly to be remanded, rather than the appeal’s just being dismissed, the judgment would have to be one that would support an appeal.”

(Emphasis added.) Thus, Bagley does not require that we dismiss Allen’s appeal with respect to the summary judgment in favor of EBMC, because the challenge to the certification in Bagley, even if meritorious, would not have deprived the partial summary judgment of finality and, therefore, the appeal was untimely with respect to the partial summary judgment regardless of the merits of the challenge to the certification. In the case now before us, on the other hand, Allen’s challenge to the trial court’s certification of the summary judgment in favor of EBMC, if meritorious, would deprive that summary judgment of finality and would render his appeal timely with respect to that summary judgmént.

In Lary, Lary sued Gardener for negligently causing an automobile accident that damaged Lary’s automobile and sued Gardener’s liability-insurance carrier for allegedly acting in bad faith by failing to investigate the automobile accident and by failing to pay liability benefits under Gardener’s policy to Lary. The trial court entered a summary judgment in favor of Gardener’s liability-insurance carrier. Lary did not appeal that summary judgment within 42 days after it was certified as a final judgment. This court held that Lary’s failure to timely appeal the summary judgment in favor of Gardener’s liability-insurance carrier precluded Lary from challenging the validity of the Rule 54(b) certification on appeal. Although this court did not expressly state the ground upon which Lary challenged the Rule 54(b) certification, it is apparent from the opinion that Lary did not have a valid challenge to the Rule 54(b) certification on the ground that issues involved in his bad-faith claims against Gardener’s liability-insurance carrier were so intertwined with issues involved in his negligence claim against Gardener that separate adjudications would pose an unreasonable risk of inconsistent results — the dispositive issue with respect to Lary’s bad-faith claims was whether he had an insurance contract with Gardener’s liability-insurance carrier that would impose a duty on Gardener’s liability-insurance carrier to act in good faith in its dealings with Lary, see Hicks v. Alabama Pest Servs., Inc., 548 So.2d 148, 150 (Ala.1989) (holding that trial court did not err in entering a summary judgment with respect to the plaintiffs bad-faith claims because there was “absolutely no evidence that [the plaintiff] had an insurance contract with any defendant”), while the issues involved in Lary’s negligence claim against Gardener were whether Gardener negligently operated his automobile and, if so, whether his negligence proximately caused the damage to Lary’s automobile. Thus, Lary does not stand for the proposition that an appellant is precluded from challenging a trial court’s certification of an interlocutory judgment as a final judgment pursuant to Rule 54(b) on the ground that issues involved in the claims adjudicated by the interlocutory judgment are so intertwined with issues involved in claims that remained pending that separate adjudications posed an unreasonable risk of inconsistent results unless the appellant appealed the interlocutory judgment within 42 days after it was certified as a final judgment.

Accordingly, because the summary judgment in favor of EBMC did not become a final, appealable judgment upon its certification as a final judgment pursuant to Rule 54(b) if Allen’s challenge to that certification is meritorious, see Schlarb, and, hence, his appeal would be timely with respect to that summary judgment if his challenge to that certification is meritorious, id., I would address the merits of Allen’s challenge to the validity of the Rule 54(b) certification of the summary judgment in favor of EBMC and, if it were determined that that certification was invalid, I would address the merits of Allen’s challenge to the summary judgment in favor of EBMC.

      . The existence of fictitiously named parties in Allen's complaint does not affect the finality of the judgment entered by the trial court. See Griffin v. Prime Healthcare Corp., 3 So.3d 892, 893 n. 1 (Ala.Civ.App.2008).
      "When there are multiple defendants and the summons (or other document to be served) and the complaint have been served on one or more, but not all, of the defendants, the plaintiff may proceed to judgment as to the defendant or defendants on whom process has been served and, if the judgment as to the defendant or defendants who have been served is final in all other respects, it shall be a final judgment.”
      Rule 4(f), Ala. R. Civ. P.

      . We may consider cases construing a Federal Rule of Civil Procedure when construing a comparable rule in the Alabama Rules of Civil Procedure. Ex parte Scott, 414 So.2d 939, 941 (Ala.1982). Our supreme court has consulted cases construing Rule 54, Fed.R.Civ.P., when construing Rule 54, Ala. R. Civ. P. See, e.g., Burlington Northern R.R. v. Whitt, 611 So.2d 219 (Ala.1992), and Precision American Coip. v. Leasing Serv. Corp., 505 So.2d 380, 381 (Ala.1987).

      . Of course, the time for appeal would be suspended by a timely filed postjudgment motion directed to the certified judgment, see Rule 4(a)(3), Ala. R.App. P. ("The filing of a post-judgment motion pursuant to Rules 50, 52, 55 or 59 of the Alabama Rules of Civil Procedure (ARCP) shall suspend the running of the time for filing a notice of appeal.”), and, therefore, in those circumstances, the time for appeal would expire upon the grant or denial of the postjudgment motion.