author: PER CURIAM.

text:
    Ex parte Michael J. GILLEY and Susan Helms Gilley. (In re Demarius Hughes Aman v. Michael J. Gilley and Susan Helms Gilley).
    1041904.
    Supreme Court of Alabama.
    May 14, 2010.
    Steven K. Brackin of Lewis, Brackin, Flowers <& Johnson, Dothan, for petitioners.
    Submitted on petition only.
   PER CURIAM.

Michael J. Gilley and Susan Helms Gil-ley petitioned this Court for a writ of certiorari to review the Court of Civil Appeals’ decision reversing the trial court’s decision granting the Gilleys a prescriptive easement over Demarius Hughes Aman’s property. See Aman v. Gilley, 55 So.3d 235 (Ala.Civ.App.2005). We granted cer-tiorari review to consider whether the Court of Civil Appeals’ decision conflicts with our precedent concerning the application of the ore tenus rule in a case such as this one. See Rule 39(a)(1)(D), Ala. R.App. P. For the following reasons, this Court reverses the Court of Civil Appeals’ judgment.

Facts and Procedural History

In its opinion, the Court of Civil Appeals summarized the relevant procedural history and the undisputed facts as follows:

“Aman sued the Gilleys, who are coterminous landowners on the southern boundary of Aman’s real property, to quiet title to a 120-acre parcel of real property and to enjoin them from interfering with a fence erected by Aman and her husband. The Gilleys answered, claiming to have paid taxes on a strip of land 20 feet wide and 975 feet long purportedly located within the 120-acre parcel. The Gilleys counterclaimed for a determination of the boundary line between their property and Aman’s property, and they claimed ownership of the strip of land by adverse possession for a period of 10 years. The case was tried before a judge without a jury.
“During the trial, the parties stipulated that the 20 foot by 975 foot strip of land was a public dirt road. At trial, however, the parties disputed the ownership of an additional strip of land (hereinafter ‘the disputed property’) approximately 20 feet wide and approximately 200 feet long located at the end of the dirt road; the Gilleys use the disputed property as a driveway. At trial, the Gilleys claimed to own the disputed property through adverse possession.
“In their posttrial brief, for the first time, the Gilleys claimed to own an easement by prescription over the disputed property. In her posttrial brief, Aman argued to the trial court that the Gilleys had not claimed an easement by prescription before or at trial and that, therefore, they were not entitled to an easement by prescription. Aman specifically directed the court’s attention to Michael Gilley’s trial testimony that the Gilleys were claiming ownership of the disputed property by adverse possession. Aman also argued that the Gilleys had failed to prove that their possession of the disputed property was exclusive and hostile. The trial court entered a judgment finding that ‘the Gilley[s] have acquired an easement or right of way down the roadway including the driveway in question and that the Gilley[s] shall be entitled to use the road and driveway free of any interference from [Aman] or [Aman’s] agents or employees.’ ”

Aman, 55 So.3d at 237.

Before the Court of Civil Appeals, Aman argued that the trial court erred in granting the Gilleys a prescriptive easement because the Gilleys did not allege that they had acquired an easement by prescription in their counterclaim and because Michael Gilley specifically testified at trial that the Gilleys were claiming ownership of the disputed property by adverse possession. As to that argument, the Court of Civil Appeals stated, in pertinent part:

“ ‘At the outset, we note that Rule 54(c) of the Alabama Rules of Civil Procedure gives the trial court the discretion to award any relief a party is entitled to, even if the party has not specifically requested such relief. The rule provides, in pertinent part:
“ ‘ “Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.”
“ ‘The same principle is enunciated by Rule 15(b), [Ala. R. Civ. P.,] where it is stated:
‘““When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.”
“ ‘We find that these provisions make clear the fact that the trial court is empowered with the discretion to award relief to a party, even when such relief is not specifically requested in the complaint. See Awad v. Awad, 54 Ala.App. 154, 806 So.2d 21 (Ala.Civ.App.1975).’
“Beason v. Beason, 571 So.2d 1155, 1156 (Ala.Civ.App.1990). Thus, it was within the trial court’s discretion, if it determined that the issue had been tried by the implied consent of the parties, to award the Gilleys relief not requested in their counterclaim, i.e., an easement by prescription. However, a trial court can grant relief not specifically requested in a complaint or counterclaim only when the party seeking such relief has met its burden of proving the elements of that claim.”

Aman, 55 So.3d at 238.

Aman also argued before the Court of Civil Appeals that the Gilleys failed to meet their burden of proof to establish their claim of an easement by prescription. Specifically, Aman argued that the Gilleys had failed to show that their use of the disputed property was adverse to Aman’s interest. The Court of Civil Appeals agreed- with Aman and reversed the trial court’s judgment, holding:

“A permissive use of lands does not ripen into an adverse use until there has been a repudiation of the permissive use so as to afford the owner notice of an adverse claim. Cotton v. May, 293 Ala. 212, 301 So.2d 168 (1974); Gonzalez v. Naman, 678 So.2d 1152 (Ala.Civ.App.1996). Furthermore, an easement by prescription ‘ “is not established merely by the use of the lands of another for a period of twenty years or more.” ’ Cotton v. May, 293 Ala. at 214-15, 301 So.2d at 170 (quoting West v. West, 252 Ala. 296, 297-98, 40 So.2d 873, 874 (1949)). Accord Carr v. Turner, 575 So.2d 1066, 1067-68 (Ala.1991); Fisher v. Higginbotham, 406 So.2d 888, 889 (Ala.1981); Ford v. Alabama By-Products Corp., 392 So.2d 217, 219 (Ala.1980); Belcher v. Belcher, 284 Ala. 254, 256, 224 So.2d 613, 614 (1969); Loveman v. Lay, 271 Ala. 385, 392, 124 So.2d 93, 98 (1960); Roberts v. Monroe, 261 Ala. 569, 577, 75 So.2d 492, 499 (1954); and West v. West, 252 Ala. 296, 297-98, 40 So.2d 873, 874 (1949).
“The Gilleys’ use of the disputed property was presumed to be permissive. Hollis v. Tomlinson, [585 So.2d 862 (Ala.1991) ]. The Gilleys did not present any evidence to rebut the presumption that their use of the disputed property was permissive. The Gilleys presented only evidence that they had used the disputed property for 26 years as a driveway. However, as stated earlier, the mere use of the disputed property for 20 years or more does not establish an easement by prescription. Cotton v. May, supra; Carr v. Turner, supra; Fisher v. Higginbotham, supra; and Ford v. Alabama By-Products Corp., supra. Therefore, the Gilleys failed to prove adverse use of the disputed property, which is an essential element to establish their entitlement to an easement by prescription.”

Aman, 55 So.3d at 239-40.

The Gilleys then petitioned this Court for certiorari review of the Court of Civil Appeals’ decision. Both the Gilleys and Aman waived their right to file a brief in this Court; thus, this case was submitted solely on the Gilleys’ petition for the writ of certiorari.

Discussion

In their petition before this Court, the Gilleys argue that, in reversing the trial court’s judgment, the Court of Civil Appeals disregarded the ore tenus rule, reweighed the evidence, and substituted its judgment for that of the trial court in determining that the Gilleys’ use of the disputed property was permissive and thus did not satisfy the elements necessary to establish a prescriptive easement.

This Court set forth the elements necessary to establish an easement by prescription in Apley v. Tagert, 584 So.2d 816, 818 (Ala.1991):

“ ‘[T]he claimant must use the premises over which the easement is claimed for a period of twenty years or more, adversely to the owner of the premises, under claim of right, exclusive, continuous, and uninterrupted, with actual or presumptive knowledge of the owner. The presumption is that the use is permissive, and the claimant has the burden of proving that the use is adverse to the owner.’ ”

(Quoting Bull v. Salsman, 435 So.2d 27, 29 (Ala.1983).)

The trial court here found as follows:

“[T]he Gilleys have acquired an easement or right of way down the roadway including the driveway in question and ... the Gilleys shall be entitled to use the road and driveway free of any interference from [Aman] or [Aman’s] agents or employees.”

Although the trial court did not specifically find that the Gilleys’ use of the disputed property was adverse to Aman’s interest in the property, “when a trial court enters a judgment in a case and does not make specific findings of fact, we must assume that the trial court found the facts necessary to support its judgment, unless the findings would be clearly erroneous and against the great weight of the evidence.” Lakeview Townhomes v. Hunter, 567 So.2d 1287, 1289 (Ala.1990).

The Court of Civil Appeals reversed the trial court’s judgment granting the Gilleys a prescriptive easement, holding that “[t]he Gilleys did not present any evidence to rebut the presumption that their use of the disputed property was permissive” and, thus, that “the Gilleys failed to prove adverse use of the disputed property, which is an essential element to establish their entitlement to an easement by prescription.” Aman, 55 So.3d at 239-40. Based on its holding that the appeal presented a question of law in that the Gilleys presented no evidence to show that their use of the disputed property was adverse to Aman’s interest, the Court of Civil Appeals determined that the ore tenus rule did not apply.

The Court of Civil Appeals erred in holding that the Gilleys did not present any evidence indicating that their use of the disputed property was adverse to Aman’s interest. The Gilleys in fact presented evidence upon which the trial court could have properly based its holding that the Gilleys’ use of the disputed property was adverse to Aman’s interest.

In Belcher v. Belcher, 284 Ala. 254, 224 So.2d 613 (1969), the trial court granted a contiguous property owner an easement over a property owner’s land. The trial court based its judgment that the contiguous property owner had adversely used the easement for the required 20-year period upon the following evidence:

“[T]hat for more than twenty years, the occupants of dwellings on [the contiguous property owner’s] land used the road to haul their belongings in and out, that one of them had paid [the other property owner] to pull his automobile out of mudholes three or four times with a tractor when it was stuck on the road, that their children used the road to go to and from school, that their visitors used the road when they used their automobiles to visit them and that the road was the only means of vehicular ingress and egress.”

Belcher, 284 Ala. at 256-57, 224 So.2d at 614-15. This Court affirmed the trial court’s judgment. In affirming the trial court’s decision, we cited West v. West, 252 Ala. 296, 40 So.2d 873 (1949), recognizing that “a private easement is not established merely by the use of the lands of another for a period of twenty years or more. Such use must have been adverse to the owner of the premises over which the easement is claimed.... ” Belcher, 284 Ala. at 256, 224 So.2d at 614. We concluded that “[w]here the cause was heard ore tenus the lower court’s decree will be upheld on appeal unless it is palpably erroneous or manifestly unjust. We cannot say that the decree of the trial court was either plainly erroneous or manifestly unjust.” 284 Ala. at 257, 224 So.2d at 615 (citation omitted).

In the present case, as in Belcher, it is undisputed that the property has been used as the only ingress and egress to the Gilleys’ property for more than 20 years, either by the Gilleys themselves, or by their predecessor in title, Leonard Helms. The Gilleys presented evidence indicating that Helms used the disputed property to access his property without express permission from 1963 to 1975. Helms sold a portion of his property to the Gilleys in 1975, and the Gilleys continued to use the disputed property without express permission from 1976 until January 2003, when Aman erected a fence preventing the Gil-leys from using the disputed property. Helms also testified that he continued to use the disputed property after 1976 to access his land that lay to the west of the Gilleys’ property.

The Court of Civil Appeals appears to have dismissed Helms’s testimony as evidencing his and the Gilleys’ adverse use of the disputed property on the basis of a portion of Helms’s testimony in which he stated that before Aman acquired the property he was not doing anything antagonistic to the interest in the property held by Aman’s predecessor in title. However, when Helms’s testimony is viewed in context, it is not readily apparent that Helms testified that he believed that his use of the disputed property was not adverse to the interest held by Aman’s predecessor in title:

“[Aman’s attorney]: And you and [Aman’s predecessor in title] were friends?
“[Helms]: Right.
“[Aman’s attorney]: Y’all got along well together?
“[Helms]: Yes.
“[Aman’s attorney]: And you were not doing anything antagonistic to [Aman’s predecessor in title’s] interest, were you?
“[Helms]: No.”

As the Gilleys note in their petition before this Court, “[A] review of Mr. Helms’ ... response as to being ‘antagonistic’ to [Aman’s predecessor in title] was limited to the issue of them being friends and not whether he had used the road in a manner that would or would not give rise to a prescriptive easement:” (Gilleys’ petition, at 11.) The trial court certainly could have concluded, as the Gilleys urge in them petition, that Helms’s response during that exchange was not related to his use of the disputed property.

Also pertinent to the adverse use of the disputed property, the Gilleys presented evidence indicating that Helms maintained the disputed property from the time he purchased the property in 1968 until he transferred a portion of his property to the Gilleys in 1975. The Gilleys also presented testimony showing that Mr. Gilley operates an automobile-mechanic business on his property and that all of his customers use the disputed property for ingress and egress. Mr. Gilley also uses the disputed property for ingress and egress of a school bus from his property, which he operates as a bus driver for the Houston County Board of Education, and of “fire department equipment” and an ambulance in his role as chief of the Wicksburg Volunteer Fire Department. The Gilleys also presented evidence showing that utilities personnel, mail carriers, and garbage collectors all used the disputed property for ingress and egress to the Gilleys’ property. Mr. Gilley also testified that he “didn’t feel [he] needed to” ask permission to use the disputed property and that the Gilleys never discussed their use of the disputed property with Aman.

There is undoubtedly some evidence in the record to support the trial court’s holding that the Gilleys have a prescriptive easement over the disputed property. Therefore, the ore tenus rule applies to the trial court’s findings of fact.

When evidence is presented ore tenus and the trial court “‘resolves conflicting questions of fact in favor of one of the parties, its findings will not be disturbed on appeal unless they were clearly erroneous or manifestly unjust.’ ” Lilly v. Palmer, 495 So.2d 522, 525 (Ala.1986) (quoting Scarbrough v. Smith, 445 So.2d 553, 555 (Ala.1984)). “The presumption of correctness [accorded a trial court’s judgment in a boundary-line dispute when its findings are based on ore tenus evidence] is particularly strong in adverse possession cases, because it is difficult for an appellate court to review the evidence in such cases.” Rice v. McGinnis, 653 So.2d 950, 950 (Ala.1995).

The Court of Civil Appeals erred in determining that the ore tenus rule did not apply here. The trial court’s finding that the Gilleys have a prescriptive easement over the disputed property is not clearly erroneous or manifestly unjust. Therefore, the Court of Civil Appeals’ judgment is reversed and the case remanded to that court.

On remand the Court of Civil Appeals must determine whether the parties tried the prescriptive-easement issue by implied consent. As set forth above, the Court of Civil Appeals held that the trial court properly considered the Gilleys’ allegation that they had a prescriptive easement over Aman’s property, which argument was not raised until after the bench trial. Specifically, the Court of Civil Appeals held that “it was within the trial court’s discretion, if it determined that the issue had been tried by the implied consent of the parties, to award the Gilleys relief not requested in their counterclaim, i.e., an easement by prescription.” Aman, 55 So.3d at 238. However, the Court of Civil Appeals never determined whether the issue had been tried by the consent of the parties.

We hold that the evidence supported the trial court’s judgment awarding the Gilleys a prescriptive easement over Aman’s property, if the issue was indeed tried by the implied consent of the parties. Therefore, the Court of Civil Appeals must determine if the prescriptive-easement issue was tried by the implied consent of the parties. If it was tried by such consent, the trial court’s judgment should be affirmed; if not, the trial court’s judgment should be reversed.

Conclusion

Based on the foregoing, the judgment of the Court of Civil Appeals is reversed and the case remanded to the Court of Civil Appeals for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

MURDOCK, J., recuses himself.


source: Caselaw Access Project

author: THOMPSON, Presiding Judge. MOORE, Judge,

license: Public Domain

text:
    Demarius Hughes AMAN v. Michael J. GILLEY and Susan Helms Gilley.
    2031166.
    Court of Civil Appeals of Alabama.
    Aug. 20, 2010.
    Robert H. Brogden, Ozark, for appellant.
    Steven K. Brackin of Lewis, Brackin, Flowers & Johnson, Dothan, for appellees.
   On Remand from the Supreme Court

THOMPSON, Presiding Judge.

This case has been remanded to this court from our supreme court. See Ex parte Gilley, 55 So.3d 242 (Ala.2010). In this court’s original opinion, the facts and procedural history were set forth as follows:

“Demarius Hughes Aman appeals the judgment of the trial court finding that Michael J. Gilley and Susan Helms Gil-ley own an easement across a portion of Aman’s real property. We reverse and remand.
“Aman sued the Gilleys, who are coterminous landowners on the southern boundary of Aman’s real property, to quiet title to a 120-acre parcel of real property and to enjoin them from interfering with a fence erected by Aman and her husband. The Gilleys answered, claiming to have paid taxes on a strip of land 20 feet wide and 975 feet long purportedly located within the 120-acre parcel. The Gilleys counterclaimed for a determination of the boundary line between their property and Aman’s property, and they claimed ownership of the strip of land by adverse possession for a period of 10 years. The case was tried before a judge without a jury.
“During the trial, the parties stipulated that the 20 foot by 975 foot strip of land was a public dirt road. At trial, however, the parties disputed the ownership of an additional strip of land (hereinafter ‘the disputed property’) approximately 20 feet wide and approximately 200 feet long located at the end of the dirt road; the Gilleys use the disputed property as a driveway. At trial, the Gilleys claimed to own the disputed property through adverse possession.
“In their posttrial brief, for the first time, the Gilleys claimed to own an easement by prescription over the disputed property. In her posttrial brief, Aman argued to the trial court that the Gilleys had not claimed an easement by prescription before or at trial and that, therefore, they were not entitled to an easement by prescription. Aman specifically directed the court’s attention to Michael Gilley’s trial testimony that the Gilleys were claiming ownership of the disputed property by adverse possession. Aman also argued that the Gilleys had failed to prove that their possession of the disputed property exclusive and hostile. The trial court entered judgment finding that ‘the Gilley[s] have acquired easement or right of way down the roadway including the driveway in question and that the Gilley[s] shall be entitled to use the road and driveway free of any interference from [Aman] or [Aman’s] agents or employees.’ ”

Aman v. Gilley, 55 So.3d 235, 237 (Ala.Civ.App.2005).

In addressing the issues presented in the parties’ briefs in Aman v. Gilley, supra, this court noted that the Gilleys had not asserted a claim seeking a prescriptive easement in their initial pleadings in this matter but that such a claim could be tried by the implied consent of the parties; this court stated:

“Aman contends on appeal that the trial court erred in granting the Gilleys a prescriptive easement because the Gil-leys did not allege that they had acquired an easement by prescription in their counterclaim and because Michael Gilley specifically testified at trial that the Gilleys were claiming ownership of the disputed property by adverse possession.
“ ‘At the outset, we note that Rule 54(c) of the Alabama Rules of Civil Procedure gives the trial court the discretion to award any relief a party is entitled to, even if the party has not specifically requested such relief. The rule provides, in pertinent part:
“ ‘ “Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.”
“ ‘The same principle is enunciated by Rule 15(b), [Ala. R. Civ. P.,] where it is stated:
“ ‘ “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.”
“ ‘We find that these provisions make clear the fact that the trial court is empowered with the discretion to award relief to a pai'ty, even when such relief is not specifically requested in the complaint. See Awad v. Awad, 54 Ala.App. 154, 306 So.2d 21 (Ala.Civ.App.1975).’

“Beason v. Beason, 571 So.2d 1155, 1156 (Ala.Civ.App.1990). Thus, it was within the trial court’s discretion, if it determined that the issue had been tried by the implied consent of the parties, to award the Gilleys relief not requested in their counterclaim, i.e., an easement by prescription. However, a trial court can grant relief not specifically requested in a complaint or counterclaim only when the party seeking such relief has met its burden of proving the elements of that claim.

“Therefore, we address Aman’s claim that the Gilleys failed to meet their burden of proof to establish them claim of an easement by prescription....”

Aman v. Gilley, 55 So.3d at 238. This court concluded that the Gilleys had not established them right to an easement by prescription because they had failed to prove adverse use of the disputed property; such adverse use is an essential element for a claim seeking the imposition of an easement by prescription. Aman v. Gilley, 55 So.3d at 238-39 (citing Cotton v. May, 293 Ala. 212, 301 So.2d 168 (1974); Carr v. Turner, 575 So.2d 1066 (Ala.1991); Fisher v. Higginbotham, 406 So.2d 888 (Ala.1981); and Ford v. Alabama By Products Corp., 392 So.2d 217 (Ala.1980)).

The Gilleys filed a petition for writ of certiorari to our supreme court. Our supreme court granted the petition and reversed this court’s judgment. Ex parte Gilley, supra. In reaching its holding, our supreme court concluded that this court had failed to apply the ore tenus standard and that “[tjhere is undoubtedly some evidence in the record to support the trial court’s holding that the Gilleys have a prescriptive easement over the disputed property.” Ex parte Gilley, 55 So.3d at 247. The supreme court further held that, although this court had recognized that it was within the trial court’s discretion to determine whether a prescriptive easement existed, see Aman v. Gilley (citing Beason v. Beason, 571 So.2d 1155 (Ala.Civ.App.1990)), this court had failed to decide “whether the issue had been tried by the [implied] consent of the parties.” Ex parte Gilley, 55 So.3d at 247. Accordingly, the supreme court remanded the cause to this court for a determination whether the claim seeking a prescriptive easement was tried by the implied consent of the parties pursuant to Rule 15(b), Ala. R. Civ. P. Id.

In our discussion in Aman v. Gilley, supra, quoted above, concerning whether the issue of a prescriptive easement was tried by the implied consent of the parties, this court noted that the determination whether an issue is tried pursuant to Rule 15(b) is left to the discretion of the trial court. This court then went on to analyze the merits of the claim for a prescriptive easement. Aman v. Gilley, 55 So.3d at 238 (“Therefore, we address Aman’s claim that the Gilleys failed to meet their burden of proof to establish their claim of an easement by prescription.”). Implicit in our proceeding to analyze the issue of the alleged existence of a prescriptive easement was a conclusion that the trial court had, in fact, determined that that issue had been presented to it by the parties’ implied consent pursuant to Rule 15(b).

In order to clarify our original opinion in Aman v. Gilley, supra, we note that that opinion, as well as the supreme court’s opinion in Ex parte Gilley, supra, set forth the evidence the parties had presented with regard to them use of the disputed property and whether their use was permissive or adverse. That evidence fully supports a conclusion that the issue whether the Gilleys had obtained a prescriptive easement was tried by the implied consent of the parties pursuant to Rule 15(b), Ala. R. Civ. P., and that the trial court did not exceed its discretion in treating the issue as having been tried before it. See McCollum v. Reeves, 521 So.2d 13, 16-17 (Ala.1987) (The determination whether an issue has been tried by the implied consent of the parties is within the discretion of the trial court and may be reversed only upon a showing of an abuse of that discretion.).

In compliance with the instructions of the supreme court, we affirm the judgment of the trial court. See Ex parte Gilley, 55 So.3d at 248 (“If [the claim for a prescriptive easement] was tried by [implied] consent, the trial court’s judgment should be affirmed.”).

AFFIRMED.

PITTMAN and THOMAS, JJ., concur.

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

MOORE, J., dissents, with writing.

MOORE, Judge,

dissenting.

To the extent the main opinion concludes that the Gilleys’ claim for a prescriptive easement had been submitted to the trial court by implied consent, pursuant to Rule 15(b), Ala. R. Civ. P., or, alternatively, that the trial court in its discretion could have reached that conclusion, I disagree. See 55 So.3d at 251. I agree with the reasoning on this issue set forth in Judge Murdock’s special writing in Aman v. Gilley, 55 So.3d 235 (Ala.Civ.App.2005) (Murdock, J., concurring in the result).

In his special writing, Judge Murdock stated, in essence, that, when a litigant’s evidence supports the claim alleged as well as other claims not alleged or asserted, the trial court is not authorized to award that litigant relief under each and every claim that might be supported by that evidence unless the opposing party had notice of those claims at trial and was afforded an opportunity to defend against them. See Aman v. Gilley, 55 So.3d at 240 (Murdock, J., concurring in the result). I agree that this is the proper application of Rules 15(b) and 54(c), Ala. R. Civ. P. In his writing, Judge Murdock cited McCollum v. Reeves, 521 So.2d 13, 17 (Ala.1987), and Foy v. Foy, 447 So.2d 158, 162-63 (Ala.1984). Both cases support the proposition stated above.

In their pleadings, the Gilleys expressly sought relief only under a claim of adverse possession. Again at trial, Michael Gilley expressly stated that he was claiming title to the disputed property under a claim of adverse possession. As a result, Aman had no notice that the Gilleys claimed an easement by prescription until the Gilleys filed their postjudgment motion, at which point Aman objected. Because that claim was not raised until after the trial was concluded, Aman had no opportunity to defend against that claim. Thus, I cannot agree that the parties impliedly consented to submit the prescriptive-easement issue to the trial court or that the trial court could have properly exercised its discretion to reach such a conclusion. Because the prescriptive-easement claim was not properly before it, the trial court had no authority to grant the Gilleys relief under that theory, and, therefore, the trial court’s judgment finding that the Gilleys had a prescriptive easement over the disputed property should be reversed. I, therefore, dissent from the main opinion issued by this court on remand from our supreme court.


author: THOMPSON, Presiding Judge. BRYAN, Judge,

text:
    Garry Lee PARKER, Jr. v. Lorie Jane PARKER.
    2071226.
    Court of Civil Appeals of Alabama.
    June 19, 2009.
    Certiorari Denied Aug. 20, 2010 Alabama Supreme Court 1081279.
    Brian Hamilton of McDowell, Beason & Hamilton, P.C., Russellville, for appellant.
    Sheila F. Morgan, Tuscumbia, for appel-lee.
   THOMPSON, Presiding Judge.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(A), Ala.R.App. P.; §§ 30-3-169.3(a) and 30-3-169.4, Ala.Code 1975; Ex parte Bryowsky, 676 So.2d 1322 (Ala.1996); Ex parte Perkins, 646 So.2d 46, 47 (Ala.1994); Steed v. Steed, 877 So.2d 602, 603 (Ala.Civ.App. 2003); Griggs v. Griggs, 638 So.2d 916, 918-919 (Ala.Civ.App.1994); and Colombaro v. Colombaro, 54 Ala.App. 157, 306 So.2d 23 (1975).

The appellee’s request for an attorney fee is granted in the amount of $750.

PITTMAN and THOMAS, JJ., concur.

BRYAN, J., concurs in the judgment of affirmance in part and dissents in part, with writing, which MOORE, J., joins.

BRYAN, Judge,

concurring in the judgment of affirmance in part and dissenting in part.

This action involves a custody dispute and the proposed change of the child’s principal residence. Because I disagree that Lorie Jane Parker (“the mother”) overcame the presumption, found in § 30-3-169.4, Ala.Code 1975, that a change in the child’s principal residence is not in the best interest of the child, I respectfully dissent from the no-opinion affirmance insofar as it upholds the trial court’s implicit finding to the contrary. I also write to point out a troubling flaw in the trial court’s reasoning regarding the decision to allow the child to relocate to Huntsville with the mother. However, I concur with the majority’s decision to affirm the trial court’s judgment insofar as it denied the petition seeking a modification of custody filed by Garry Lee Parker (“the father”).

The father and the mother were divorced in 2004. In the divorce judgment, the mother was awarded physical custody of the parties’ only child. In May 2006, the mother sought to modify the father’s visitation; the father filed a response objecting to the mother’s move, with the child, from Franklin County to Huntsville. The father later filed a counterpetition seeking custody of the child. After an ore tenus hearing, the trial court entered a judgment denying the father’s petition for custody and overruling the father’s objection to the mother’s move to Huntsville.

On appeal, the father argues, among other things, that the trial court erred by failing to apply the Alabama Parent-Child Relationship Protection Act (“the Act”), § 30-8-160 et seq., Ala.Code 1975, specifically the presumption found in § 30-3-169.4, Ala.Code 1975. Section 30-3-169.4 states:

“In proceedings under this article unless there has been a determination that the party objecting to the change of the principal residence of the child has been found to have committed domestic violence or child abuse, there shall be a rebuttable presumption that a change of principal residence of a child is not in the best interest of the child. The party seeking a change of principal residence of a child shall have the initial burden of proof on the issue. If that burden of proof is met, the burden of proof shifts to the non-relocating party.”

In its judgment, the trial court stated, in pertinent part:

“8. The Mother testified that she moved for a better work environment and better benefits. The Father argued that this was not a valid reason [to move] because the Mother took a cut in her hourly rate of pay.
“9. The Mother testified that she is in the process of having a house constructed in the Huntsville, Alabama area. She and the minor child will be living in this house in August 2008.
“10. The minor child will start kindergarten this fall. This means that the minor child will have to remain stable during the school year and the distance between the parents’ homes is too great to share custody on an even basis throughout the year.
“11. The Father testified that because of the move he will not be able to do things with the minor child, such as attend school functions and extracurricular activities, as if the child had not moved. The Father argued that the child would be deprived of that contact with the Father.
“12. The minor child has been seeing a counselor since the Petition to Modify was filed. The counselor is Lynn McLean. Ms. McLean testified that both parties are good parents. She testified that the minor child is well adjusted in her current environment. Ms. McLean testified that the minor child would be devastated if taken from the primary custody of her mother. Ms. McLean ■also testified that the child would benefit from as much contact with both parents as possible.
“13. The Court must now balance the move of the minor child away from the Father against the disruption of the life of the minor child if physical custody is changed. The Court must look out for the best interest of the minor child first and foremost. While equal contact with both parents is in the best interest of the child, the distance between the parents coupled with the child starting school makes this an impossible task. “14. The Court finds that changing physical custody from the Mother to the Father is not in the best interest of the minor child.”

Nothing in the trial court’s judgment leads me to believe that the trial court considered the presumption found in § 30-3-169.4. The judgment makes no mention of the presumption, nor does it state that the mother met her burden to overcome the presumption that relocating the child to Huntsville would not be in the best interest of the child. However, the trial court was not required to make “specific findings pertaining to the parties’ respective burdens of proof under § 30-3-169.4,” and, therefore, I “ ‘must assume that the trial court made those findings necessary to support its judgment.’ ” Clements v. Clements, 906 So.2d 952, 957 (Ala.Civ.App.2005) (quoting Steed v. Steed, 877 So.2d 602, 603 (Ala.Civ.App.2003), citing in turn Ex parte Bryowsky, 676 So.2d 1322 (Ala.1996)).

However, I do not believe that the evidence at trial supported the trial court’s implicit determination that the mother met her burden to overcome the presumption that relocating the child to Huntsville is not in the best interest of the child. From the specific findings of fact the court did include in its judgment, the only facts that could arguably support a finding that the mother met her burden of proof are the facts that the mother was able to secure a job in Huntsville that has a “better work environment and better benefits” than her previous job and that the mother was having a house constructed in Huntsville for her and the child. The mother testified that there were opportunities in Huntsville, such as taking ice-skating lessons, which did not exist for the child in Franklin County. In addition, there was testimony at trial indicating that the child’s maternal grandparents were also moving to the Huntsville area.

However, as the father argued and as the evidence demonstrated, the mother actually took a pay cut by accepting the job in Huntsville. Additionally, the mother did not deny that she had told the father that the reason she was moving to Huntsville was to keep the father separated from the child as much as possible, although she denied that she was actually moving for that purpose. The father testified that he had researched test scores from schools in Franklin County and had compared them to the test scores from schools that the child would be attending in Huntsville; he stated that the test scores from the school systems throughout Franklin County were comparable with the test scores from the schools the child would be attending in Huntsville.

Even viewing these facts in a light most favorable to the mother, the prevailing party at trial, I believe that the trial court exceeded its discretion by implicitly finding that the mother had overcome the presumption that a change in the child’s principal residence was not in the best interest of the child. At most, the mother made a showing that relocating the child would not cause any harm to the child, other than being separated from the father; this is not the same as showing that the relocation is in the child’s best interest.

Our legislature stated that the purpose of the Act was to “promote[ ] the general philosophy in this state that children need both parents, even after a divorce ....” § 30-3-160, Ala.Code 1975. For that reason, the legislature created a burden on the relocating parent to overcome a presumption that relocating a child from his or her primary residence is not in the best interest of the child. In my opinion, the mother failed to prove that changing the principal residence of the child to Huntsville would be in the child’s best interest, and the trial court erred in allowing the child to relocate to Huntsville with the mother.

After reviewing the explicit findings and the language of the trial court’s judgment, I am concerned that the trial court, seemingly, saw only two possible outcomes for this case. The trial court stated in its findings that the child’s counselor had testified that “the minor child would be devastated if taken from the primary custody of her mother.” In paragraph 13 of the judgment, the trial court found that, “[wjhile equal contact with both parents is in the best interest of the child, the distance between the parents coupled with the child starting school makes this an impossible task” (emphasis added). This reasoning leads me to believe that the trial court concluded that there were only two options available: one, to order that the child remain in Franklin County and allow the father to have custody of the child, even though the child’s counselor had testified that that would be “devastating” to the child; or two, to allow the mother to retain custody of the child when she relocated to Huntsville, despite the finding that equal contact with both parents is in the best interest of the child.

In Henderson v. Henderson, 978 So.2d 36 (Ala.Civ.App.2007), this court upheld a trial court’s order refusing to allow a mother to relocate her children outside Alabama but also refusing to grant the father custody of the children. In Henderson, the “mother had testified that if the court did not allow her to relocate with the children, then she would remain in Alabama .... ” 978 So.2d at 40. Likewise, the mother in this case testified that she “would move wherever [she] would need to, to be with [the child].” The mother further testified that she would quit her job in Huntsville if the trial court found that it was not in the child’s best interest to relocate to Huntsville.

As in Henderson, the trial court in this case had the power to refuse to allow the mother to relocate the child to Huntsville. The trial court had already determined that it was in the child’s best interest to have equal contact with the mother and the father. Given the evidence in this case, refusing to allow a change of the principal residence of the child would have promoted the child’s best interest, and it would have comported with the recommendation of the child’s counselor to have custody of the child remain with the mother. Thus, by refusing to allow relocation of the child’s principal residence but permitting the mother to retain custody in Franklin County the trial court would have fulfilled its “duty to scrupulously guard and protect the interests of [the child].” Ex parte Farm, 810 So.2d 631, 638 (Ala.2001) (“in the context of child-custody proceedings, the dominant consideration is always the best interest of the child” (citing Ex parte Johnson, 673 So.2d 410, 413 (Ala.1994))).

For the foregoing reasons, I respectfully dissent from the no-opinion affirmance insofar as it upholds the trial court’s judgment overruling the father’s objection to the mother’s relocation to Huntsville with the parties’ child.

MOORE, J., concurs.


author: THOMAS, Judge. THOMAS, Judge.

text:
    Michael Joe GREEN, Aletha Johnson, and Johnny James Brown v. CITY OF MONTGOMERY.
    2080048.
    Court of Civil Appeals of Alabama.
    July 31, 2009.
    Order Overruling Application for Rehearing Sept. 25, 2009.
    Certiorari Denied Aug. 6, 2010 Alabama Supreme Court 1090038.

      Joe M. Reed of Faulk & Reed, L.L.P., Montgomery, for appellants.
    Jason C. Paulk, City of Montgomery Legal Department, Montgomery, for ap-pellee.
   THOMAS, Judge.

Michael Joe Green, Aletha Johnson, and Johnny James Brown (“the claimants”) appeal from a summary judgment in favor of the City of Montgomery (“the City”) in their action seeking the return of money seized during a traffic stop. We reverse.

On December 6, 2006, Montgomery police officers stopped the claimants as they were traveling through Montgomery on Interstate 65. While issuing the claimants a speeding ticket, the officers smelled a strong marijuana odor and noticed a large amount of cash in a bag on the floorboard behind the passenger seat. When asked how much money was in the bag, the claimants responded, “about $20,000.” The officers asked for permission to search the vehicle, and the claimants did not respond. The officers ordered a K-9 unit to the scene to conduct an open-air search. The search resulted in a positive identification of marijuana in the passenger door. The officers then conducted a full search of the vehicle that produced a small amount of marijuana and additional cash. The officers seized the marijuana and all the cash, totaling $32,353. Johnny James Brown, the claimant closest to the marijuana, was charged with unlawful possession of marijuana in the second degree, a misdemeanor. See § 13A-12-214, Ala.Code 1975.

The difference between first-degree and second-degree unlawful possession is whether the marijuana is for personal use. Id. Despite having charged Brown with the lesser, personal-use offense, the City transferred the seized currency to the federal Drug Enforcement Administration (“DEA”) pursuant to an arrangement whereby the City would receive 80% of the money and the DEA would retain 20% of the money as a fee. This process is known as “adoptive seizure.” See 21 U.S.C § 881 (2002).

The adoptive-seizure process begins when state or local authorities seize property as part of a criminal investigation or arrest. Generally, the state or local officials either make a determination that forfeiture is not possible under state law or conclude that it is advantageous to them to transfer the matter to federal authorities for a federal administrative forfeiture proceeding. See I.R.S. Manual 9.7.2.7.3 (July 25, 2007); Asset Forfeiture Law, Practice, and Policy, Asset Forfeiture Office, Criminal Division, United States Department of Justice, Vol. I (1988) at 38 (cited in Johnson v. Johnson, 849 P.2d 1361, 1363 (Alaska 1993)). Once state or local officials have determined that an adoptive seizure is advantageous, they file a request with federal authorities. The appropriate federal agency then decides whether to accept or reject the request. If the adoptive-seizure request is accepted, the property is taken into the custody of federal agents and federal administrative forfeiture proceedings begin. At the successful conclusion of those proceedings, usually 80% of the forfeited property is given back to the state or local agency.

In the present case, the seizure occurred on December 6, 2006. The City filled out the requisite forms to begin the adoptive-seizure process on December 27, 2006. During the time that the United States Department of the Treasury was reviewing the City’s adoptive-seizure request, the claimants filed a “Complaint and Motion for Release and Return of Seized Money” in the Montgomery Circuit Court on December 29, 2006. The DEA formally adopted the seizure on January 11, 2007, and United States Marshals took custody of the money on January 23, 2007.

One week later, the City removed the claimants’ circuit court action to federal court to address the claimants’ Fourteenth Amendment claim. The claimants subsequently amended their complaint, deleting the Fourteenth Amendment claim and asking that the case be remanded to the Montgomery Circuit Court. The case was remanded on April 17, 2007. However on February 7, 2007, while the case was still in federal court, the claimants were notified of the DEA forfeiture proceeding and made no response.

With the case back in the Montgomery Circuit Court, the claimants filed on April 26, 2007, a motion to dismiss their case; the circuit court granted the motion the same day. Arguing that they had made a clerical error in the caption and that the motion should have been styled as a motion for a summary judgment consistent with the substance of the motion, the claimants convinced the circuit court to reinstate the case on August 3, 2007. In the period between the dismissal and the reinstatement of the claimants’ action, the DEA deposited the seized currency in the Asset Forfeiture Fund.

On April 24, 2008, the City filed a motion for a summary judgment, arguing that the circuit court no longer had jurisdiction over the seized currency. The circuit court granted the City’s motion on May 13, 2008. The claimants filed a timely post-judgment motion, which the circuit court denied on September 3, 2008. The claimants filed a timely notice of appeal with this court on October 15, 2008.

Standard of Review

“An order granting or denying a summary judgment is reviewed de novo, applying the same standard as the trial court applied. American Gen. Life & Accident Ins. Co. v. Underwood, 886 So.2d 807, 811 (Ala.2004). In addition, ‘[t]his court reviews de novo a trial court’s interpretation of a statute, because only a question of law is presented.’ Scott Bridge Co. v. Wright, 883 So.2d 1221, 1223 (Ala.2003). Where, as here, the facts of a case are essentially undisputed, this Court must determine whether the trial court misapplied the law to the undisputed facts, applying a de novo standard of review. Carter v. City of Haleyville, 669 So.2d 812, 815 (Ala.1995).”

Continental Nat’l Indem. Co. v. Fields, 926 So.2d 1033, 1034-35 (Ala.2005).

Discussion

The authority for adoptive seizure, although not explicit, comes from 21 U.S.C. § 881(e)(1)(A), which allows the United States Attorney General, at the conclusion of federal forfeiture proceedings, to return seized property back to the state or local agency “which participated directly in the seizure or forfeiture of the property.” Federal adoption of a seizure has the same effect as if the seizure had originally been made by the United States. See United States v. One Ford Coupe Auto., 272 U.S. 321, 47 S.Ct. 154, 71 L.Ed. 279 (1926).

Federal adoption cannot take place, however, after a state court has already exercised valid in rem jurisdiction over the seized property. This conclusion follows logically from the fact that two courts cannot have concurrent in rem jurisdiction and that the first court to acquire in rem jurisdiction does so to the exclusion of all other courts. See Ex parte Consolidated Graphite Corp., 221 Ala. 394, 397-98, 129 So. 262, 265 (1930) (stating that “[t]he well-established rule is that where the action is in rem, ... that court which first acquires jurisdiction draws to itself the exclusive authority to control and dispose of the res”). Indeed, most federal courts have arrived at the same conclusion. See, e.g., United States v. One 1979 Chevrolet C-20 Van, 924 F.2d 120, 122 (7th Cir.1991) (citing United States v. $79,12349 in United States Cash and Currency, 830 F.2d 94 (7th Cir.1987)), superseded by statute as noted in United States v. Sixty-Two Thousand Six Hundred Dol lars ($62,600.00), 899 F.Supp. 378 (N.D.Ill.1995); Scarabin v. DEA, 966 F.2d 989 (5th Cir.1992). In order for an Alabama court to acquire jurisdiction, the res must be ‘validly seized and brought within the control of the court.’” Garrett v. State, 739 So.2d 49, 52 (Ala.Civ.App.1999) (quoting City of Gadsden v. Jordan, 760 So.2d 873, 875 (Ala.Civ.App.1998), reversed on other grounds, 760 So.2d 877 (Ala.1999)) (emphasis omitted). For the res to be within the control of the court, the court “must have actual or constructive control of the res when an in rem forfeiture suit is initiated.” Republic Nat’l Bank of Miami v. United States, 506 U.S. 80, 87, 113 S.Ct. 554, 121 L.Ed.2d 474 (1992).

The claimants argue that their “Complaint and Motion for Release and Return of Seized Money” initiated an in rem action. They reason that, because concurrent in rem jurisdiction is not allowed, their action vested the state court with jurisdiction before federal jurisdiction attached. Thus, they conclude that the state court acquired jurisdiction to the exclusion of the federal court. The claimants further argue that the DEA administrative forfeiture proceeding was improper, that the circuit court should not have granted the City’s summary-judgment motion on jurisdictional grounds, and that the money is due to be returned to them.

The City contends that the adoptive seizure relates back in time and, accordingly, that federal jurisdiction over the res was acquired first. The City argues, in the alternative, either that the federal proceedings began before the claimants filed their motion for a return of the seized money or that the claimants’ action for the return of the money was not an in rem action. Finally, the City argues that, even if the claimants’ action was an in rem action, the windows of time when the case was removed or dismissed resulted in the circuit court’s relinquishing jurisdiction, thereby allowing the federal authorities to acquire jurisdiction.

The main issues in this case are whether the claimants’ action was an in rem action and when federal jurisdiction attached. Before proceeding to address those issues, however, we must first address initial arguments by both sides. The claimants initially argued that the mere seizure by the Montgomery police officers vested in rem jurisdiction in the state court because there is no state law that authorizes the transfer of the seized property to federal authorities. The claimants further argued that, because the City must point to some state authority for the seizure, the only available authority is § 20-2-93(b), Ala.Code 1975, which provides:

“(b) Property subject to forfeiture under this chapter may be seized by state, county or municipal law enforcement agencies upon process issued by any court having jurisdiction over the property. Seizure without process may be made if:
“(1) The seizure is incident to an arrest or a search under a search warrant or an inspection under an administrative inspection warrant;
“(2) The property subject to seizure has been the subject of a prior judgment in favor of the state in a criminal injunction or forfeiture proceeding based upon this chapter;
“(3) The state, county, or municipal law enforcement agency has probable cause to believe that the property is directly or indirectly dangerous to health or safety; or
“(4) The state, county or municipal law enforcement agency has probable cause to believe that the property was used or is intended to be used in violation of this chapter.”

The City responded by claiming that the currency was not seized in order to be forfeited pursuant to § 20-2-93(b), but rather to be used as evidence in a criminal investigation, and, the City asserted, that use is allowed under the adoptive-seizure doctrine.

The claimants correctly point out that there is no authority other than § 20-2-98 by which, given the circumstances of this case, the City could have seized the currency under state law, and, they contend, § 20-2-93 does not permit the transfer of seized assets to federal authorities. Contrary to the claimants’ arguments, however, § 20-2-93 neither expressly nor impliedly prohibits a state or local law-enforcement agency from transferring seized property to federal authorities. Section 20-2-93(d) provides, in part, that

“[w]hen property is seized under this chapter, the state, county or municipal law enforcement agency may:
“(1) Place the property under seal;
“(2) Remove the property to a place designated by it;
“(3) Require the state, county or municipal law enforcement agency to take custody of the property and remove it to an appropriate location for disposition in accordance with law; and
“(4) In the case of real property or fixtures, post notice of the seizure on the property, and file and record notice of the seizure in the probate office.”

(Emphasis added.) Subsections (d)(2) and (d)(3) provide that state and local officials may transfer seized property to any location they designate. Subsection (d)(3) appears to contemplate that state and local officials may transfer seized property to another governmental entity, so long as the disposition of the property is “in accordance with law.” Notably, subsection (d)(3) does not require that the disposition of seized property be in accordance with Alabama law. Cf DeSantis v. State, 384 Md. 656, 866 A.2d 143 (Md.Ct.App.2005) (holding that a Maryland forfeiture statute similar to the Alabama forfeiture statute does not require state and local officials to obtain a judicial turnover order before delivering currency to the DEA).

In the present case, the City’s police officers stopped the vehicle in which the claimants were traveling and made the seizure without any involvement from federal authorities. Thus, whatever actions the City took, it was acting under the authority of state law. It is clear that the City cannot simply seize property without state authority under the guise of the federal adoptive-seizure process.

“Indeed, almost all of the cases having considered this issue have assumed that state authorities cannot avoid their own state laws when they transfer property to federal officials [pursuant to the adoptive-seizure doctrine]. See, e.g., In re United States Currency, $844,520.00, 136 F.3d [581] at 583-84 [(8th Cir.1998)] (Loken, J., concurring); [United States v.] One 1987 Mercedes Benz Roadster, 2 F.3d [241] at 243-44 [ (7th Cir.1993) ]; [United States v.] One 1979 Chevrolet C-20 Van, 924 F.2d [120] at 122-23 [(7th Cir.1991) ]; Johnson [v. Johnson ], 849 P.2d [1361] at 1363 [(Alaska 1993)]; In re $3,166,199, [337 Ark. 74,] 987 S.W.2d [663] at 667 [ (1999) ]). But see Madewell [v. Downs ], 68 F.3d [1030] at 1040-43 [ (8th Cir.1995) ]; [United States v.] Winston-Salem[/Forsyth County Bd. of Educ.], 902 F.2d [267] at 272-73 [ (4th Cir.1990) ]. The U.S. Department of Justice has also urged deference to state law in this area. See In re United States Currency, $844,520.00, 136 F.3d at 583-84; United States Department Of Justice, Asset Forfeiture Law and Practice Manual, 2-21 to 2-22 (June 1988). We are in accord with these cases, and hold that State Police cannot avoid [state law] merely by asserting its right to request federal adoption and forfeiture .... ”

DeSantis v. State, 384 Md. at 664, 866 A.2d at 148. Having determined that the City could not have seized the currency pursuant to any authority other than § 20-2-93, but that § 20-2-93 does not prohibit the transfer- of seized property to federal authorities, we now return to deciding who had valid in rem jurisdiction.

Our analysis of that issue starts with the question of whether the claimants’ action in the Montgomery Circuit Court was an in rem action. The City contends that, because the action was not nominally against the currency itself and did not expressly seek to invoke in rem jurisdiction, it was, therefore, not an in rem action. The claimants sued the City and two named Montgomery police officers in their official and individual capacities, seeking declaratory and injunctive relief and demanding “an order releasing and returning to them certain personal property belonging to them unlawfully seized by the Montgomery, Alabama Police Department.” The claimants alleged that the police officers had no probable cause to seize the currency because, they asserted, there was no connection between the currency and the charged offense of possession of marijuana for personal use. They further alleged that,

“[although the claimants have continued to lay claim to the money, it remains in the custody of the City ... or its agents, therefore interfering with, and preventing the claimants’ right of dominion over and use of the money and thereby depriving [them] of [them] property without due process of law in violation of the Fourteenth Amendment to the United States Constitution and Article I, section IV of the Alabama Constitution.”

It is well established that a pleading is judged by its substance rather than by its form. See Breaux v. Bailey, 789 So.2d 204 (Ala.2000); King Mines Resort, Inc. v. Malachi Min. & Minerals, Inc., 518 So.2d 714 (Ala.1987); Lockhart v. Phenix City Inv. Co., 488 So.2d 1353 (Ala.1986); Sexton v. Prisock, 495 So.2d 581 (Ala.1986); and Smith v. Tyson Foods, Inc., 884 So.2d 861 (Ala.Civ.App.2003). If the substance of the pleading asserts grounds usually associated with an in rem action, the action should be treated as an in rem action. King Mines, 518 So.2d at 718.

The claimants’ pleading was labeled as a “Complaint and Motion For Release and Return of Seized Money.” The focus of the complaint was clearly the seized currency. Although the City and two of its police officers were named as defendants, the only relief the claimants sought with respect to the officers was that they be “enjoined from harassing, intimidating, threatening or otherwise interfering with the lawful travel habits of the [claimants].” We do not believe that merely naming the City or its officers in the caption of the complaint converted what was essentially an in rem or quasi in rem proceeding with respect to the seized currency into a personal action against the named defendants. Cf. First Nat’l Bank of Columbiana v. State, 403 So.2d 258, 260 (Ala.Civ.App.1981) (noting that state officials seeking forfeiture of seized property are permitted to bring an action “in the name of the State against either the property seized or against the person, if known, in possession when seized”). We hold that the substance of the complaint takes priority over its form and that the claimants’ action was an in rem or quasi in rem action.

The Montgomery Circuit Court obtained jurisdiction through the claimants’ in rem action only if federal jurisdiction was not obtained first. Determining when federal jurisdiction attached will resolve who first acquired in rem jurisdiction. Although Alabama law requires a two-step process of possession and then the filing of an in rem court action, federal forfeiture is administrative and the second step is not required to obtain federal jurisdiction. So long as the state court-has not exercised in rem jurisdiction, federal jurisdiction begins the moment the res is controlled by federal agents. See United States v. $506,231 in United States Currency, 125 F.3d 442 (7th Cir.1997). In the present case, if federal control began the moment the Montgomery Police Department filled out a form to request that the DEA adopt the seizure, then federal jurisdiction was acquired first, to the exclusion of the state court. If federal control occurred at some time after the claimants initiated their action, then the state court acquired jurisdiction first, to the exclusion of the federal authorities. On December 27, 2006, the Montgomery Police Department filled out the request form. Two days later, the claimants filed their in rem or quasi in rem action in state court.

A similar case decided by the United States Court of Appeals for the Seventh Circuit held that federal control does not begin at the initiation of federal proceedings. See United States v. $506,231 in United States Currency, supra. In that case, the City of Chicago seized currency and a “Motion for Return of Seized Property” was filed in state court. 125 F.3d at 445. On the day before the action was filed in state court, the United States had applied for a seizure warrant. While the case in state court was still pending, the United States filed a forfeiture complaint. The federal district court ruled that the money was subject to forfeiture. The Seventh Circuit Court of Appeals, finding that the federal court had asserted control over the res after the state court, reversed, holding that the initiation of federal proceedings one day before the filing of the in rem action in state court did not give the federal court jurisdiction.

In addition to federal caselaw and statutes, federal administrative rules imply that federal control could not have started at the moment the City made the adoptive-seizure request. See I.R.S. Manual 9.7.2.7.3 (stating the requirements for approving an adoptive-seizure request). In addition, a Treasury Department Directive sets out the criteria that “should be met before a Treasury agent agrees to adopt a state or local seizure.” Department of the Treasury Executive Office for Asset Forfeiture, Directive 34 (January 17, 2000) (emphasis added). The Directive further states that a review of the request from the local agency must be performed before the transfer to federal custody. Id. These regulations imply that federal agents do not consider themselves to be in control of the res before they agree to accept a state or local government’s request for an adoptive seizure. Therefore, it cannot be said that the federal government acquired jurisdiction before the initiation of the claimants’ in rem or quasi in rem action.

Because federal control did not begin when the City filed the adoptive-seizure request, it must have begun either at the time the DEA accepted the adoptive-seizure request or at the time the United States Marshals took physical possession of the currency. The applicable federal statute provides:

“Property taken or detained under this section shall not be repleviable, but shall be deemed to be in the custody of the Attorney General, subject only to the orders and decrees of the court or the official having jurisdiction thereof .... ”

21 U.S.C. § 881(c) (emphasis added). The federal government controls the res when it is “taken or detained” during a time when no other court has jurisdiction over the res. As applied to this case, “property taken” refers to the actual possession by United States Marshals. Even if “detained” refers to federal approval of the City’s adoptive-seizure request, both of those events occurred after the claimants’ in rem or quasi in rem action was filed. The approval came 13 days after the initiation of the in rem action, and actual possession began 25 days after the initiation of the action. Therefore, we need not determine precisely which of the two dates would trigger federal control. Here, federal jurisdiction could only have attached after the state in rem action had been filed. Thus, the state court acquired in rem jurisdiction to the exclusion of the federal government.

There are two windows of time when, the City claims, the state court lost jurisdiction and the federal authorities acquired it. The first window occurred after the case was removed to federal court and before it was remanded back to state court. The City removed the case to federal court to address the Fourteenth Amendment claim. The claimants then amended their complaint to delete the Fourteenth Amendment claim and asked that the case be remanded to the Montgomery Circuit Court. While the claimants were waiting for the case to be remanded, the DEA notified them of the federal forfeiture proceedings.

Given that concurrent in rem jurisdiction is not allowed and that federal control of the res is a necessary condition of federal jurisdiction, a valid exercise of federal jurisdiction occurs when the res is taken or detained and the state court is not already exercising in rem jurisdiction. See United States v. $79,123.49, 830 F.2d at 98, in which the United States Court of Appeals for the Seventh Circuit responded to the government’s argument that federal jurisdiction attached by virtue of mere possession of the property:

“The United States argues, first, that the district court had jurisdiction by virtue of the federal government’s possession of the property. This argument goes much too far. Possession obtained through an invalid seizure neither strips the first court of jurisdiction nor vests it in the second. Taylor v. Carryl, 61 U.S. [(20 How.) 583] at 599-600 [(1857)]. To hold otherwise would substitute a rule of force for the principle of mutual respect embodied in the prior exclusive jurisdiction doctrine.”

Here, the federal government possessed the res before removal. Thus, even if we accepted the City’s claim that the “removal window” allowed the federal court to acquire jurisdiction, it is clear that federal agents had improperly attempted to exercise concurrent in rem jurisdiction well before that window had opened. Federal jurisdiction could have attached only if federal agents took or detained the res at a time when no other court had jurisdiction. Here, federal authorities took control of the currency after the in rem action had been filed and when the state court had jurisdiction. If the DEA had initially taken or detained the res during the “removal window,” then the federal court would properly have acquired jurisdiction. The DEA did not, however, take or detain the property at that time. Thus, federal jurisdiction did not attach during the “removal window.” When the federal court remanded the case to state court, it restored state jurisdiction. See Lowe v. Jacobs, 243 F.2d 432 (5th Cir.1957).

The second window of time occurred between the time the case was dismissed and the time it was reinstated. The City contends that the state court lost jurisdiction when the case was dismissed and that the federal government properly acquired jurisdiction before the case was reinstated. The only federal action that occurred during the “dismissal window,” however, was the actual deposit of the currency into the Asset Forfeiture Fund at the conclusion of the federal administrative forfeiture proceedings. The res was not initially taken or detained during this time, and Treasury Department rules explicitly require that the property must be taken or detained before the start of proceedings. See generally Department of the Treasury, Executive Office for Asset Forfeiture, Directive 34 (January 17, 2000). Thus, the City’s position is at odds with the caselaw, statutes, and administrative rules we have previously addressed.

Conclusion

The claimants’ action in state court was an in rem or quasi in rem action, and it invoked state in rem jurisdiction before the federal government attempted to acquire jurisdiction. Federal in rem jurisdiction begins when the res is taken or detained and no other court has previously and properly exercised jurisdiction. Federal control does not begin the moment a state or local entity requests that federal agents adopt a seizure. The City has asserted no mechanism of federal control while the claimants’ action was initially pending in state court, other than its request for an adoptive seizure. The unique issues of removal and dismissal may have created windows of time during which federal in rem jurisdiction could have been obtained. However, both windows opened after the federal government had improperly attempted to exercise concurrent jurisdiction.

Accordingly, the summary judgment is reversed and the cause is remanded so that the claimants may assert any and all defenses to the seizure and forfeiture under state law.

REVERSED AND REMANDED.

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

On Application for Rehearing

THOMAS, Judge.

On application for rehearing, the City of Montgomery (“the City”) takes issue with our holding that the Montgomery Circuit Court acquired in rem or quasi in rem jurisdiction when Michael Joe Green, Ale-tha Johnson, and Johnny James Brown (“the claimants”) filed a “Complaint for Release and Return of Seized Property” in that court. The City cites Madewell v. Downs, 68 F.3d 1030, 1043-44 (8th Cir.1995), for the proposition that

“[a] motion for return of property pursuant to Mo.Rev.Stat. § 542.301 is more analogous to a motion for return of property pursuant to Fed.R.Crim.P. 41(e) than to a state forfeiture or other in rem proceeding .... [and] an action pursuant to Fed.R.Crim.P. 41(e) does not deprive the DEA or the federal court of jurisdiction over a civil forfeiture action.”

Initially, we note that Madewell is an anomaly among the federal cases that have addressed the issue presented by this appeal. See our opinion on original submission, 55 So.3d at 261-62 (quoting DeSantis v. State, 384 Md. 656, 664, 866 A.2d 143, 148 (Md.Ct.App.2005)). Moreover, Made- well is distinguishable because the claimant in Madewell sought return of the property in the context of a criminal case, via a motion that was, as the United States Court of Appeals for the Eighth Circuit observed, more like a Rule 41(e), Fed. R.Crim.P., motion — or what we in Alabama would call a “motion to suppress” the evidence. See Rule 3.13, Ala. R.Crim. P., and Committee Comments thereto.

“ ‘In contrast to the in personam nature of criminal actions, actions in rem have traditionally been viewed as civil proceedings, with jurisdiction dependent upon seizure of a physical object.’ [United States v. One Assortment of] 89 Firearms, [465 U.S. 354] at 363 [ (1984) ], citing Calero-Toledo [v. Pearson Yacht Leasing Co.], 416 U.S. [663] at 684, 94 S.Ct. 2080, 40 L.Ed.2d 452 [ (1974) ].”

United States v. Ursery, 518 U.S. 267, 289, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996).

The application for rehearing is overruled.

APPLICATION OVERRULED.

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

      . Other than § 20-2-93, only two statutory provisions allow for the forfeiture of property. Section 13A-12-200.8, Ala.Code 1975, deals with forfeiture of obscene materials, and § 28-4-286, Ala.Code 1975, deals with the forfeiture of vehicles.


author: PITTMAN, Judge.

text:
    Deidra N. CRUM v. LASALLE BANK, N.A.
    2080110.
    Court of Civil Appeals of Alabama.
    Sept. 18, 2009.
    Rehearing Denied May 14, 2010.
    Certiorari Denied Aug. 6, 2010 Alabama Supreme Court 1091208.

      Theodore L. Hall, Mobile, for appellant.
    Greggory M. Deitsch of Sirote & Per-mutt, P.C., Birmingham; and Jeffrey G. Miller of Sirote & Permutt, P.C., Mobile, for appellee.
   PITTMAN, Judge.

Deidra N. Crum (“the borrower” or “Borrower”) appeals from a summary judgment entered by the Mobile Circuit Court in favor of LaSalle Bank, N.A. (“the assignee”), on its ejectment claim. We affirm.

The operative facts are undisputed. On December 14, 2006, the borrower, in consideration for a loan of $112,800 (“the loan”) from Nationpoint, a division of National City Bank, N.A. (“the lender” or “Lender”), executed a promissory note agreeing to repay the loan to the lender in monthly installments over a 30-year period and also executed a purchase-money-mortgage instrument concerning 2 parcels of real property in Mobile County (“the property”). Although purchase-money-mortgage instruments typically name lenders as mortgagees, the pertinent mortgage instrument executed by the borrower in this case actually named a separate corporation, Mortgage Electronic Registration Systems, Inc. (“MERS”), as the mortgagee of the property. The mortgage instrument contained the following pertinent provisions:

“... MERS is a separate corporation that is acting solely as a nominee for Lender and Lender’s successors and assigns. MERS is the mortgagee under this Security Instrument.
“This Security Instrument secures to Lender: (i) the repayment of the [l]oan, and all renewals, extensions and modifications of the Note; and (ii) the performance of Borrower’s covenants and agreements under this Security Instrument and the Note. For this purpose, Borrower irrevocably mortgages, grants and conveys to MERS (solely as nominee for Lender and Lender’s successors and assigns) and to the successors and assigns of MERS, with power of sale, the ... property....
“... Borrower understands and agrees that MERS holds only legal title to the interests granted by Borrower in this Security Instrument, but, if necessary to comply with law or custom, MERS (as nominee for Lender and Lender’s successors and assigns) has the right: to exercise any or all of those interests, including, but not limited to, the right to foreclose and sell the [property; and to take any action required of Lender including, but not limited to, releasing and canceling this Security Instrument.”

(Emphasis added.) The mortgage instrument further expressly provided that the note, together with the mortgage, could be sold without notice to the borrower and that, upon the borrower’s default, the property could be publicly auctioned under a power of sale.

On February 2, 2008, MERS, as nominee for the lender, executed an assignment in favor of the assignee (acting as a trustee of a designated mortgage-loan trust). That assignment provided, in pertinent part:

“[MERS] hereby assigns unto [the as-signee] the ... Security Deed having an original principal sum of $112,800.00 [plus] interest, secured thereby, [together with all moneys now owing or that may hereafter become due or owing in respect thereof, and the full benefit of all the powers and of all the covenants and provisos therein contained, and [MERS] hereby grants and conveys unto the ... [assignee [its] beneficial interest under the Security Deed.
“To have and to hold the said Mortgage and Note, and also the said property unto the ... [assignee forever, subject to the terms contained in said Mortgage and Note.”

(Emphasis added.)

Upon the borrower’s default, the assign-ee initiated foreclosure proceedings as to the mortgage on the property by giving notice in a newspaper of genei'al circulation in Mobile County. On April 18, 2008, the property was auctioned, and the as-signee placed the highest bid for the property ($118,347.85); after a foreclosure deed was issued to the assignee, the assignee sent to the borrower a demand for possession of the property, but the borrower has failed or refused to surrender the property to the assignee.

On May 6, 2008, the assignee sued the borrower, seeking possession of the property, damages resulting from the borrower’s alleged wrongful detention of the property, and a declaration that the borrower had forfeited her statutory redemption rights by virtue of having failed to vacate the property. After the borrower had answered the complaint, the assignee moved for a summary judgment in its favor; that motion was supported by an affidavit of one of its employees who testified that the property had been lawfully acquired via foreclosure and that the borrower had failed to comply with the assign-ee’s demand for possession. The borrower filed a response in opposition, contending that under the pertinent mortgage and assignment documents (which the borrower filed in the trial court), the assignee had not acquired the power to undertake foreclosure proceedings. Notably, however, the borrower did not submit the note she had executed. The trial court, after a hearing, entered an order stating that the assignee’s summary-judgment motion was to be granted and directed the assignee’s counsel to draft a conforming judgment, which the trial court subsequently entered; from that judgment, the borrower has appealed. The borrower’s appeal was transferred to this court by the Alabama Supreme Court pursuant to Ala.Code 1975, § 12-2-7(6).

The borrower, on appeal, does not dispute that she was in default of her repayment obligations. Rather, in an effort to impugn the validity of the assign-ee’s title, she reiterates as her first issue on appeal her contention, first made in the trial court, that the assignee did not have the power to sell the property in response to her default. Under Ala.Code 1975, § 35-10-12, which superseded Ala.Code 1975, § 35-10-1 (a similarly worded statute), with respect to mortgages executed in 1989 or later, a power to sell lands given in any mortgage “is part of the security” and may be exercised “by any person, or the personal representative of any person who, by assignment or otherwise, becomes entitled to the money thus secured ” (emphasis added). The borrower contends that because MERS, which was specified in the mortgage instrument as the lender’s nominee and as the mortgagee, was not shown to have owned the debt, MERS could not convey any right to the assignee whereby the assignee would, in the words of the statute, have “become[ ] entitled to the money ... secured” by the mortgage. The borrower cites Carpenter v. First National Bank of Birmingham, 236 Ala. 213, 215, 181 So. 239, 240 (1938), as supporting the proposition that “an agent of [a mortgage] holder to whom the mortgage is delivered merely for the purpose of foreclosure, having no ownership of the debt, is not authorized to foreclose in his own name, and execute a deed in his name to the purchaser.”

We perceive two factors that distinguish this case from Carpenter. First, in this case, MERS and the assignee were not delivered a mortgage instrument by a mortgagee “merely for” the purpose of effecting a “foreclosure,” as was apparently the case in Carpenter. MERS was instead expressly acknowledged by the borrower in the mortgage instrument itself as not only having “any or all of [the lender’s] interests” in the mortgaged property, but also as having the power “to take any action required of’ the lender. The mortgage instrument further expressly provided that the note and the mortgage could be sold without prior notice to the borrower, and the assignment by MERS to the assignee of the mortgage, the note, and “all moneys” due was undertaken for consideration that included a $10 payment to MERS. Thus, taken together, the pertinent documents indicate (a) that MERS was authorized to perform any act on the lender’s behalf as to the property, including selling the note and the mortgage to a third party; and (b) that MERS fully exercised that power in favor of the assignee for valuable consideration.

Second, the rule of Carpenter assumes that there has been a divergence in the legal and equitable ownership of a debt and the security for the repayment of the debt. The generally prevailing common-law rule, however, is that “a transfer of a mortgage also transfers the obligation the mortgage secures unless the parties to the transfer agree otherwise.” Restatement (Third) of Property: Mortgages § 5.4(b) (1997); see also id. at comment c, illustration 5 (when mortgage assignment makes no mention of a note, ownership of the note will pass to the assignee with the mortgage). This principle of law is recognized in Alabama as well. See Seabury v. Hemley, 174 Ala. 116, 121, 56 So. 530, 531 (1911) (assignment of mortgage held “broad enough to include the [secured] debt[] in the absence of any evidence showing a separate or different assignment of the note”). Thus, it was stated in Union Bank & Trust Co. v. Thompson, 202 Ala. 537, 538, 81 So. 39, 40 (1919), following Seabury, that no party, other than an innocent purchaser of notes evidencing the secured debt, would be in a position to raise the question “whether or not the debt had been assigned.”

The Restatement acknowledges that the general rule under which a note will be deemed assigned along with a mortgage will apply “[e]xeept as otherwise required by the Uniform Commercial Code.” Restatement (Third) of Property: Mortgages § 5.4(b). In the second issue presented in her brief, the borrower, for the first time, argues that the note she executed was a “negotiable instrument” under Alabama’s Uniform Commercial Code and that the assignee did not properly acquire the note via negotiation. Assuming, without deciding, that Thompson would permit the borrower to question the mechanism by which the assignee acquired the right to exercise the power of sale in the mortgage, it is well settled that an appellate court will not reverse a trial court’s judgment based upon arguments not presented to the trial court and asserted for the first time on appeal. Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992). Even had the borrower’s Uniform Commercial Code argument been properly préserved for appellate review, however, the record does not contain the pertinent note executed by the borrower; thus, we cannot determine, as a factual matter, whether the note contained only a promise to pay money to order at a definite time or whether the note also required the borrower to perform other acts in addition to paying money so as to take the note outside the definition of a “negotiable instrument” under the Alabama Uniform Commercial Code. See Ala.Code 1975, § 7-3-104(a).

In sum, the materials submitted by the assignee in support of its summary-judgment motion made a prima facie showing that it had acquired title to the property via its bid at an auction authorized under its power of sale after the borrower had defaulted on her repayment obligations. Although the borrower attempted in the trial court to rebut the proposition that the assignee had lawfully acquired title by adducing evidence that MERS, the party from whom the assignee had acquired its rights in the property, did not have the authority to exercise the power of sale afforded in the mortgage, there is no genuine issue of material fact that MERS assigned to the assignee all the rights formerly held by it and by the lender. Thus, we conclude that the trial court did not err in rendering a summary judgment in favor of the assignee.

AFFIRMED.

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

      . Although the borrower has sought relief under the United States Bankruptcy Code, the court having jurisdiction over the borrower’s bankruptcy proceedings has expressly permitted the borrower to prosecute her appeal from the trial court's judgment — a fact that was revealed to this court only after the appeal had been submitted for decision.

      . Those facts also render the unreported New York trial-court opinion in LaSalle Bank, N.A. v. Lamy, 12 Misc.3d 1191(A), 824 N.Y.S.2d 769 (table) (Sup.Ct.2006), inapposite.


author: THOMAS, Judge.

text:
    Sherry Boykin DEAL v. Randy Harrison DEAL.
    2080527.
    Court of Civil Appeals of Alabama.
    March 12, 2010.
    Rehearing Denied May 28, 2010.
    Certiorari Denied Aug. 6, 2010 Alabama Supreme Court 1091262.

      Beverly J. Howard, Montgomery, for appellant.
    Floyd Minor and John Olszewski of Minor & Olszewski, L.L.C., Montgomery, for appellee.
   THOMAS, Judge.

On August 24, 2007, Randy Harrison Deal filed a complaint for a divorce, seeking to terminate his marriage to Sherry Boykin Deal. Sherry answered and filed a counterclaim alleging assault and battery.

On September 29, 2008,' the trial court entered a final divorce judgment. According to the trial court’s judgment, Randy was awarded the parties’ marital residence. In addition, the trial court severed all issues relating to Sherry’s assault-and-battery claim, granted Randy’s demand for a jury trial on that claim, and ordered that Sherry’s assault-and-battery claim be resolved in the civil division of the Montgomery Circuit Court. Sherry filed a timely postjudgment motion, arguing that the trial court erred in awarding Randy the marital residence. On November 14, 2008, Randy filed a petition for contempt, alleging that Sherry had not complied with the final divorce judgment because, Randy alleged, Sherry had failed to vacate the parties’ marital residence. On December 18, 2008, the trial court denied Sherry’s post-judgment motion. In addition to denying Sherry’s postjudgment motion, the trial court found Sherry in contempt and ordered Sherry to pay Randy’s attorney’s fees.

On December 23, 2008, Randy filed a postjudgment motion, requesting that the trial court modify its contempt order because, Randy alleged, he had incurred additional expenses due to Sherry’s failure to comply with the court order to vacate the parties’ marital residence. The trial court denied Randy’s postjudgment motion on January 30, 2009. Randy filed a second petition for contempt alleging that Sherry continued to occupy the parties’ marital residence and that she had deliberately damaged numerous items and had taken various items in violation of the court’s order. It does not appear that the trial court has ruled on Randy’s second contempt petition. On March 5, 2009, Sherry filed her notice of appeal to this court.

First, we must determine whether this court has subject-matter jurisdiction over Sherry’s appeal.

“Although neither party to this appeal has raised the issue of this court’s appellate jurisdiction, we must consider whether we have jurisdiction over this appeal, because ‘ “jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.” Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ. App.1997) (quoting Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987)).”

Gullett v. Gullett, 12 So.3d 1211, 1212 (Ala.Civ.App.2008).

In determining whether we have jurisdiction over an appeal, we must examine whether a party has timely filed his or her notice of appeal. Rule 4(a)(1), Ala. R.App. P., provides:

“Except as otherwise provided herein, in all cases in which an appeal is permitted by law as of right to the supreme court or to a court of appeals, the notice of appeal required by Rule 3 shall be filed with the clerk of the trial court within 42 days (6 weeks) of the date of the entry of the judgment or order appealed from.... ”

See also Bice v. SCI Alabama Funeral Home Servs., 764 So.2d 1280, 1281 (Ala.Civ.App.2000) (“A notice of appeal must be filed within 42 days of the entry of the judgment.”); Gamble v. First Alabama Bank, 404 So.2d 688, 689 (Ala.Civ.App.1981)(“The forty-two day period for filing a notice of appeal to this court with the circuit court begins to run from the date on which the circuit court’s final judgment is entered.”).

“However, the time for appeal may be extended where a party files a timely postjudgment motion pursuant to Rule 50, 52, 55, or 59, Ala. R. Civ. P.” Bice, 764 So.2d at 1281. If a party files a timely postjudgment motion, the party has 42 days from the denial of the postjudgment motion to appeal a final judgment. Keeton v. Keeton, 959 So.2d 114 (Ala.Civ.App.2006).

In the present case, following the entry of the final divorce judgment, Randy filed a petition for contempt against Sherry. Following the denial of Sherry’s post-judgment motion, Randy filed a second petition for contempt. Because Randy’s petitions for contempt were filed after the entry of the trial court’s final divorce judgment, each petition for contempt initiated a separate and independent legal proceeding. “[W]hen a party files a contempt motion alleging a violation of the provision of a previously entered final divorce judgment, that contempt proceeding is separate and independent from the action in which the divorce judgment was entered and does not affect the finality of the divorce judgment.” Decker v. Decker, 984 So.2d 1216, 1220 (Ala.Civ.App.2007). Therefore, neither of Randy’s petitions for contempt affected the finality of the divorce judgment.

On December 18, 2008, the trial court denied Sherry’s postjudgment motion, thus beginning the 42-day period in which she had to appeal the trial court’s final divorce judgment. Sherry had until January 29, 2009, to appeal the final divorce judgment. However, Sherry did not file an appeal of the final divorce judgment until March 5, 2009, outside the 42-day window to appeal the final judgment.

Because Sherry did not file her notice of appeal within the 42-day period after the denial of her postjudgment motion, we lack jurisdiction to review her appeal. Therefore, we dismiss her appeal. See Gunnison-Mack v. Alabama State Pers. Bd., 923 So.2d 319, 321 (Ala.Civ.App.2005) (“Because this court cannot acquire jurisdiction over untimely filed appeals, we must dismiss this appeal for lack of appellate jurisdiction.”).

Randy’s request for an attorney fee on appeal is denied.

APPEAL DISMISSED.

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

      . A copy of Sherry's answer and counterclaim does not appear in the record; however, the trial court’s judgment indicates that such a pleading was filed.

      . The trial court’s order also fined Sherry’s counsel for allegedly advising Sherry to remain in the parties’ marital residence despite the provisions of the divorce judgment.