author: MOORE, Judge.

text:
    SULLIVAN & WILLS REAL ESTATE, L.L.C. v. Bobby E. CRUCE.
    2090112.
    Court of Civil Appeals of Alabama.
    April 23, 2010.
    Rehearing Denied June 18, 2010.
    Certiorari Denied Aug. 5, 2011 Alabama Supreme Court 1091370.
    J. Knox Argo and Nicholas Cole Hughes, Montgomery, for appellant.

      Jackson B. Harrison of The Harrison Firm, LLC, Montgomery, for appellee.
   MOORE, Judge.

Sullivan & Wills Real Estate, L.L.C., appeals from a judgment entered by the Montgomery Circuit Court (“the circuit court”) in favor of Bobby E. Cruce. We reverse.

On April 3, 2001, Ricky Armstead and Steve Perry, as “lessor,” entered into a lease (“the lease agreement”) with Dr. Gil-lis Payne, the “lessee,” for certain real property located in Montgomery (“the subject property”). The lease agreement contained the following provision:

“The LESSOR agrees to pay Sullivan & Wills Real Estate, L.L.C. [i]n a prompt and timely manner, a commission of ten percent (5%)[] per month on any and all rents collected by the LESSOR as long as LESSEE pays rent to LESSOR or his assigns even if this lease is not renewed by Sullivan & Wills Real Estate, L.L.C. or if LESSEE or his assigns buys the building LESSOR shall pay a 5% commission to Sullivan and Wills Real Estate, L.L.C.”

On June 4, 2002, Cruce purchased the subject property from Armstead and Perry and was assigned their interest in the lease agreement. Cruce assumed the lease agreement, and, pursuant to the lease agreement, he paid $117.50 as a monthly commission to Sullivan & Wills until the end of the lease term on June 30, 2006. According to Cruce, when the lease expired, Cruce and Dr. Payne entered into a new lease that no longer contained the provision requiring a commission to be paid to Sullivan & Wills.

On April 27, 2007, Sullivan & Wills filed a complaint in the small-claims division of the Montgomery District Court (“the district court”) against Cruce. In its complaint, Sullivan & Wills argued that Cruce had failed to pay the 5% commission due to Sullivan & Wills under the lease agreement for approximately nine months. On January 10, 2008, a trial was held in the district court. On December 29, 2008, the district court entered an order in which it determined that Cruce owed Sullivan & Wills $3,591.85 for unpaid commissions from July 2006 through December 2008 and court costs.

On January 12, 2009, Cruce appealed the district court’s judgment to the circuit court. On April 8, 2009, Sullivan & Wills filed an amendment to its complaint in which it claimed that Cruce owed it monthly commissions for rents due from July 2006 until the time of the filing of the amendment and for any additional amounts that may become due thereafter. On June 16, 2009, Sullivan & Wills filed a motion for a default judgment, in which it argued that neither Cruce nor his counsel had been present at the trial of this matter in the circuit court, which occurred on June 15, 2009. On June 17, 2009, Cruce filed an answer to the amended complaint. Also, on June 17, 2009, Cruce filed a motion to reset the trial date, in which he argued that he had failed to appear at the trial because of excusable neglect; that motion was granted.

A bench trial was held on September 14, 2009. On September 15, 2009, the circuit court entered a judgment in favor of Cruce. On October 7, 2009, Sullivan & Wills filed a motion to alter, amend, or vacate the judgment, which included a request for a hearing on the motion. The circuit court denied that motion without a hearing on October 23, 2009. Sullivan & Wills filed a notice of appeal to this court on October 27, 2009.

In the present case, the record before us reveals that no ore tenus testimony was taken. Rather, the circuit court clearly considered the filings of both parties and the arguments of counsel at the hearing on September 14, 2009, when counsel for both parties stipulated to the facts and agreed that the question before the circuit court was a question of law.

“ ‘[W]here a trial court does not receive evidence ore tenus, but instead makes its judgment based on the pleadings, exhibits, and briefs, the ore tenus standard’s presumption of correctness does not apply to the trial court’s factual findings and it is the duty of the appellate court to judge the evidence de novo.’

Hale v. Hale, 878 So.2d 313, 319 (Ala.Civ.App.2003) (quoting Ex parte Horn, 718 So.2d 694, 705 (Ala.1998)). As a result, we apply a de novo standard of review and no presumption of correctness is afforded the decision of the circuit court.

On appeal, Sullivan & Wills contend that the circuit court erred by finding in favor of Cruce. Relying on Glover v. Irving Winter Co., 595 So.2d 881 (Ala.1992), Sullivan & Wills assert that Cruce was bound by the lease agreement to continue remitting a 5% commission to Sullivan & Wills beyond the term of the lease agreement so long as Dr. Payne continued to pay rent on the subject property. In Glover, the lessor entered into a lease of real property with the lessee that provided benefits to the real-estate broker, including a professional lease fee of 5% of the rental amount received so long as either the “ ‘tenant or assignee’ ” continued to occupy the premises and a professional fee of 7% of the sales price if the property was sold to the lessee occupying the property “ ‘during the term of the Lease, or any extension thereof, or within a period of thirty days after the termination of same.’ ” 595 So.2d at 882. Upon the expiration of the original lease, Glover, who had purchased the property from the original lessor, entered into a new lease agreement with the same lessee; the new lease changed some of the terms of the lease, including the clause entitling the real-estate broker to professional fees. Id. at 882-83. The new lease was extended once more, but, before the expiration of that lease, the property was purchased by a third party who, in turn, leased the property to the original lessee for a nominal amount and, pursuant to that lease, provided that, if that lease was not terminated before the end of its term, the purchaser would transfer the title of the property to the original lessee. Id. at 883.

In determining that the original lessor was required to remit a professional fee of 7% of the sales price to the real-estate broker upon the sale of the property to the third party, the court in Glover stated:

“ ‘The owner and broker are free to frame their agreement as they see fit and may make the broker’s commission dependent upon whatever conditions they agree upon so long as such conditions are not unlawful or contrary to public policy. Fischer v. Patterson, 97 N.H. 318, 86 A.2d 851 (1952).’ ”

595 So.2d at 886 (quoting Mellos v. Silverman, 367 So.2d 1369, 1371 (Ala.1979)). Although the original lessee was not the ultimate purchaser of the property, the Alabama Supreme Court determined that the original lessee owned the equitable title to the property and would ultimately own the property outright. Id. at 886. Thus, because the real-estate broker was the broker for the original lease and had sparked the original lessee’s original interest in the property, the Alabama Supreme Court determined that the real-estate broker was entitled to the professional fee under the original lease. Id. at 886.

In the present case, Cruce purchased the subject property and was assigned the interest in the lease agreement with Dr. Payne. Unlike in Glover, it is undisputed in the present case that the original lessee, Dr. Payne, continued to lease the subject property upon the expiration of the original lease. Thus, the pertinent question is whether the terms of the original lease bind Cruce to continue to remit a 5% commission to Sullivan & Wills upon the expiration of the original lease pursuant to the terms of the lease agreement.

Citing Anderson v. Howard Hall Co., 278 Ala. 491, 179 So.2d 71 (1965), and Harris v. Board of Water & Sewer Commissioners of the City of Mobile, 294 Ala. 606, 320 So.2d 624 (1975), Cruce argues on appeal that Sullivan & Wills was an incidental third-party beneficiary to the lease agreement because it was not positioned to directly benefit from the lease agreement and, thus, according to Cruce, it cannot claim a benefit that flows from the lease agreement or maintain an action once the original lease expired. We disagree. Both Anderson and Harris make clear that “one for whose benefit a valid contract has been made, although that person is not a party thereto and does not furnish any consideration therefor, may maintain an action on the contract against the promis-sor,” Harris, 294 Ala. at 611, 320 So.2d at 628, but “the contract must have been intended for the direct benefit of the third person, as distinguished from a mere incidental benefit to him, in order to entitle such third person to sue for a breach of the contract.” Anderson, 278 Ala. at 494, 179 So.2d at 73.

In the present case, Sullivan & Wills is specifically and directly named in the lease agreement; pursuant to the terms of the lease agreement, Sullivan & Wills was to receive a 5% commission of all rents paid by Dr. Payne to the lessor. Thus, we conclude that the lease agreement intended for Sullivan & Wills to be directly benefited, and Sullivan & Wills is entitled to sue for a breach of that lease agreement. As a result, Cruce’s argument that Sullivan & Wills is an incidental beneficiary is without merit. Under the terms of the lease agreement, Sullivan & Wills was entitled to bring a cause of action against Cruce, regardless of the fact that the term of the original lease had ended. Based on Glover, we conclude that Sullivan & Wills is entitled to the 5% commission so long as Dr. Payne continues to pay rent for the subject property to Cruce or his assigns. We therefore reverse the judgment of the circuit court and remand the case for further proceedings consistent with this opinion.

Sullivan & Wills also argues on appeal that the circuit court erred in denying its postjudgment motion without conducting a hearing. “Our appellate courts have held that, subject to certain exceptions, a trial court errs when it fails to afford a party a hearing when requested in a postjudgment motion if that motion has probable merit.” B.B. v. F.P., 984 So.2d 418, 423 (Ala.Civ.App.2007). Because we are reversing the circuit court’s judgment based on the merits of the arguments presented on appeal, however, that argument is moot. See B.B., 984 So.2d at 423.

REVERSED AND REMANDED.

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

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

      . Both parties agree that the agreed-upon commission was 5% and that the lease contained a typographical error requiring a "ten percent" commission.

      . Glover and the real-estate broker were involved in a lawsuit over whether the real-estate broker would continue to receive 5% of the rental amount upon the expiration of the original lease. 595 So.2d at 882. The trial court ruled that the new lease was an extension of the original lease and that that lease was governed by the terms of the original lease and, thus, that Glover was required to pay professional fees to the real-estate broker under the new lease. Id. at 883-84. That decision of the trial court, however, was not at issue in the appeal to the Alabama Supreme Court in Glover.


source: Caselaw Access Project

author: BRYAN, Judge.

license: Public Domain

text:
    BUCO BUILDING CONSTRUCTORS, INC., and St. Paul Fire and Marine Insurance Company v. MAYER ELECTRIC SUPPLY COMPANY, INC.
    2090573.
    Court of Civil Appeals of Alabama.
    Dec. 10, 2010.
    Certiorari Denied Aug. 5, 2011 Alabama Supreme Court 1100362.

      Stephanie White Schmidt and Kori L. Clement of Hare, Clement & Duck, P.C., Birmingham, for appellants.
    Kaye K. Houser and Greggory M. Deitsch of Sirote & Permutt, P.C., Birmingham, for appellee.
   BRYAN, Judge.

Buco Building Constructors, Inc. (“Buco”), and St. Paul Fire and Marine Insurance Company (“St. Paul”) appeal from summary judgments entered in two consolidated actions in favor of Mayer Electric Supply Company, Inc. (“Mayer”). We reverse and remand.

In Buco Building Constructors, Inc. v. Mayer Electric Supply Co., 960 So.2d 707 (Ala.Civ.App.2006) {“Buco ”), this court dismissed an earlier appeal brought by Buco from a judgment entered in civil action no. CV-04-1092 in the Jefferson Circuit Court, Bessemer Division (“the 2004 action”). In Buco, we summarized the factual background and the procedural history of the 2004 action up to the time of that appeal as follows:

“Mt. Pilgrim Missionary Baptist Church (‘the church’) hired Buco to serve as general contractor in the construction of a family life center for the church (‘the project’). Buco contracted with J & J Electric Company, Inc. (‘J & J’), to perform electrical work on the project. J & J used Mayer as a supplier on the project.
“On June 14, 2004, Mayer served Buco and the church with a notice of intent to claim a materialman’s lien. Mayer stated in the notice that it was owed $36,217.82 for materials supplied for the project. On August 6, 2004, Mayer filed a ‘Verified Statement of Lien’ against the church’s property in the Jefferson County Probate Court.
“On August 24, 2004, Mayer sued J & J, alleging nonpayment of goods that Mayer had supplied to J & J related to the project. Mayer also named J & J’s president, Jerry Davis, Jr., as a defendant, alleging that he had guaranteed this debt. In addition, Mayer named Buco and the church as defendants. As to J & J and Davis, Mayer sought money damages; as to the church, Mayer sought an order perfecting its lien on the church’s property and ordering the sale of that property for the payment of the lien. On October 8, 2004, Buco filed a motion to dismiss in which it argued that Mayer had failed to state a claim against it. The trial court denied the motion.
“On October 22, 2004, J & J answered the complaint and asserted a cross-claim against Buco for breach of contract, alleging that Buco still owed it $102,009.19 for work performed on the project. J & J later filed a cross-claim against the church, asserting a lien on the church’s property for the unpaid balance it claimed Buco owed it. Buco eventually filed a cross-claim against J & J, in which it asserted that it incurred costs in the amount of $100,828 due to J & J’s breach of contract.
“On November 22, 2004, based on its contract with J & J, Buco moved the trial court to stay the proceedings and to compel arbitration. On December 7, 2004, Mayer filed a response to Buco’s motion to compel arbitration in which Mayer argued that it could not be forced to arbitrate its claims because it did not have a contractual relationship with Buco.
“On December 17, 2004, Buco executed a ‘Release of Lien Bond’ that provided:
“‘KNOW ALL MEN BY THESE PRESENT: That we, Buco Building Constructors, Inc. as Principal, and St. Paul Fire and Marine Insurance Company, a corporation organized under the laws of the State of MN, and authorized to transact Surety Business in the State of AL as Surety, are held and firmly bound unto Mayer Electric Supply Company, Inc. as Ob-ligee in the sum of Thirty Six Thousand Two Hundred Seventeen Dollars and 82/100 ($36,217.82) lawful money of the United States of America, for the payment of which, well and truly to be made, we bind ourselves, our heirs, legal representatives, successors and assigns, jointly and severally firmly by these presents.
“ ‘WHEREAS, The Principal entered into a contract with Mt. Pilgrim Baptist Church of Fairfield, Alabama
“ WHEREAS, Mayer Electric Supply Company, Inc. has filed a notice of Claim of Lien in Jefferson County, AL, in the Amount of Thirty Six Thousand Two Hundred Seventeen Dollars and 82/100 ($36,217.82) for materials furnished for Mt. Pilgrim Family Life Center, Grasselli Road, Fairfield, AL, Jefferson County, AL
“‘AND WHEREAS, The Principal desired to obtain the release of the aforementioned lien and has requested the Obligee to accept an indemnity bond conditioned as set forth in lieu thereof.
“ ‘NOW, THEREFORE, the condition of this obligation is such, that if the said Buco Building Constructors, Inc. shall pay any judgment that may be rendered against it by any court of competent jurisdiction, in regards to said lien, then this obligation to be void, otherwise to remain in full force and effect.’
“Although, as noted, the bond provided that Buco had requested that Mayer accept an indemnity bond in lieu of Mayer’s lien on the church’s property, there is no indication in the record that Mayer did so.
“On December 21, 2004, Buco renewed its motion to dismiss, arguing that ‘Mayer failed to state any cause of action against Buco in its complaint’ and that, because, when it objected to Buco’s motion to compel arbitration, Mayer admitted that there was not a contractual relationship between Buco and Mayer, ‘there remained] no basis for Mayer’s claims against Buco.’
“On December 22, 2004, Mayer filed a motion for a summary judgment against J & J and Davis. On May 22, 2005, after a hearing on the motion, the trial court granted the motion and entered a summary judgment in Mayer’s favor. In the judgment, the trial court: (1) awarded Mayer a money judgment against J & J and Davis in the amount of $36,217.82, plus interest in the amount of $5,661.75, and an attorney’s fee of $1,645.50; (2) ordered that Mayer’s lien against the church’s property be perfected; and (3) ordered the circuit clerk to sell the church’s property for the payment of the lien. The trial court certified its judgment as final pursuant to Rule 54(b), Ala. R. Civ. P.
“On June 8, 2005, Buco filed a motion to alter, amend, or vacate the judgment. Buco argued that the trial court’s judgment improperly awarded more relief to Mayer than Mayer had sought in its motion for a summary judgment. Buco also argued that the sale of the church’s property for the satisfaction of Mayer’s lien before resolution of Buco’s and J & J’s cross-claims against each other would deprive Buco and the church of their due-process rights. The trial court denied Buco’s motion.”

960 So.2d at 708-10.

We dismissed Buco’s appeal in Buco because we concluded that Buco had not been aggrieved by the trial court’s judgment and, therefore, lacked standing to bring the appeal:

“In the present case, Buco contends that its interests are adversely affected by that aspect of the judgment ordering the sale of the church’s property. In its appellate brief, Buco asserts:
“ ‘[The] purported perfection or establishment of a lien on the [church’s] property and the sale of the property clearly will have an effect on the rights of [the church] and Buco, even though no remedy against [the church] or Buco was requested in the motion for summary judgment.... [The church], as owner of the property will have an obvious detriment, and Buco, which executed a release of lien [bond] ... will in turn be required to pay the amount of the lien.’
“Although, as noted, the record indicates that a representative of Buco signed a document entitled ‘Release of Lien Bond,’ the record does not demonstrate that this bond was effectively substituted as security for the satisfaction of Mayer’s claims in place of Mayer’s lien on the church’s property.
“Alabama Code 1975, § 35-ll-233(b), sets forth the manner by which a bond may be substituted for a lien as collateral for the payment of a debt owed to, among other things, an unpaid supplier of materials to a construction project. That statute provides, in relevant part:
“ ‘(b) Any lien claimed on real property under this division may be transferred by any person having an interest in the real property upon which the lien is imposed or the contract under which the lien is claimed, from such real property to other security by first filing with the court in which the action is brought, a copy of the lien which has been duly filed and recorded as required by law, and by either:
“ ‘(1) Depositing with the court in which the action is brought a sum of money; or
“ ‘(2) Filing with the court a bond executed as surety by a surety insurer licensed to do business in this state, either of which shall be in an amount equal to the amount demanded in such claim of lien plus interest thereon at eight percent per year for three years plus $100.00 to apply on any court costs which may be taxed in any proceeding to enforce said lien.
“ ‘Such deposit or bond shall be conditioned to pay any judgment or decree which may be rendered for the satisfaction of the lien for which such claim of lien was recorded and costs not to exceed $100.00. Upon making such deposit or filing such bond the court shall make and record a certificate showing the transfer of the lien from the real property to the security and mail a copy thereof by registered or certified mail to the lienor named in the claim of lien so transferred at the address stated therein. Within 10 days from the date of the receipt of the said certificate, the lienor may by motion, petition the court in which the action is pending for a hearing on the sufficiency of the amount in question or on the qualifications of the surety insurer. In such an event, the ruling of the court on the said motion, shall be a final determination. Upon the expiration of the said 10 days, or in the event a petition has been filed with the court, upon the determination of the court, and upon filing the certificate of transfer in the court where the lien was filed, the real property shall thereupon be released from the lien claimed and such lien shall be transferred to said security. The court shall be entitled to a fee for making and serving the certificate in the sum of $2.00. Any number of liens may be transferred to one such security.’
“(Emphasis added.)
“In the present case, the only document in the record indicating an attempt by Buco to substitute its promise to pay Mayer’s claim for the lien on the church’s property is the ‘Release of Lien Bond’ that it executed. There is no indication in the record that the bond was filed with the court, as required by § 35-11-233, or that the court issued a ‘certificate showing the transfer of the lien from the real property.’ As a result, the record does not indicate that Buco’s ‘Release of Lien Bond’ was effective to lift Mayer’s lien on the church’s property, nor does it indicate that Buco’s promise to pay Mayer’s claim in lieu of the lien ever became effective.
“We note further that, although Mayer had no contract with Buco and had not made any claim against Buco, the bond itself only obligated Buco to indemnify Mayer in the event of an unpaid monetary judgment in Mayer’s favor against Buco. Section 35-ll-233(b) requires that a bond thereunder ‘be conditioned to pay any judgment or decree which may be rendered for the satisfaction of the lien.’ (Emphasis added.)1
“Given the foregoing, the record does not support Buco’s argument to this court that, because of the judgment in Mayer’s favor, Buco’s execution of the ‘Release of Lien Bond’ requires Buco ‘to pay the amount of the lien.’ We fail to see, therefore, how Buco was aggrieved by the trial court’s judgment in Mayer’s favor, which was directed at a lien on property owned by the church, not Buco. A party that is not aggrieved by a trial court’s judgment cannot appeal from that judgment. See Sho-Me Motor Lodges, Inc. v. Jehle-Slauson Constr. Co., 466 So.2d 83, 88 (Ala.1985); S.W.M. v. D.W.M., 723 So.2d 1271, 1272 (Ala.Civ.App.1998); and Rush v. Heflin, 411 So.2d 1295, 1297 (Ala.Civ.App.1982).
“Because the record does not reflect that Buco was aggrieved by the trial court’s summary judgment in favor of Mayer, it was without standing to appeal that judgment. See Housing Auth. of Uniontown v. Mizell, 368 So.2d 37, 38-39 (Ala.Civ.App.1979). Buco’s lack of standing deprives this court of jurisdiction over the appeal. See Ex parte Fort James Operating Co., 871 So.2d 51, 54 (Ala.2003). Consequently, the appeal must be dismissed.
" 1 We also note that Buco does not appear to qualify as a person with an 'interest in the real property upon which the lien is imposed' or an interest in the contract between Mayer and J & J under which Mayer claimed the lien and that the bond fails to obligate Buco to pay the interest and costs required by § 35-11 — 233(d)."

960 So.2d at 710-12.

While Buco was pending in this court, J & J’s cross-claims and Buco’s cross-claim were resolved in arbitration. Also while Buco’s appeal in Buco was pending, Mayer, on July 10, 2006, demanded that Buco and St. Paul pay Mayer $36,217.82 under the “Release of Lien Bond.” When Buco and St. Paul did not honor Mayer’s demand, Mayer, on September 8, 2006, filed a second civil action, which was docketed by the Jefferson Circuit Court, Bessemer Division, as civil action no. CV-06-1179 (“the 2006 action”). In the 2006 action, Mayer sued Buco and St. Paul, alleging that Buco and St. Paul had breached the Release of Lien Bond by failing to honor Mayer’s July 10, 2006, demand for payment of $36,217.82 under that bond.

On September 25, 2006, Buco moved the trial court to dismiss the 2006 action on the ground that it violated § 6-5-440, Ala. Code 1975. On October 17, 2006, St. Paul also moved to dismiss the 2006 action on the ground that it violated § 6-5-440. On December 20, 2006, Mayer moved the trial court to consolidate the 2004 action and the 2006 action.

On January 11, 2007, this court issued its certificate of judgment in Buco. On June 1, 2007, Mayer amended its complaint in the 2006 action to add a claim seeking to recover $43,525.07 under a “Labor and Material Payment Bond” dated August 21, 2003. In pertinent part, the Labor and Material Payment Bond stated:

“KNOW All MEN BY THESE PRESENTS; that Buco Building Constructors, Inc. ... as Principal, hereinafter called Principal, and, St. Paul Fire and Marine Insurance Company ... as Surety, hereinafter called Surety, are held and firmly bound unto Mt. Pilgrim Baptist Church ... as Obligee, hereinafter called Owner, for the use and benefit of claimants as hereinbelow defined, in the amount of One Million Four Hundred Thirty Three Thousand Seven Hundred Fifty Eight Dollars and 00/100 ($1,433,758.00) for the payment whereof Principal and Surety bind themselves, their heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents.
“WHEREAS, Principal has by written agreement dated April 11, 2003, entered into a contract with Owner for Mt. Pilgrim Family Life Center, Grasselli Road, Fairfield, AL, Jefferson County, AL in accordance with Drawings and Specifications prepared by Charles Williams & Associates, Inc. ..., which contract is by reference made a part hereof, and is hereinafter referred to as the Contract.
“NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION is such that, if Principal shall promptly make payment to all claimants as hereinafter defined, for all labor and material used or reasonably required for use in the performance of the Contract, then this Obligation shall be void, otherwise it shall remain in full force and effect, subject, however, to the following conditions:
“1. A claimant is defined as one having a direct contract with the Principal or with a Subcontractor of the Principal for labor, material, or both, used or reasonably required for use in the performance of the Contract, labor and material being construed to include that part of water, gas, power, light, heat, oil, gasoline, telephone service or rental of equipment directly applicable to the Contract. “2. The above named Principal and Surety hereby jointly and severally agree with the Owner that every claimant as herein defined, who has not been paid in full before the expiration of a period of ninety (90) days after the date on which the last of such claimant’s work or labor was done or performed, or materials were furnished by such claimant, may sue on this bond for the use of such claimant, prosecute the suit to final judgment for such sum or sums as may be justly due claimant, and have execution thereon. The owner shall not be liable for the payment of any costs or expenses of any such suit.
“8. No suit or action shall be commenced hereunder by any claimant:
“a) Unless claimant, other than one having a direct contract with the Principal, shall have given written notice to any two of the following: the Principal, the Owner, or the Surety above named, within ninety (90) days after such claimant did or performed the last of the work or labor, or furnished the last of the materials for which said claim is made, stating with substantial accuracy the amount claimed and the name of the party to whom the materials were furnished, or for whom the work or labor was done or performed. Such notice shall be served by mailing the same by registered mail or certified mail, postage prepaid, in an envelope addressed to the Principal, Owner or Surety, at any place where an office is regularly maintained for the transaction of business, or served in any manner in which legal process may be served in the state in which the aforesaid project is located, save that such service need not be made by a public officer.
“b) After the expiration of one (1) year following the date on which Principal ceased Work on said Contract, it being understood, however, that if any limitation embodied in this bond is prohibited by any law controlling the construction hereof such limitation shall be deemed to be amended so as to be equal to the minimum period of limitation permitted by such law.
“c) Other than in state court of competent jurisdiction in and for the county or other political subdivision of the state in which the Project, or part thereof, is situated, or in the United States District Court for the district in which the Project, or any part thereof, is situated, and not elsewhere.
“4. The amount of this bond shall be reduced by and to the extent of any payment or payments made in good faith hereunder, inclusive of the payment by Surety or mechanics hens which may be filed of record against said improvement, whether or not claim for the amount of such lien be presented under and against this bond.”

On August 22, 2007, the trial court denied the motions to dismiss based on § 6-5-440, which Buco and St. Paul had filed in the 2006 action. On October 29, 2007, Buco moved for a summary judgment in the 2004 action on the ground that Mayer had not purported to state a cause of action against Buco in its complaint in the 2004 action. On November 5, 2007, Buco and St. Paul moved for a summary judgment with respect to Mayer’s claims against them in the 2006 action.

On January 8, 2008, the trial court entered an order granting Buco’s summary-judgment motion in the 2004 action and an order granting Mayer’s motion to consolidate the 2004 action and the 2006 action. On January 28, 2008, the trial court denied Buco and St. Paul’s summary-judgment motion with respect to Mayer’s claims in the 2006 action.

On October 1, 2008, Buco and St. Paul filed a pleading titled “Motion to Dismiss and Motion for Sanctions” (“the October 1, 2008, motion”) in which they moved the trial court to dismiss Mayer’s claims in the 2006 action on the ground that Mayer had released the lien against the church’s property on April 16, 2008, and to impose sanctions against Mayer on the ground that Mayer had continued to prosecute its claim for breach of the Release of Lien Bond despite the church’s failure to substitute the Release of Lien Bond for Mayer’s lien against the church’s property and despite Mayer’s release of the lien. Buco and St. Paul submitted evidence in support of the October 1, 2008, motion. On October 2, 2008, the trial court denied the October 1, 2008, motion.

On July 29, 2009, Mayer moved for a summary judgment against Buco and St. Paul with respect to its claims in the 2006 action, i.e., its claim that Buco and St. Paul had breached the Release of Lien Bond by refusing to honor Mayer’s July 10, 2006, demand for payment of $36,217.82 under the Release of Lien Bond and its claim seeking payment under the Labor and Material Payment Bond. On August 31, 2009, Buco and St. Paul filed a pleading and evidence in opposition to Mayer’s summary-judgment motion. Among other things, Buco and St. Paul asserted that Mayer was not entitled to a summary judgment with respect to its claim asserting breach of the Release of Lien Bond because, they said, this court had held in Buco that the Release of Lien Bond had never become effective.

On January 21, 2010, the trial court entered a summary judgment in favor of Mayer and against Buco and St. Paul in the 2004 action. On February 2,2010, the trial court entered an identical order in the 2006 action. In pertinent part, those orders stated:

“THIS CAUSE coming on to be heard on Mayer Electric Supply Company, Inc.’s (hereinafter ‘Mayer’) Motion for Summary Judgment and the Defendant Buco Building Constructors, Inc. (hereinafter ‘Buco’) and St Paul Fire and Marine Insurance Company[’s] (hereinafter ‘St. Paul’) opposition to [Mayer’s] Motion for Summary Judgment and after hearing argument by counsel of the parties the Court makes the following findings of undisputed ... facts:
“1. Defendant Buco entered into a contract with Mount Pilgrim Baptist Church (hereinafter ‘Church’) for the construction of the Family Life Center (hereinafter ‘Project’) for the Church.
“2. As a part of the contract with the Church, Buco as principal and defendant St. Paul as surety posted a labor and material bond (hereinafter ‘First Bond’) for the Project.
“3. Buco entered into a contract with J & J Electric Co. (hereinafter ‘J & J’) who subsequently purchased materials from Mayer for the Project.
“4. Buco acknowledged receiving from Mayer a Notice of Intent to Claim Materialmen’s Lien on June 17, 2004.
“5. Mayer recorded its Verified Statement of Lien in the Probate Court on August 6, 2004.
“6. On December 17, 2004, Buco and St. Paul executed a Release of Lien [B]ond for the amount of Mayer’s statement of lien and on December 21, 2004, the church made its final payment to Buco of $88,573.00.
“7. Mayer filed suit on its lien and obtained a judgment perfecting its lien on the Church on May 26, 2005.
“8. On July 10, 2006, Mayer made demand under the Release of Lien Bond which was subsequently refused and resulted in the present action.
“The Court makes the following conclusions and findings: [Buco and St. Paul] attempt to raise a disputed issue of fact that the materials Mayer claims to have supplied J & J were not actually incorporated in the Project and, therefore, Mayer has not met its burden as a claimant under the First Bond. However, Buco was a party to the original lien action and failed to raise this as a defense before this Court’s Order rendering a materialmen’s lien in favor of Mayer and therefore is judicially estopped from raising this as a defense to this action. Buco also contends that Mayer failed to bring suit under the First Bond within one year following the date on which Buco ceased to so work on the contract. The Court finds it is unnecessary to reach this issue as it is admitted by Buco in its opposition to Mayer’s Motion that the Release of Lien Bond provided to the Church by [Buco and St. Paul] on December 17, 2004, superseded the First Bond.
“The Court therefore finds that the Release of Lien Bond posted by [Buco and St. Paul] on December 17, 2004, is at the heart of [Mayer’s] Motion for Summary Judgment. This Court must determine whether [Mayer], as a matter of law, is entitled to summary judgment based upon the terms of the Release of Lien Bond. The Court finds it extremely important to its decision that the Release of Lien Bond references not only the Plaintiff Mayer but also the exact amount of Mayer’s lien ($36,217.82), and was given to the Church four days before Buco received a final payment in the amount of $88,573.00. This unpaid balance would have been the amount to which Mayer’s lien would have attached by this Court’s judgment awarding Mayer a materialmen’s lien on May 26, 2005, if Buco had not given the Church the Release of Lien Bond in order to receive its final payment.
“The Court does not find it relevant to its decision that the Release of Lien Bond was not filed in the Probate Court to substitute for Mayer’s lien, as contended by [Buco and St. Paul], The Release of Lien Bond became a contractual obligation at the time it was executed by [Buco and St. Paul] and not by the fact of any recording.
“The Court must therefore look within the four corners of the Release of Lien Bond to determine the obligations of the parties. [Buco and St. Paul] contend that because Mayer released its lien on April 16, 2008, Mayer no longer has a claim. However, the Release of Lien Bond states that the principal, Buco, desired to obtain a release of the aforementioned lien and accepted the obligation under the Release of Lien Bond as a condition of the release. Therefore, Buco cannot claim this now as a defense. It is clear from the language of the bond that Buco and St. Paul would be bound to Mayer until one of two things occurred: (1) either Mayer is paid or (2) Buco pays a judgment rendered against it. Neither of these circumstances has occurred. The Release of Lien Bond was given to prevent the very thing that did occur, a lien by Mayer being imposed on the Church. For the reasons set forth above, Mayer has demonstrated there are no undisputed issues of material fact[ ] and it is entitled to judgment as a matter of law regarding its claim under the Release of Lien Bond;
“It is therefore ORDERED, ADJUDGED, AND DECREED by the Court as follows:
“1. That a money judgment is hereby entered in favor of the Plaintiff, Mayer Electric Supply Company, Inc. and against the Defendants Buco Building Constructors, Inc. and St. Paul Fire and Marine Insurance in the amount of $36,217.82 plus legal interest of 6% in the amount of $6,840.71 from July 10, 2006, the date Mayer served St. Paul [with] a demand for payment under the Release of Lien Bond, for a total money judgment of $43,058.53.”

Buco and St. Paul then timely filed a notice of appeal to this court.

First, Buco and St. Paul argue that the trial court erred in denying their motion for a summary judgment with respect to Mayer’s claims in the 2006 action. However, subject to exceptions not here applicable, appellate courts do not review the denial of a summary-judgment motion. See, e.g. Minor Heights Fire Dist. v. Skinner, 831 So.2d 609, 614 (Ala.Civ.App.2002). In Minor Heights, this court stated:

“On appeal, the fire district argues that the trial court erred in denying its summary-judgment motion and in entering a summary judgment in favor of the Skinners.
“As to the denial of the fire district’s summary-judgment motion, the order denying that motion is not appealable. See Blanton v. Liberty Nat’l Life Ins. Co., 434 So.2d 773 (Ala.1983).”

831 So.2d at 614 (footnote omitted).

Second, Buco and St. Paul perfunctorily argue without citation of authority that the trial court erred in denying their October 1, 2008, motion. However, although that motion was titled a motion to dismiss, it constituted a motion for a summary judgment because Buco and St. Paul presented evidence in support of it and the trial court did not exclude that evidence. See Rule 12(b), Ala. R. Civ. P. (“If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56....”). As noted above, subject to exceptions not here applicable, appellate courts do not review the denial of a summary-judgment motion. See, e.g., Minor Heights, supra.

Third, Buco and St. Paul argue that the trial court erred in granting Mayer’s summary-judgment motion with respect to its claim for breach of the Release of Lien Bond. Specifically, they argue, among other things, that the trial court’s granting of that motion was erroneous because, they say, this court held in Buco that the Release of Lien Bond did not become effective and that that holding constitutes the law of the case. Mayer, on the other hand, argues that the Release of Lien Bond constitutes a binding contract regardless of whether it was effectively substituted for Mayer’s lien on the church’s property as collateral securing the payment of the debt owed by J & J to Mayer pursuant to § 85 — 11—233(b). Mayer further argues that the language in Buco stating that the Release of Lien Bond did not become effective was obiter dictum because, it says, this court did not have jurisdiction over Buco’s appeal in Buco.

“This Court’s review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So.2d 72, 74 (Ala.2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 952-53 (Ala.2004). In making such a determination, we must review the evidence in the light most favorable to the nonmovant. Wilson v. Brown, 496 So.2d 756, 758 (Ala.1986). Once the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce ‘substantial evidence’ as to the existence of a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989); Ala. Code 1975, § 12-21-12. ‘[Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assur. Co. of Fla., 547 So.2d 870, 871 (Ala.1989).”

Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038-39 (Ala.2004).

In Buco, this court had jurisdiction to determine whether it had jurisdiction over Buco’s appeal. See Jefferson County Comm’n v. Edwards, 32 So.3d 572, 583 (Ala.2009) (“A court has jurisdiction to determine its own jurisdiction.”). Our holding in Buco that the Release of Lien Bond had not become effective under § 35-11-233(b) and our holding that “the [Release of Lien Bond] itself only obligated Buco to indemnify Mayer in the event of an unpaid monetary judgment in Mayer’s favor against Buco ” were necessary to our decision that Buco was not aggrieved by the judgment that was the subject of the appeal in Buco, 960 So.2d at 711. Thus, “[bjecause obiter dictum is, by definition, not essential to the judgment of the court which states the dictum..." Ex parte Williams, 838 So.2d 1028, 1031 (Ala.2002), those holdings in Buco were not obiter dicta. Moreover, because the parties have not directed us to any change in the facts since our decision in Buco, those holdings became the law of the case. See Blumberg v. Touche Ross & Co., 514 So.2d 922, 924 (Ala.1987) (“Under the doctrine of the ‘law of the case,’ whatever is once established between the same parties in the same case continues to be the law of that case, whether or not correct on general principles, so long as the facts on which the decision was predicated continue to be the facts of the case.”). Our holding that the Release of Lien Bond had not become effective under § 35-ll-233(b) precluded Mayer from prevailing on its claim based on the Release of Lien Bond on the theory that that bond had become effectively substituted for Mayer’s lien on the church’s property. Our holding that “the [Release of Lien Bond] itself only obligated Buco to indemnify Mayer in the event of an unpaid monetary judgment in Mayer’s favor against Buco ” (960 So.2d at 711) precluded Mayer from recovering for breach of the Release of Lien Bond on the theory that it constituted an enforceable contract regardless of whether it was effectively substituted for the lien on the church’s property pursuant to § 35-ll-233(b) because it is undisputed that Mayer had not obtained a judgment against Buco before making its July 10, 2006, demand for payment under the Release of Lien Bond. Accordingly, we reverse the summary judgment in favor of Mayer and remand the action to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

PITTMAN and THOMAS, JJ„ concur.

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

      . Section 6-5-440 provides:
      "No plaintiff is entitled to prosecute two actions in the courts of this state at the same time for the same cause and against the same party. In such a case, the defendant may require the plaintiff to elect which he will prosecute, if commenced simultaneously, and the pendency of the former is a good defense to the latter if commenced at different times.”

      . We recognize that the entry of a summary judgment in favor of Mayer in the 2004 action was anomalous in several respects. First Mayer’s complaint in the 2004 action did not purport to state a claim against Buco. Second, Mayer’s complaint in the 2004 action neither named St. Paul as a defendant nor purported to state a claim against St. Paul. Third, the trial court had already entered a summary judgment in favor of Buco in the 2004 action on the ground that Mayer’s complaint in the 2004 action did not purport to state a claim against Buco. Finally, Mayer's summary-judgment motion had sought a summary judgment only with respect to the claims Mayer had stated against Buco and St. Paul in the 2006 action.


author: BRYAN, Judge. MOORE, Judge,

text:
    Aubrey Dean WILLIAMS v. Susan Kaye WILLIAMS.
    2090629.
    Court of Civil Appeals of Alabama.
    Jan. 28, 2011.
    Certiorari Denied Aug. 5, 2011 Alabama Supreme Court 1100550.

      Jack W. Torbert, Jr., of Torbert & Tor-bert, P.A., Gadsden, for appellant.

      Thomas A. King, Gadsden, for appellee.
   BRYAN, Judge.

Aubrey Dean Williams (“the husband”) appeals from a judgment entered by the Etowah Circuit Court (“the trial court”) that divorced him from Susan Kaye Williams (“the wife”).

Procedural History

The parties married on May 6,1995, and two children, both boys, were born of the parties’ marriage: the older child was born in September 1999, and the younger child was born in February 2003. The parties separated on January 17, 2008, and the wife filed a complaint for a divorce on January 30, 2008. In her complaint, the wife sought, among other things, a divorce on the ground of mental cruelty, sole custody of the children, an award of child support, an award of alimony, an order preventing the husband and his family from making derogatory remarks about her to the children, an equitable division of the property located on Scrougeout Drive in Collinsville (“the Collinsville property”), and one-half of the husband’s retirement benefits. Pursuant to various pendente lite orders entered by the trial court, the wife was awarded pendente lite possession of the parties’ marital residence, which was located on the Collinsville property; the wife was awarded primary custody of the children pendente lite; and the husband was awarded specific pendente lite visitation. The husband subsequently filed an answer to the wife’s complaint for a divorce, and he filed a counterclaim for a divorce seeking, among other things, joint custody of the children, with the husband named as the primary custodial parent, and an award of title to and possession of the Collinsville property, which the husband alleged was not marital property.

The trial court entered a judgment on December 17, 2009, that divorced the parties on the ground of incompatibility. Paragraph six of the judgment was labeled “Minimization of Emotional Trauma on [the] ... Children,” and, pursuant to that part of the judgment, the parties were forbidden from saying or doing anything to influence the children about any issue presented in the divorce action. The parties were awarded joint custody of the children, the wife was designated the primary custodial parent, and the husband was awarded specific periods of visitation. The judgment also ordered, among other things, that the husband pay the wife $903 a month in child support, that the husband pay the wife $750 a month as periodic alimony, that the wife pay 81% and the husband pay 19% of unpaid medical expenses of the children, that the Collinsville property be sold, and that each party receive 50% of the proceeds from the sale of that property. The wife was awarded all the parties’ household goods except the husband’s personal belongings, a 2000 Sierra minivan, and 50% of the husband’s retirement benefits “as determined by the value of the benefits on May 6,1995.” The husband was awarded all right, title, and interest to six different vehicles. Each party was awarded all the financial accounts in his or her name, and each party was ordered to pay all the debts that had been incurred in his or her name. Finally, the husband was ordered to pay $1,500 toward the wife’s attorney’s fees.

On December 18, 2009, the trial court entered a qualified domestic-relations order that assigned to the wife an amount equal to 50% of the husband’s retirement benefits that had accrued under the husband’s pension plan as of May 6, 1995. The husband filed a postjudgment motion pursuant to Rule 59, Ala. R. Civ. P., and Rule 60, Ala. R. Civ. P. The husband challenged, among other things, the award of custody, the order requiring him to pay a share of the children’s unpaid medical expenses, the award of child support, the disposition of the marital residence, the awards of personal property, the award to the wife of a portion of his retirement benefits that had accrued before the parties’ marriage, and the award of periodic alimony to the wife. The husband also requested that the trial court consider additional testimony at the hearing on his postjudgment motion.

On February 17, 2010, following the filing of the wife’s motion to correct a clerical error, the trial court amended the divorce judgment to require the husband to pay 81%, and to require the wife to pay 19%, of the children’s unpaid medical expenses. On February 28, 2010, the husband filed an amended postjudgment motion challenging the constitutionality of paragraph six of the divorce judgment, asserting that it interfered with his parental rights, that it interfered with his right to free speech, that it was vague and ambiguous, and that it was so broad that it included protected speech. Following a hearing on the husband’s postjudgment motions, where the court took additional testimony from the parties’ older child, the trial court denied all pending post-judgment relief requested by the husband, and the husband timely appealed.

Issues

The husband presents several issues for this court to review on appeal: (1) the award of sole physical custody of the children to the wife; (2) the award of child support and the allocation of unpaid medical expenses; (3) the division of property and the award of alimony to the wife; and (4) the constitutionality of paragraph six of the divorce judgment.

Facts

At the ore tenus hearing that was conducted on October 26, 2009, June Nichols, a psychologist who had counseled the children, testified that when she first met the parties’ older child he was “a very upset young man.” She described him as worried and stressed about everything, and she stated that the source of the older child’s stress was his relationship with the husband and “this going back and forth.” Nichols stated that the children loved both parents but that the older child felt tension in his relationship with the husband and felt that the husband placed responsibility for the younger child on him. According to Nichols, those issues needed to be resolved, and, because the children had been primarily under the care of the wife during the pendency of the divorce action, she saw no reason to change their custodial arrangement.

The wife testified that she had filed for a divorce from the husband because he had mentally abused her, because he was controlling, and because she was afraid of him. The wife testified that she had been the primary caretaker of the children and that the husband had told her, before the older child was born, that he would not care for their children until the children turned three or four years old because they would not remember who cared for them before that point. The wife also stated that the husband did not help the children with their homework because he did not think that the children should have homework until they were in the fourth grade. She testified, however, that she had helped the children with their homework and that the older child had made all As and Bs and that the younger child had made straight As. The wife maintained that the husband had talked to the children about the divorce, that the husband and his family had said that the wife was crazy in front of the children, and that the husband had allowed the older child to read his counterclaim for a divorce.

The husband alleged that he had eared for the children most of the time when they were growing up and that he played sports with the children as often as possible. The husband admitted that he had taken the children to his attorney’s office because he was concerned about them, and, although he denied letting the children read the divorce pleadings, he stated that he did discuss the divorce with the children. The husband alleged that the older child had gained approximately 55 pounds since the wife had filed for a divorce, and the husband attributed the older child’s weight gain to the older child’s propensity to spend several hours a day playing video games instead of getting more exercise. The husband also alleged that his father (“the paternal grandfather”) had been admitted to the hospital shortly after the wife had filed for a divorce and that the wife had refused to allow the children to visit the paternal grandfather in the hospital when it became certain that the paternal grandfather would die. After the wife was awarded pendente lite possession of the parties’ marital residence, the husband lived with his mother from February 2008 through November 2008, and then he moved into a camper on the Collinsville property. The husband stated that he spent his visitation time with the children at his mother’s home.

The parties maintained separate financial accounts throughout their marriage. The evidence indicated that the parties had two accounts with A.G. Edwards, a brokerage firm, one account in the husband’s name and one account in the wife’s name, that were created as college-fund accounts for the children. The husband also had separate financial accounts with three other financial institutions — Merrill Lynch, Morgan Keegan, and First Southern Bank — that were not used to benefit the marriage, which totaled approximately $16,500. The husband had a savings account and a checking account with a combined total of approximately $12,700. The husband agreed that the wife should be awarded her 2000 Sierra minivan, but he asked to be awarded approximately six vehicles that were in his name, asserting that the wife did not contribute any funds to purchase the vehicles and that she did not use the vehicles.

The wife was self-employed and worked from the home. The wife testified, and her 2008 federal income-tax return revealed, that the wife earned approximately $24,000 in 2008 but that her gross income in 2008, after proper self-employment deductions were made, was $12,185, or approximately $1,015 a month. The wife agreed with a statement made by her attorney that she did not incur any childcare expenses, and she testified that her mother was able to retrieve the children from school if she was unable to do so. At the time of the hearing, the husband worked for Goodyear Tire, and he testified that he grossed approximately $1,000 each week, or approximately $52,000 a year.

The husband first worked at Goodyear Tire from 1984 through 1989, and he began earning retirement benefits during that time. He was laid off in 1989, but he began working at Goodyear Tire again in 1994. The wife agreed that the husband’s Goodyear Tire retirement account was in existence before she and the husband married. The husband testified that he had approximately $20,000 in his Goodyear Tire retirement account at the time the parties married in May 1995 and that, at the time the wife filed her complaint for a divorce, the balance in the account was approximately $92,000. According to the husband, he earned at least 3% interest on his retirement account, and he estimated that he had earned $8,400 in interest on the retirement funds that he had accumulated before the parties married.

The Collinsville property consisted of the marital residence and approximately 65 acres of land, and the appraised value of the Collinsville property was $235,000. It was undisputed that the parties had lived in the marital residence since they married in 1995. According to the wife, when the parties married, the husband told her that the Collinsville property was “ours.” Only the husband’s name was on the deed to the Collinsville property, but the wife stated that only the husband’s name was on everything they owned, including her vehicle.

The Collinsville property was once owned by the husband’s mother and father, but the husband began living in the residence located on the Collinsville property in 1989. The husband’s mother and father gave him the deed to the Collinsville property in 1991, but the husband did not have the deed recorded in his name until 1997. The husband opined that the Col-linsville property was worth $180,000. The husband testified that the marital residence was on approximately one acre of land and that he and his father had operated a cattle business on the remaining acreage in the Collinsville property. The wife admitted that she did not participate in raising cattle with the husband and that no funds from the husband’s cattle business were used for the benefit of the marriage. The husband stated that the marital residence and one-acre of land should be separated from the remaining acreage because the wife did not participate in raising cattle and she rarely used any part of the 65 acres other than the area where the marital residence was located.

The wife owned a home before the parties married, and she netted approximately $19,000 from the sale of that residence while the parties were married. According to the wife, she used the sale proceeds to pay bills and to purchase furniture for the marital residence. At the time the parties married, the wife owed a debt to the Internal Revenue Service and to a credit-card company. However, according to the wife, the parties had agreed that the wife could keep the income she made from her job as spending money. The wife testified that she had inherited a home from her father, who died in March 2008, and, at the time of the trial, the house was apparently listed for sale for $58,000.

According to the wife, there was a safe in the marital residence that contained at least $10,000; however, she stated that she did not have access to that safe. The husband testified that he was not sure how much money was in the safe at the marital residence. The husband submitted an exhibit, without objection, that he described as a list of his personal property that he was requesting the court award to him. It included approximately 44 items or sets of items, some of which, according to the exhibit entered into evidence, allegedly were owned by the husband before the marriage or were gifts to the husband from his father.

The trial court agreed to take additional testimony at the hearing on the husband’s postjudgment motions, and, at that hearing, the older child testified that he wanted to spend most of his time with the husband.

Standard of Review
“ ‘When ore tenus evidence is presented, a presumption of correctness exists as to the trial court’s findings on issues of fact; its judgment based on these findings of fact will not be disturbed unless it is clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. J & M Bail Bonding Co. v. Hayes, 748 So.2d 198 (Ala.1999); Gaston v. Ames, 514 So.2d 877 (Ala.1987). When the trial court in a nonjury case enters a judgment without making specific findings of fact, the appellate court “will assume that the trial judge made those findings necessary to support the judgment.” Transamerica Commercial Fin. Corp. v. AmSouth Bank, 608 So.2d 375, 378 (Ala.1992). Moreover, “[ujnder the ore tenus rule, the trial court’s judgment and all implicit findings necessary to support it carry a presumption of correctness.” Transamerica, 608 So.2d at 378. However, when the trial court improperly applies the law to [the] facts, no presumption of correctness exists as to the trial court’s judgment. Allstate Ins. Co. v. Skelton, 675 So.2d 377 (Ala.1996); Marvin’s, Inc. v. Robertson, 608 So.2d 391 (Ala.1992); Gaston, 514 So.2d at 878; Smith v. Style Advertising, Inc., 470 So.2d 1194 (Ala.1985); League v. McDonald, 355 So.2d 695 (Ala.1978). “Questions of law are not subject to the ore tenus standard of review.” Reed v. Board of Trustees for Alabama State Univ., 778 So.2d 791, 793 n. 2 (Ala.2000). A trial court’s conclusions on legal issues carry no presumption of correctness on appeal. Ex parte Cash, 624 So.2d 576, 577 (Ala.1993). This court reviews the application of law to facts de novo. Allstate, 675 So.2d at 379 (“[W]here the facts before the trial court are essentially undisputed and the controversy involves questions of law for the court to consider, the [trial] court’s judgment carries no presumption of correctness.”).’ ”

Farmers Ins. Co. v. Price-Williams Assocs., Inc., 873 So.2d 252, 254-55 (Ala.Civ.App.2003) (quoting City of Prattville v. Post, 831 So.2d 622, 627-28 (Ala.Civ.App.2002)).

Discussion

I. Custody Detennination

On appeal, the husband first argues that the trial court erred by awarding the wife sole physical custody of the children because such an award was contrary to the law and the evidence of the case and because it was not in the best interest of the children. The trial court awarded the parties joint custody of the children, and it designated the wife as the “primary custodial parent.” In his brief on appeal, the husband correctly notes that the term “primary custodial parent” is not defined in the Alabama joint-custody statute, § 30-3-151, Ala.Code 1975, and that this court has urged trial courts to use the terminology contained in § 30-3-151 when crafting custody judgments. See Smith v. Smith, 887 So.2d 257, 262 (Ala.Civ.App.2003). However, the husband directs this court to no authority to support his argument that the custody award should be reversed based on the trial court’s failure to use the appropriate child-custody terminology in the divorce judgment. See Rule 28(a)(10), Ala. R.App. P.; and Ex parte Showers, 812 So.2d 277, 281 (Ala.2001). Moreover, as the husband apparently recognizes, the trial court’s judgment should be interpreted as awarding the parties joint legal custody of the children and awarding the wife sole physical custody of the children. Cf. Combs v. Combs, 4 So.3d 1141, 1145, 1151 (Ala.Civ.App.2008) (when the parties in a divorce action were awarded joint legal custody and the husband was designated as the “primary custodian,” this court interpreted that award to be an award of primary physical custody, or sole physical custody, to the husband).

“When the trial court makes an initial custody determination, neither party is entitled to a presumption in his or her favor, and the ‘best interest of the child’ standard will generally apply.” Steed v. Steed, 877 So.2d 602, 604 (Ala.Civ.App.2003) (citing Nye v. Nye, 785 So.2d 1147 (Ala.Civ.App.2000)). In Ex parte Devine, 398 So.2d 686, 696-97 (Ala.1981), the Alabama Supreme Court set forth a list of factors a trial court may consider in making an initial award of custody based on the best interest of the children, including

“[t]he sex and age of the children ...; ... the characteristics and needs of each child, including their emotional, social, moral, material and educational needs; the respective home environments offered by the parties; the characteristics of those seeking custody, including age, character, stability, mental and physical health; the capacity and interest of each parent to provide for the emotional, social, moral, material and educational needs of the children; the interpersonal relationship between each child and each parent; the interpersonal relationship between the children; the effect on the child of disrupting or continuing an existing custodial status; the preference of each child, if the child is of sufficient age and maturity; the report and recommendation of any expert witnesses or other independent investigator; available alternatives; and any other relevant matter the evidence may disclose.”

The husband argues that factors such as the wife’s abandonment of the children, the wife’s cruelty toward the children, the wife’s neglect of the children, and the older child’s custodial preference weighed in favor of awarding him sole physical custody of the children. Initially, we note that there is no evidence in the record to support a finding that the wife abandoned the children, and we reject the husband’s argument that the wife abandoned him simply by filing for a divorce. Regarding the alleged cruelty of the wife, the husband cites the testimony presented at the ore tenus hearing indicating that the wife did not allow the children to see the paternal grandfather in the hospital before he died. The husband also alleges that, due to the neglect of the wife, the older child gained approximately 55 pounds during the pen-dency of the divorce action. Although such evidence could have supported an award of sole physical custody to the husband, the trial court heard other evidence that supported a finding that the best interest of the children would be served by awarding the wife sole physical custody of the children. Nichols, the children’s counselor who testified as an expert, stated that she saw no reason to remove custody of the children from the wife in light of the fact that she had been their primary caretaker. Nichols also testified that the older child had unresolved interpersonal issues with the husband that, she indicated, caused the older child a great deal of stress. Finally, other evidence indicated that the wife had provided for the educational needs of the children by helping them with their homework and that the husband had not considered homework something the children should be required to complete until they were in the fourth grade.

Furthermore, although “an expressed preference of a child to live with a particular parent is a factor to be considered by the trial court, such wishes are not determinative.” Bassett v. Brown, 598 So.2d 936, 937 (Ala.Civ.App.1992); see also Ladden v. Ladden, 49 So.3d 702, 718 (Ala.Civ.App.2010). The older child was only 10 years old at the time he testified that he preferred to live with the husband; the trial court could have considered the older child’s age, and Nichols’s testimony that the older child was under a significant amount of stress, in determining that the older child’s expressed preference was not due to be given considerable weight in making the initial custody determination. Accordingly, we conclude that the trial court’s judgment awarding the wife sole physical custody of the children is supported by the evidence and is due to be affirmed.

II. Child Support and Unpaid Medical Expenses

Next, the husband argues that the award of child support is contrary to the law and the evidence presented insofar as it does not conform to the child-support guidelines set forth as an appendix to Rule 32, Ala. R. Jud. Admin. In 2008, before the trial in this matter, both parties filed a CS-41 Child-Support-Obligation Income Statement/Affidavit form (“CS-41 form”), and those forms appear in the record. According to the wife’s January 2008 CS-41 form, she earned approximately $2,000 a month and paid $347 a month for childcare expenses. According to the husband’s November 2008 CS-41 form, he earned approximately $4,325 a month and paid $78 a month in health-insurance expenses. However, at the hearing in October 2009, the parties offered testimony that conflicted with the information contained in their CS-41 forms. The wife testified that her self-employment income totaled approximately $1,015 a month, and the trial court could have concluded that she did not incur any child-care expenses. The husband testified that, at the time of the hearing, he was earning approximately $52,000 a year, or approximately $4,333 a month. Using this information to complete a CS-42 Child-Support Guidelines form, and using the husband’s health-insurance expense from his 2008 CS-41 form, we reach the same child-support obligation as the trial court did, $908 a month. The husband does not argue on appeal that the wife improperly calculated her gross monthly income pursuant to Rule 32(B)(8), Ala. R Jud. Admin, (self-employment income). Because the husband’s argument on appeal is based solely on his contention that the child-support award is unsupported by the evidence in the record and that it did not comply with the child-support guidelines appended to Rule 32, and because there is evidence to support the child-support determination, the trial court’s child-support determination is due to be affirmed.

The husband also argues that the trial court’s allocation of the children’s unpaid medical expenses is “inconsistent with the parties’ pro rata share of expenses.” In the divorce judgment, as amended, the wife was ordered to pay 19% of the children’s unpaid medical expenses and the husband was required to pay 81% of the children’s unpaid medical expenses. The wife’s gross monthly income is equal to 19% of the parties’ combined gross monthly income, and the husband’s gross monthly income is equal to 81% of the parties’ combined gross monthly income. Accordingly, the allocation of the children’s unpaid medical expenses is identical to the parties’ percentage share of their combined gross monthly income. The husband raises no other argument to support reversal of the allocation of the children’s unpaid medical expenses; accordingly, that aspect of the judgment is due to be affirmed.

III. Division of Property and Award of Alimony

On appeal, the husband challenges the award of a portion of his retirement benefits to the wife, the awards of personal property, the award of alimony to the wife, and the disposition of the Collinsville property. Because we conclude that the award of a portion of the husband’s retirement benefits to the wife must be reversed and, therefore, that the division of property and the award of alimony must be reconsidered, we will consider that aspect of the property division first.

A. Retirement Benefits

The husband argues that the trial court erred in awarding the wife a portion of his retirement benefits for three reasons: (1) because the wife failed to prove that his retirement benefits were vested as required by § 30-2-51(b), Ala.Code 1975; (2) because the wife failed to prove the present value of his retirement benefits as required by § 30 — 2—51(b); and (3) because the judgment awarded the wife a portion of his retirement benefits that had accumulated before the parties married, in violation of § 30-2-51 (b)(2). The division of retirement benefits in a marital estate is governed by § 30-2-51(b), Ala.Code 1975, which states:

“The judge, at his or her discretion, may include in the estate of either spouse the present value of any future or current retirement benefits, that a spouse may have a vested interest in or may be receiving on the date the action for divorce is filed, provided that the following conditions are met:
“(1) The parties have been married for a period of 10 years during which the retirement was being accumulated.
“(2) The court shall not include in the estate the value of any retirement benefits acquired prior to the marriage including any interest or appreciation of the benefits.
“(3) The total amount of the retirement benefits payable to the non-covered spouse shall not exceed 50 percent of the retirement benefits that may be considered by the court.”

Initially, we note that our review of the record reveals that the husband did not argue before the trial court that the wife failed to present evidence indicating that the husband’s retirement benefits were vested; accordingly, this court may not consider that argument. See State Farm Mut. Auto. Ins. Co. v. Motley, 909 So.2d 806, 821 (Ala.2005) (citing Crutcher v. Wendy’s of North Alabama, Inc., 857 So.2d 82, 97 (Ala.2003)) (an appellate court “cannot consider arguments advanced for the purpose of reversing the judgment of a trial court when those arguments were never presented to the trial court for consideration or were raised for the first time on appeal”).

However, the husband did properly preserve for review the argument that the wife failed to present evidence of the present value of his retirement benefits. It was undisputed that the husband’s retirement benefits with Goodyear Tire began accumulating before the parties married. The husband testified that he had accumulated approximately $20,000 in retirement benefits at the time the parties married on May 6, 1995, and that the minimum interest rate applicable to his retirement account was 3%. According to the husband’s calculations, he had earned approximately $8,400 in interest on the retirement funds that existed before the parties married. The husband also testified that there was approximately $92,000 in his retirement account at the time the wife filed for a divorce in January 2008. Because we must assume that the husband’s retirement benefits were vested, the trial court was presented evidence from which it could have calculated the present value of the husband’s future retirement benefits that accumulated during the parties’ marriage. Accordingly, we find no merit in the husband’s argument that the wife failed to present evidence of the present value of his retirement benefits.

Finally, the husband argues that the trial court erred by awarding the wife the value of 50% of his retirement benefits “as determined by the value of the benefits on May 6, 1995,” which is the date the parties were married. In order to implement this provision of the divorce judgment, the trial court entered a qualified domestic-relations order that assigned to the wife “an amount equal to ... 50% of the [hus-bandj’s entire retirement benefit which had accrued under the 1950 Pension Plan as of May 6, 1995.” The husband, citing § 30 — 2—51 (b) (2), argues that the divorce judgment awards the wife the portion of the husband’s retirement benefits that should have been excluded, i.e., the retirement benefits that accumulated before the parties’ marriage on May 6, 1995. We agree with the husband that the language used in the divorce judgment, as well as the language in the qualified domestic-relations order, awarded the wife 50% of the amount of the husband’s retirement benefits that had accrued up to the date of the parties’ marriage, in violation of § 30-2 — 51(b)(2). Accordingly, that part of the divorce judgment that awarded the wife a portion of the husband’s retirement benefits that had accrued before their marriage on May 6, 1995, is due to be reversed.

Because the husband has appealed the award of alimony to the wife and other aspects of the division of property, we remand the cause to the trial court with instructions to reconsider its award of alimony and its division of property in light of the impact of the change in the award of retirement benefits to the wife. See Tompkins v. Tompkins, 843 So.2d 759, 762 (Ala.Civ.App.2002) (reversing an award of retirement benefits that exceeded the statutory limit and remanding the case for the trial court to reconsider its property division); and Dunn v. Dunn, 891 So.2d 891, 895 (Ala.Civ.App.2004).

B. Division of the Collinsville Property

Although we have remanded the case with instructions to the trial court to reconsider its property division, including the award of alimony to the wife, we will address the husband’s argument on appeal that the Collinsville property was not subject to division because it was part of his separate estate. Section 30-2-51 (a), Ala. Code 1975, allows a trial court to divide “property acquired by one party before the marriage if ‘the property ... has been used regularly for the common benefit of the parties during the marriage.’ ” Sumerlin v. Sumerlin, 964 So.2d 47, 49 (Ala.Civ.App.2007) (emphasis omitted) (affirming a judgment awarding to the wife the marital residence that was purchased by the husband before the parties’ marriage and that was used as his place of business).

The evidence presented indicated that the Collinsville property was given to the husband by his parents before the parties married and that the parties lived on the Collinsville property for the entire length of their marriage. Although the evidence indicated that the majority of the land that composed the Collinsville property was used for a cattle business that was operated by the husband and his father, there was only one deed to all the Collins-ville property. The husband argues that because the wife only regularly used a small part of the Collinsville property — the marital residence and the surrounding one-acre of land — during their marriage, she should be entitled to only a portion of that part of the Collinsville property.

In response to the husband’s argument, the wife, citing Rule 28(a)(10), Ala. R. Civ. P., argues that this court should disregard the husband’s argument because the husband failed to cite any authority to support his argument that the trial court erred by considering the Collinsville property as a whole and by concluding that it was marital property subject to division. See Latham v. Department of Corr., 927 So.2d 815, 822 (Ala.2005) (citing the well established rule that an appellate court will disregard a party’s argument on appeal for failure to comply with Rule 28(a)(10)). The trial court evidently concluded that the Collinsville property should be considered as a whole and that, because it was undisputed that part of the Collins-ville property regularly had been used for the common benefit of the parties during the marriage, the Collinsville property was marital property. “Whether property is marital or separate property is a ‘matter for the trier of fact [to decide] after reviewing all the evidence in each case.’ ” Wolf v. Wolf 666 So.2d 17, 18 (Ala.Civ.App.1995) (quoting Shirley v. Shirley, 600 So.2d 284, 287 (Ala.Civ.App.1992)). The husband has provided this court no basis to support a reversal of the trial court’s determination that the Collinsville property should be considered as a whole. Accordingly, we affirm the trial court’s determination that the Collinsville property was marital property subject to division.

IV. Constitutionality of Paragraph Six

Finally, the husband argues that paragraph six of the divorce judgment, specifically the first sentence of that paragraph, is ambiguous; that it violates his First Amendment constitutional right to free speech; that it violates his constitutional right to a relationship with his children; and that it is overly broad. Paragraph six of the divorce judgment states, in pertinent part:

“6. Minimization of Emotional Trauma on Child/Children: Neither party shall do or say anything to [the] ... children of the parties, or in [the] ... children[’](s) presence and hearing[,] to influence [the] ... children about the other party or about any issue presented in this action.”

We cannot agree with the husband that paragraph six of the divorce judgment is ambiguous. Keeping the purpose of paragraph six in mind, i.e., the minimization of emotional trauma on the children, a plain reading of paragraph six reveals the trial court’s intention to limit the parties’ ability to do or say anything to influence the children about the issues presented in the divorce action in a way that would harm the children by causing emotional trauma.

In support of his argument that paragraph six violates his constitutional right to free speech and his constitutional right to a relationship with the children, the husband cites the main opinion in Jackson v. Jackson, 999 So.2d 488, 494 (Ala.Civ.App.2007) (per Moore, J., with Pittman and Thomas, JJ., concurring in the result), which recognized a parent’s “constitutional right to a relationship with [his or] her children,” citing Quilloin v. Walcott, 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978), and held that “[t]he state should not intrude on [a parent’s] constitutional rights any more than necessary to protect a compelling state interest,” citing M.L.B. v. S.L.J., 519 U.S. 102, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996). The husband does not contend that the state does not have a compelling interest in protecting the children of this state from harm. See Ex parte 62 So.3d 531, 536 (Ala.Civ.App.2010) (citing E.H.G. v. E.R.G., 73 So.3d 614 (Ala.Civ.App.2010)) (“[T]his court has recognized that the state has a compelling interest in protecting its children from harm.”). He argues that paragraph six of the divorce judgment precludes him from saying anything to the children about any issue presented in the divorce action and that, therefore, paragraph six of the divorce judgment is so broad that it interferes with his constitutional rights in a manner that is more than necessary to protect the state’s compelling interest in keeping the children from harm.

However, a plain reading of paragraph six does not, as the husband argues, forbid the husband from saying anything whatsoever to the children about any issue presented in the divorce action. Paragraph six precludes the husband and the wife from saying anything to “influence the children about ... any issue presented in this action,” for the stated purpose of minimizing emotional trauma on the children and thus protecting the children from harm. The husband does not argue that his constitutional rights to free speech and a relationship with the children would require that he be permitted to influence the children about issues related to the divorce action in a manner that would cause the children emotional trauma. Therefore, because paragraph six does not, as the husband suggests, forbid all communication between the husband and the children regarding any issue related to the divorce, we need not decide whether a divorce judgment that did so would violate a parent’s constitutional rights to free speech and a relationship with his or her children. Accordingly, based on the husband’s argument on appeal, we find no error in paragraph six of the divorce judgment.

Conclusion

The award of retirement benefits to the wife is reversed and the cause is remanded for the trial court to reconsider its division of property and the award of alimony to the wife. All other aspects of the divorce judgment are affirmed.

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

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

MOORE, J., concurs in the rationale in part and concurs in the result, with writing.

MOORE, Judge,

concurring in the rationale in part and concurring in the result.

I concur in the result to affirm the trial court’s determination that the Collinsville property was marital property subject to division in Part III.B. of the main opinion, and I concur in the result to affirm as to paragraph six of the divorce judgment in Part IV of the main opinion. I concur in the remainder of the main opinion.

      . We note however, that an exhibit entered into evidence by the wife setting forth her monthly expenses included $100 a month for day-care expenses.

      . Section 30-3-151 provides:
      “For the purposes of this article [Title 30, Chapter 3, Article 7, § 30-3-150 through § 30-3-157, entitled ‘Joint Custody’] the following words shall have the following meanings:
      "(1) Joint custody. Joint legal custody and joint physical custody.
      "(2) Joint legal custody. Both parents have equal rights and responsibilities for major decisions concerning the child, including, but not limited to, the education of the child, health care, and religious training. The court may designate one parent to have sole power to make certain decisions while both parents retain equal rights and responsibilities for other decisions.
      "(3) Joint physical custody. Physical custody is shared by the parents in a way that assures the child frequent and substantial contact with each parent. Joint physical custody does not necessarily mean physical custody of equal durations of time.
      “(4) Sole legal custody. One parent has sole rights and responsibilities to make major decisions concerning the child, including, but not limited to, the education of the child, health care, and religious training.

        "(5) Sole physical custody. One parent has sole physical custody and the other parent has rights of visitation except as otherwise provided by the court.”

      . Although the husband, in his initial brief on appeal, argues that the trial court erred by awarding the wife sole physical custody of the children, in his reply brief the husband argues that the divorce judgment should not be interpreted as awarding the wife sole physical custody of the children. Instead, he argues in his reply brief that the divorce judgment should be interpreted as awarding the parties joint custody — -i.e., joint legal custody and joint physical custody — of the children. Although this court cannot consider arguments raised for the first time in an appellant’s reply brief, see Byrd v. Lamar, 846 So.2d 334, 341 (Ala.2002), we disagree that the divorce judgment established a joint-custody arrangement.

      . According to the husband’s 2008 CS-41 form, the husband was employed at Goodyear Tire, which was where he was employed at the time of trial.

      . We note that, despite the fact that the wife filed her complaint for a divorce in January 2008, before Rule 32 was amended effective January 1, 2009, the trial court evidently used the child-support guidelines as amended effective January 1, 2009, in making a determination of the husband's child-support obligation. However, we will not reverse the trial court’s child-support determination based on grounds that the improper child-support guidelines were utilized because the husband did not present this argument to the trial court. See Andrews v. Merritt Oil Co., Inc., 612 So.2d 409, 410 (Ala. 1992) (an appellate court may consider arguments made on appeal only if those arguments were first considered by the trial court).

      .The husband’s argument is taken from a quote in his initial brief on appeal; we construe the husband’s argument as a challenge to the percentage allocation of unpaid medical expenses because it is inconsistent with the parties’ percentage share of their child-support obligation.

      . As part of his appeal of the division of the personal property in the divorce judgment, the husband argues that the divorce judgment is vague, ambiguous, and nonfinal because it is unclear from the judgment what personal property was awarded to the husband. The part of the divorce judgment that divided personal property states as follows: "[The wife] is awarded all of the household furniture, furnishings, appliances, etc., in the marital [residence] except [the husband]'s personal belongings.” This court does not expect a trial court to enter a judgment that specifically awards every individual item of personal property owned by the parties, and we disagree that the divorce judgment is nonfinal for failing to do so. However, for the benefit of the parties involved in divorce proceedings, specific judgments are always preferred.

      . On remand, while reconsidering its division of property, the trial court may, in its discretion and subject to the requirements of § 30-2-51(b), award the wife a portion of the husband's retirement benefits.

      . The husband, citing § 30-2-51(a), also argues that the trial court failed to consider the wife’s separate estate when it awarded her one-half of the proceeds from the sale of the Collinsville property. This argument is based on his assertion that the Collinsville property is his separate estate. Because we have affirmed the trial court’s determination that the Collinsville property as a whole was not part of his separate estate, we reject the husband’s arguments made in his initial brief on appeal that are premised upon that assertion.