author: PITTMAN, Judge.

text:
    Jesse HATLEY, Jr. v. Cathy Wyatt HATLEY.
    2080745.
    Court of Civil Appeals of Alabama.
    June 11, 2010.

      Thomas B. Hanes, Pelham, for appellant.
    Charles E. Robinson, Jr., and Laurie M. Henderson of The Robinson Law Firm, P.C., Ashville, for appellee.
   PITTMAN, Judge.

Jesse Hatley, Jr. (“the husband”), appeals from a judgment divorcing him from Cathy Wyatt Hatley (“the wife”) that, among other things, awarded her a portion of the funds in the husband’s retirement account, awarded her periodic alimony, and divided the marital property between the parties. We reverse and remand.

The parties were married in 2000; however, the evidence was undisputed that the parties had lived together for at least 10 years before holding a ceremony. The parties had no children together. On March 22, 2007, the husband filed a complaint in the St. Clair Circuit Court seeking, among other things, a divorce, an equitable division of the parties’ real and personal property, and an equitable allocation of the parties’ marital debts. Subsequently, the wife filed an answer, a counterclaim seeking a divorce, and a request for pendente lite alimony. During the pendency of the divorce proceedings, the trial court entered several orders that allowed the parties to live in the marital residence and to share the common areas, that instructed the husband to pay $75 in weekly temporary alimony to the wife, that enjoined the parties from disposing of any marital property or assets before trial, and that instructed the husband to pay all debts and expenses associated with the marital residence until trial.

On February 2, 2009, the trial court conducted an ore tenus proceeding; only the husband and the wife testified. The testimony was sparse and fairly acrimonious; the wife was called first as an adverse witness by the husband. The husband tried to establish that the wife had been secretly seeing another man and that she had previously admitted to having used “crack” cocaine on two or three occasions. On the other hand, the wife established that the husband had submitted to inpatient treatment at Bradford to address a cocaine habit; she also alleged that the husband had committed adultery with the divorced mother of one of his son’s friends.

By calling the wife as an adverse witness, the husband attempted to establish that the wife had been employed throughout most of the parties’ relationship; however, the husband himself testified that the precipitating event inducing the parties to have a wedding ceremony was when the wife had suffered a seizure that resulted in the loss of her employment and her medical insurance. The husband stated that the only reason he had married the wife was to allow her to obtain medical-insurance coverage through his employer’s plan. The wife testified that she was taking numerous medications to control the seizures, including levetiracetam (Keppra), pheny-toin (Dilantin), quetiapine (Seroquel), and clonazepam (Klonopin). In addition, the wife stated that she had been involved in a motor-vehicle accident in July 2007 that had totaled her automobile and that she had not been able to drive since that time.

The wife testified, and the husband agreed, that the husband’s mother, who suffered from polio, had lived with the parties; until the husband’s mother had died in 2006, the wife had been her mother-in-law’s primary caregiver. The wife also stated that, by the time of trial, she had become unable to work and that either a friend or her mother had been driving the wife to the pharmacy, to medical appointments, and to other appointments. The wife testified that, because she had been unable to work for some time, she had applied for federal disability benefits; however, she requested that, until such time as she succeeded in obtaining such benefits, the husband be ordered to pay monthly monetary support to her and to help her keep some medical-insurance coverage. She also asked the trial court to order the sale of the marital residence and to divide the proceeds of the sale; additionally, she requested that the trial court divide the marital personalty between the parties and to award her a working motor vehicle.

The testimony established that the husband had owned a house on Grove Street in Springville that he had sold shortly after the parties had purchased the marital residence on Pearl Lake Road; the husband testified that the $50,000 he had received for selling the Grove Street property had been deposited into an investment account at Compass Bank. The husband testified that he had worked for Motion Industries as a hydraulic service technician for 30 years. He stated that, until the end of 2008, he had made “a very good living” earning $29 per hour and that, until the beginning of 2009, he had worked at least 1000 hours of overtime every year. The husband testified that the company had seriously reduced his work hours so that he was working only 32 hours per week at the time of trial. Additionally, the husband stated that, because of a stock-market decline, the balance in his 401(k) retirement account, to which the husband had contributed for 30 years, was only $139,000.

The husband also testified that although the parties had paid $350,000 for the marital residence, that property was encumbered by two mortgage loans totaling nearly $300,000; in addition, he opined that he could not sell the house in the current market for more than the outstanding loan balances. In addition, the husband stated that he had taken a $42,000 loan against his 401(k) retirement account to make the down payment on the marital residence in 2003 and that he was still repaying that amount in $250 monthly installments. The husband stated that he had improved the marital property by building a large “Quonset-type” building (a 30-foot by 50-foot garage) in which his son performed car repairs; he stated that he and his son had stored tools there that he would like to keep. The husband also testified that he would like to keep the marital residence; he opined that the majority of the furniture in the home consisted of antiques bequeathed to him by his mother and that he wanted those items. The husband concluded that he had earned everything he owned by himself, and he opined that the wife had not contributed anything to those acquisitions.

Nine days after the ore tenus proceeding, the trial court entered a judgment divorcing the parties. In that judgment, the husband was ordered to pay $750 in monthly periodic alimony to the wife, to pay one-half of the costs of providing medical coverage for the wife for 18 months following the divorce, and to pay $2,500 toward the wife’s attorney fees. In addition, the judgment ordered that the marital residence be appraised and that either party would have 90 days to offer to pay one-half of the fair-market value of the marital residence, less any indebtedness owed on that property, to the other; barring such an offer, after 90 days had elapsed, the property was to be sold at public or private sale and the proceeds divided equally, or, if the parties could not agree on a sale price, the property would be auctioned to the highest bidder 180 days following the judgment. The judgment also awarded each party his or her personal property and divided the household belongings and motor vehicles between the parties. The wife was awarded one-quarter of the funds in the husband’s 401 (k) retirement account at Motion Industries; the husband was awarded sole possession of an inheritance from his mother totaling approximately $40,000. Additionally, specified accounts on a list of checking, savings, and brokerage accounts were divided equally so that each party was awarded one-half of the amount in each account. The husband was ordered to pay all the marital debts.

The husband filed a postjudgment motion in which he essentially challenged all the awards of money and property to the wife, citing the relatively short duration of the marriage, his allegations that the wife was at fault for the breakdown of the marriage, and his contention that the parties had kept separate finances throughout the marriage. That motion was denied, and the husband timely appealed.

The husband contends that the trial court erred in dividing the marital property in a manner that, he says, was inequitable. Specifically, he asserts that the wife was not entitled to an award of periodic alimony and that she was not entitled to a portion of the funds in his retirement-account.

Our standard of review is well settled.

“The trial court is afforded a wide degree of discretion in dividing the marital assets of the parties upon divorce. Moody v. Moody, 641 So.2d 818 (Ala.Civ.App.1994). The only limitation on that discretion is that the division of property be equitable under the circumstances of the particular case, and the task of determining what is equitable falls to the trial court. Ross v. Ross, 447 So.2d 812 (Ala.Civ.App.1984). This court must consider the issues of property division and alimony together when reviewing the decision of the trial court, Albertson v. Albertson, 678 So.2d 118, 120 (Ala.Civ.App.1995), and, because the facts and circumstances of each divorce case are different, this court must also consider the particular facts and circumstances of the case being reviewed. Murphy v. Murphy, 624 So.2d 620, 623 (Ala.Civ.App.1993). In making the division, the trial court may consider several factors, including the parties’ respective present and future earning capacities, their age and health, their conduct, the duration of the marriage, and the value and type of marital property. Lutz v. Lutz, 485 So.2d 1174 (Ala.Civ.App.1986). The property division made by the trial court will not be set aside on appeal absent a palpable abuse of that discretion. Id.”

Cantrell v. Cantrell, 773 So.2d 487, 489-90 (Ala.Civ.App.2000); see also Rhodes v. Rhodes, 38 So.3d 54 (Ala.Civ.App.2009). Moreover, the determination whether certain assets are part of a party’s separate estate or are divisible marital property is a determination that must be based upon the facts in each case; such a determination is largely in the trial court’s discretion. See Ex parte Drummond, 785 So.2d 358, 361 (Ala.2000); see also Kaufman v. Kaufman, 934 So.2d 1073, 1080 (Ala.Civ.App.2005). Additionally, in examining whether the trial court’s property division amounts to an abuse of its discretion, the proper question to be resolved is whether the property division was equitable under the facts of the case.

In reference to the husband’s contention that the wife was not entitled to an award of periodic alimony at the conclusion of their seven-year marriage, we note that the husband testified that the parties had lived together unmarried for at least 10 years when the wife had suffered a seizure and learned she was going to lose her medical-insurance coverage. The husband stated that he had agreed to marry the wife primarily so that she could maintain medical-insurance coverage as his dependent; he insisted that they had continued to maintain separate and independent finances. In contrast, the wife testified that, before they were ceremonially married in 2000, the parties had conducted themselves more like a “common-law” marriage. Documents admitted into evidence reflect that, although the husband insisted that he alone had purchased the Grove Park property that had served as the marital residence for three years after the parties had married, both the husband and the wife had signed the first and second mortgages secured by the marital residence purchased in 2003. In addition, both parties acknowledged that the wife had been the husband’s mother’s primary caregiver for the five years immediately preceding her death in 2006.

Although the husband contends that the trial court’s division of property and award of alimony were in error, we note that the trial court must apply certain factors when dividing marital property and determining the need for alimony. Those factors include considering the length of the marriage; the age and health of the parties; the future prospects of the parties; the standard of living to which the parties have become accustomed during the marriage; and the fault of the parties contributing to the breakup of the marriage. Golden v. Golden, 681 So.2d 605, 608 (Ala.Civ.App.1996); see also Ex parte Foley, 864 So.2d 1094, 1097 (Ala.2003). Although the husband asserts that the brevity of the marriage militates against an award of alimony, our caselaw establishes “ ‘that the primary purposes of periodic alimony are: (1) to preserve the economic status of the parties that existed during the marriage; and (2) to provide support to the dependent former spouse.’ ” Ex parte Elliott, 782 So.2d 308, 312 (Ala.2000) (quoting Kahn v. Kahn, 682 So.2d 1377, 1380 (Aa.Civ.App.1996) (emphasis omitted)). Even in marriages of short duration, this court has upheld periodic-alimony awards to enable the recipient spouse to pay for living expenses even if the recipient spouse is not able to maintain the same economic level as before the parties were divorced.

In Capps v. Capps, 699 So.2d 183 (Ala.Civ.App.1997), this court affirmed the trial court’s judgment ordering the husband in that case to pay $500 in monthly periodic alimony and to provide medical insurance for the wife in that case, even though the husband asserted that the wife had caused the breakup of the marriage and even though the parties had only been married and cohabiting for about 7 years. Capps, 699 So.2d at 185-86. In Jernigan v. Jernigan, 344 So.2d 778 (Aa.Civ.App.1977), the wife in that case sought a divorce after only three and one-half years of marriage. In that case, this court noted that the wife had been in ill health throughout the marriage and had been unable to work at the time of trial. This court affirmed the trial court’s judgment awarding the wife $200 in monthly alimony and the marital residence. Jernigan, 344 So.2d at 780.

Just as in Jernigan, the wife in the instant case had been ill throughout the parties’ brief marriage, and she testified that she was unable to work and had no assets to pay her medical bills and living expenses. Given the seriously impaired health of the wife and the wife’s lack of disposable assets or income, the relative brevity of the parties’ marriage does not “trump” the other Golden factors.

The statutory authority of a trial court to award periodic alimony is codified at § 30-2-51, Ala.Code 1975. That statute provides, in pertinent part, “the [trial court] may not take into consideration any property acquired prior to the marriage of the parties or by inheritance or gift unless the [trial court] finds from the evidence that the property, or income produced by the property has been used regularly for the common benefit of the parties during their marriage.” Ala.Code 1975, § 30-2-51(a). Although the husband established that the wife never deposited any moneys into his “separate” accounts, the wife did establish that, regardless of who paid for the properties, both the marital residence and the Grove Street property were used “regularly for the common benefit” of the parties during the marriage; the husband himself testified that the proceeds of the sale of the Grove Street property had been the bulk of the money in one of his “separate” bank accounts. In addition, both parties acknowledged the long period of uncompensated time that the wife had spent taking care of the husband’s mother.

This court has previously noted that alimony in gross is the present value of the recipient spouse’s inchoate marital rights, such as “ ‘dower, homestead, quarantine, and distributive share,’ ” and that “ ‘[i]t is payable out of the husband’s present estate as it exists at the time of divorce.’ ” Murphy v. Murphy, 624 So.2d 620, 622 (Ala.Civ.App.1993) (quoting Hager v. Hager, 293 Ala. 47, 54, 299 So.2d 743, 749 (1974)). Although neither the trial court in its judgment nor the parties in their briefs mention the term, alimony in gross, the financial awards made to the wife from the various bank accounts may be viewed as compensation for the wife’s inchoate marital rights. See Hager, 293 Ala. at 54, 299 So.2d at 749; see also Zinnemian v. Zinnerman, 803 So.2d 569, 574 (Ala.Civ.App.2001).

Although the husband now disputes the wife’s contention that she is unable to work, the wife testified regarding the large quantities of medications she takes to control her seizures. She also stated thht she had “lots” of unpaid medical bills that had accrued during the pendency of the divorce action. The husband did not rebut the wife’s assertions regarding her physical abilities at trial; he merely testified that, after losing her job with Motion Industries, she had worked in a florist business in which he had previously held an ownership interest. Based upon the evidence indicating that, throughout the marriage, the husband had earned “a very good living” while the wife had lost her job and medical-insurance coverage because she suffers from seizures and cannot earn a sufficient income to support herself in the future, we cannot conclude that the trial court exceeded its discretion in dividing the parties’ assets and awarding periodic alimony to the wife.

That being said, however, the husband’s contention that the trial court erred in awarding the wife a portion of the funds in the husband’s 401 (k) retirement account is well taken. The wife concedes in her appellate brief that the parties were not married for the statutorily required 10 years in order for her to be awarded a portion of the husband’s retirement funds, see § 30 — 2—51(b)(1), Ala.Code 1975, and the trial court made no determination that the parties had been married before 2000 at common law. Because, as noted previously, we review the award of alimony and the division of marital property together to determine whether the trial court exceeded its discretion, and because we have determined that the trial court erred insofar as it awarded the wife a portion of the funds in the husband’s retirement account, we must reverse the trial court’s judgment as to the property division and alimony award in its entirety. Upon remand, the trial court may adjust those awards so as to institute an equitable property division between the parties.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      . We note that the trial court did not determine in its judgment that a common-law marriage had existed.


source: Caselaw Access Project

author: THOMAS, Judge. THOMPSON, Presiding Judge,

license: Public Domain

text:
    Ellen Blinder ROSS v. Jay Michael ROSS.
    2081083.
    Court of Civil Appeals of Alabama.
    June 11, 2010.

      Barry Johnson Parker and W. Don Bolton of Barry Johnson Parker LLC, Fair-hope, for appellant.
    Julian B. Brackin, Jr., and Stephen P. Johnson of Brackin, McGriff & Johnson, P.C., Foley, for appellee.
   THOMAS, Judge.

Ellen Blinder Ross (“the wife”) appeals from a judgment of the Baldwin Circuit Court divorcing her from Jay Michael Ross (“the husband”). We affirm.

Facts and Procedural History

On August 14, 2008, the husband filed a complaint in the trial court seeking a divorce from the wife. The wife answered the husband’s complaint and filed a counterclaim for a divorce. The parties were married for 26 years, and there were two children born of the marriage; however, only one of the children (“the child”) was a minor at the time of the trial.

The wife had worked as a school teacher for most of the marriage; however, at the time of the trial she was receiving disability benefits and was unable to work. The wife is 47 years old and she suffers from numerous health problems, including type II diabetes, hypothyroidism, an enlarged colon, rheumatoid arthritis, fibromyalgia, Raynaud’s disorder, four herniated disks, degenerative disk disease, cardiac arrhythmia, and depression. The wife’s income consists primarily of Social Security Administration disability payments and retirement benefits from the Retirement Systems of Alabama.

The wife also testified that since the parties’ separation she has received $750 to $1,000 per month from a family trust. The trust was established by her father. The wife has a right to the interest generated by the trust; the principal will vest in the parties’ children at a future date. The wife testified that, although she had a right to the interest generated by the trust, the parties had only accessed the trust on two occasions during the marriage — to pay for the parties’ children’s bar mitzvahs and to purchase a laptop computer.

In 2006, after becoming disabled, the wife started an online business selling leather goods on the Internet Web site eBay.com (“the eBay business”). The wife estimated that she incurred $40,000 in debt to start the eBay business; the husband estimated that the wife incurred $100,000 in debt to start the business. The wife testified that she did not track the profitability of the eBay business. The wife also testified that in late 2008 the eBay business had “broke even.” However, the wife also testified that she had paid back $20,000 of the debt she had incurred in starting the business. The husband introduced evidence indicating that the eBay business qualified as a “power seller,” meaning that the eBay business had sales of at least $1,000 per month or listings of greater than a certain number of items per month. Other evidence showed that the wife had sold at least 600 items over a 13-month period through the eBay business. At one point the wife testified that she was planning to shut down the eBay business because, she claimed, the Internal Revenue Service (“the IRS”) and the Social Security Administration (“the SSA”) both would soon start considering selling on eBay a business; the wife claimed that she was not currently required to report any income from the eBay business to the IRS or to the SSA.

The husband is a partner in a law firm, from which he receives a substantial income. During the course of the parties’ marriage, the parties purchased interests in eight different rental properties (collectively referred to at times as “the rental properties”). The rental properties included a house on Dauphin Island, four other houses in the Mobile area, two small commercial office buildings, and a condominium in Tuscaloosa. According to both the husband and the parties’ tax returns, the expenses for the rental properties exceed the revenues generated from the rents received for the properties.

At the time of trial, the child was 18 years old and was about to begin college at the University of Alabama, where the parties’ older child is currently enrolled. The husband testified that he currently pays for all the older child’s college expenses and that he would pay all the child’s college expenses, including tuition, fees, books, room, board, and fraternity fees. The child began college in August 2009.

On April 9, 2009, the trial court entered a judgment divorcing the parties. In its judgment, the trial court awarded the wife all right, title, and interest in the marital home; the trial court ordered the husband to pay the mortgage debt on the martial home, which totaled $71,000. The trial court also awarded the wife all the furnishings in the marital home, a 2002 Chevrolet Suburban Sport-utility vehicle, all her interest in the trust account, the eBay business, and $1,000 per month in periodic alimony; the trial court made the wife responsible for the payment of credit-card debts totaling $90,000. The trial court awarded the husband all right, title, and interest in the rental properties and made the husband solely responsible for the debts on those properties. The trial court also awarded the husband a 2007 Acura automobile, a 1986 Chevrolet Corvette automobile and a Honda motorcycle. The trial court further made the husband responsible for approximately $30,000 in credit-card debt. The trial court awarded the wife custody of the child and ordered the husband to pay $700 per month in child support until the child started college in August 2009. At that time the husband’s child-support obligation would cease and the husband would be responsible for paying all the child’s college-related educational and living expenses. The trial court further ordered the husband to provide health insurance for the child and to be responsible for any noncovered medical expenses incurred by the child.

The wife subsequently filed a post-judgment motion for a new trial or, in the altexmative, to alter, amend, or vacate the judgment; the husband filed a post-judgment motion to alter, amend, or vacate the judgment. On July 14, 2009, the trial court denied the wife’s motion for a new trial and amended the judgment, adding a provision requiring the parties to split any costs associated with the pai'ties’ three dogs and a provision stating that the wife would be responsible for any tax liability associated with the eBay business. The wife subsequently appealed to this court.

Issues

The wife raises three issues on appeal: (1) whether the trial court erred in its allocation of mai'ital property and debt and in its detei-mination of alimony; (2) whether the trial court erred in its calculation of child support; and (3) whether the trial court erred when it terminated the husband’s child-support obligation when the child began college.

Standard, of Review

“The well-established standard of review is that a divorce judgment based on ore tenus evidence is presumed correct. See Robinson v. Robinson, 795 So.2d 729 (Ala.Civ.App.2001). Such a judgment will be reversed only where it is unsupported by the evidence so as to be plainly and palpably wrong. Id. at 733. On appeal the division of property and the award of alimony are interrelated, and the entire judgment must be considered in determining whether the trial court abused its disci-etion as to either issue. See O’Neal v. O’Neal, 678 So.2d 161 (Ala.Civ.App.1996). A property division does not have to be equal in order to be equitable based on the particular facts of each case; a determination of what is equitable rests within the sound discretion of the trial court. See Golden v. Golden, 681 So.2d 605 (Ala.Civ.App.1996).”

Baggett v. Baggett, 855 So.2d 556, 559 (Ala.Civ.App.2003).

Analysis

The wife first argues that the trial court erred in its determination of alimony and in its division of property and debt.

“An award of alimony and the division of marital property are considered together and are matters within the discretion of the trial court. Carter v. Carter, 934 So.2d 406 (Ala.Civ.App.2005) (citing Ex parte Durbin, 818 So.2d 404, 408 (Ala.2001)). Because those matters are interrelated, the entire judgment must be considered in determining whether the trial court exceeded its discretion as to either issue. See [Harmon v.] Harmon, [928 So.2d 295 (Ala.Civ.App.2005) ]. Furthermore, a property-division does not have to be equal, but it must be equitable, J.H.F. v. P.S.F., 835 So.2d 1024 (Ala.Civ.App.2002), and it must be ‘supported by the particular facts of the case,’ Ex parte Elliott, 782 So.2d 308, 311 (Ala.2000). The determination of what is equitable is a matter of discretion for the trial court. See Carter, supra.

Clements v. Clements, 990 So.2d 383, 390 (Ala.Civ.App.2007). The trial court should consider several factors when determining a party’s need for alimony and when dividing marital property, including “ ‘the length of the marriage, the age and health of the parties, the future employment prospects of the parties, the source, value, and type of property owned, and the standard of living to which the parties have become accustomed during the marriage.’ ” Ex parte Elliott, 782 So.2d 308, 311 (Ala.2000) (quoting Nowell v. Nowell, 474 So.2d 1128, 1129 (Ala.Civ.App.1985)).

In this case, the wife was awarded the marital home and the husband was required to pay the outstanding debt on the marital home; the marital home was valued at $301,000. The husband was awarded all his interest in eight rental properties and was required to pay any outstanding debts on those properties; the combined equity in the rental properties equaled $250,000. The husband was also awarded three vehicles with a combined estimated value of $37,000. The parties also had a significant amount of debt that they had accumulated during the marriage. The trial court obligated the husband to pay the first and second mortgages on the marital home along with a portion of the parties’ credit-card debt; the debt assigned to the husband totaled $101,000. The trial court ordered the wife to be responsible for a portion of the parties’ credit-card debt totaling $90,000, including debt allegedly incurred by the wife in the course of operating the eBay business. Thus, the property and debt awarded to each party is substantially equal.

The wife’s income consisted of $1,332 per month in disability payments from the SSA and $846 per month in payments from the Retirement Systems of Alabama. After the parties’ separation, the wife also received $750 to $1,000 per month from a family trust. According to the terms of the divorce judgment, the wife will receive $1,000 per month in alimony. Thus, the wife’s total income is between $3,928 and $4,178 per month. The wife’s expenses included $650 to $675 per month in noncov-ered medical expenses, $180 per month in psychological counseling, $2,550 in credit-card debt payments, and $380 per month in expenses for the parties’ three dogs. The wife would also be responsible for the payment of taxes, utilities, and maintenance on the marital home, which total approximately $850 per month. The total of the wife’s reported expenses is between $4,610 and $4,635 per month, which exceeds her reported income by as much as $707 per month.

However, the trial court also heard testimony from which it could have inferred that the wife had additional income from the eBay business. The wife’s testimony concerning the profitability of the business was conflicting. The wife claimed that she did not track whether she had made a profit from the business and also testified that she had only broken even. However, the wife also testified that she had paid back $20,000 of her initial investment in the business, testimony from which the trial court could have inferred that the wife had made a profit from the business.

The husband’s income consisted of approximately $14,583 per month in income from his law practice. The husband received rents from the various rental properties; however, according to the husband and the parties’ tax returns, the rental properties, in the aggregate, did not generate any income after expenses were deducted from the rents received. In fact, according to the parties’ tax returns, the expenses on the rental properties exceed the revenues generated by the rents. The husband’s reported monthly expenses consisted of $2,600 in credit-card debt payments, $900 in expenses for the child, $1,117 in expenses related to the apartment where the husband currently lives, $2,200 in payments on the first and second mortgages on the marital home, $2,202 in college expenses for the older child, $200 in automobile maintenance and repairs, $500 in automobile insurance premiums, and $2,000 in state and federal income-tax payments. The husband listed expenses for utilities and maintenance of the marital home; however, following the entry of the divorce judgment the wife would be responsible for those expenses. The husband also listed $1,661 in expenses relating to the Dauphin Island property; however, according to the evidence submitted by the husband, the Dauphin Island property rents for $1,600 per month. Thus, all except $61 of the expenses for the Dauphin Island property would be offset by the rent received. The husband anticipated that his monthly expenses would increase by an additional $550 when the child started college in August 2009, and the husband was also ordered to pay the wife $1,000 per month in alimony and will have to pay $380 per month as his half of the estimated expenses associated with the parties’ three dogs, bringing the husband’s total monthly expenses to $13,710 — $873 less than his monthly income. However, the trial court also had information in the form of the husband’s testimony and from the parties’ tax returns indicating that the husband had additional expenses related to the rental properties that resulted in the husband’s being unable to meet his monthly expenses each month without incurring additional debt.

It appears that both parties will have difficulties paying their monthly expenses after the divorce. From the testimony of the parties and the other evidence, the trial court could have determined that the husband was unable to pay additional alimony to the wife and that the wife, in fact, had an additional source of income in the form of the eBay business. This court has stated that “[njeither party can maintain his or her former status, which resulted from the combined incomes, now that those incomes must support two households.” Gates v. Gates, 830 So.2d 746, 750 (Ala.Civ.App.2002). Moreover, the division of marital property is substantially equal. Thus, we cannot say that the trial court’s division of marital property and its award of alimony was inequitable considering the facts of this case. See Vaughn v. Vaughn, 586 So.2d 218, 219 (Ala.Civ.App.1991) (“An award of property does not have to be equal, but it must be equitable based on the facts of each case.”).

The wife next argues that the trial court erred in its calculation of child support because, she argues, the award of $700 in child support was less than the amount she would have been awarded had the parties’ income not exceeded the maximum income listed in the table appended to Rule 32, Ala. R. Jud. Admin. When the gross adjusted income of the parties to a divorce exceeds the amount listed in the table appended to Rule 32, the trial court can exercise its discretion in establishing a child-support obligation. Rule 32(C)(1). “This court has held, however, that a trial court’s discretion is not unbridled and that the amount of child support awarded must relate to the reasonable and necessary needs of the children as well as to the ability of the obligor to pay for those needs.” Dyas v. Dyas, 683 So.2d 971, 973 (Ala.Civ.App.1995).

The husband testified that he provides the child with a pre-paid credit card with $700 in funds every month, in addition to paying for the child’s automobile insurance, maintenance, and gasoline. The mother testified that she had spent additional money in order to meet the child’s basic needs; however, she did not provide any evidence as to the amount that she had spent in excess of the $700 per month provided by the husband. Because the wife did not present any evidence as to the amounts above $700 required to provide for the child’s reasonable and necessary needs, the trial court did not have any basis on which to award additional child support. Washington v. Washington, 24 So.3d 1126, 1135 (Ala.Civ.App.2009). Therefore, we find no error on the part of the trial court in determining the husband’s child-support obligation.

Finally, the wife argues that the trial court erred when it terminated the husband’s child-support obligation when the child began college in August 2009 instead of when the child reached his 19th birthday, which occurred in November 2009. It appears from the wife’s testimony at trial that she only requested child support until the child began college in August 2009; that is what the trial court awarded her. The wife responded, “yes, sir,” when asked by her counsel: “Are you asking for child support between now and when [the child] goes to school?”

“The law is well settled that a party may not induce an error by the trial court and then attempt to win a reversal based on that error. ‘A party may not predicate an argument for reversal on “invited error,” that is, “error into which he has led or lulled the trial court.”’ Atkins v. Lee, 603 So.2d 937, 945 (Ala.1992) (quoting Dixie Highway Express, Inc. v. Southern Ry., 286 Ala. 646, 651, 244 So.2d 591, 595 (1971)). ‘That doctrine [of invited error] provides that a party may not complain of error into which he has led the court.’ Ex parte King, 643 So.2d 1364, 1366 (Ala.1993). ‘A party cannot win a reversal on an error that party has invited the trial court to commit.’ Neal v. Neal, 856 So.2d 766, 784 (Ala.2002).”

Mobile Infirmary Med. Ctr. v. Hodgen, 884 So.2d 801, 808 (Ala.2003). Because the wife testified that she only wanted child support until the child began college, if the trial court committed any error in terminating the husband’s child-support obligation at that time, it was in the nature of invited error and it cannot serve as the basis to win a reversal on appeal.

Moreover, the wife’s argument on this issue consists only of the following statement: “Finally, the [h]usband should have been required to pay the [w]ife child support until November 2009, when the [child] turned 19, not August 2009 when the [child] left for college.” Because the wife’s argument is not supported by any authority, it does not meet the requirements of Rule 28(a)(10), Ala. R.App. P., and we need not further consider it. See Asam v. Devereaux, 686 So.2d 1222, 1224 (Ala.Civ.App.1996) (“[A]ppellate courts do not, ‘based on undelineated propositions, create legal arguments for the appellant.’ McLemore v. Fleming, 604 So.2d 353, 353 (Ala.1992). This court will address only those issues properly presented and for which supporting authority has been cited.”).

Conclusion

Because the wife has not demonstrated any error by the trial court, the trial court’s judgment is due to be affirmed.

AFFIRMED.

BRYAN and MOORE, JJ., concur.

THOMPSON, P.J., concurs in the result in part and dissents in part, with writing.

PITTMAN, J., recuses himself.

THOMPSON, Presiding Judge,

concurring in the result in part and dissenting in part.

After reviewing the record on appeal, I believe that the trial court erred in reaching its property division and alimony award. It is well settled that a property division must be equitable, not equal. Golden v. Golden, 681 So.2d 605, 608 (Ala.Civ.App.1996); Parrish v. Parrish, 617 So.2d 1036, 1038 (Ala.Civ.App.1993); see also Kovakas v. Kovakas, 12 So.3d 693, 700 (Ala.Civ.App.2008) (a property division and alimony award must be equitable under the particular facts of the case). Further, in fashioning a property division and an award of alimony, the trial court must consider factors such as the earning capacities of the parties; their future prospects; their ages, health, and station in life; the length of the parties’ marriage; and the source, value, and type of marital property. Robinson v. Robinson, 795 So.2d 729, 734 (Ala.Civ.App.2001).

In this case, the record indicates that the parties married after the husband finished his first year of law school and that the wife worked and supported the couple during his last two years of law school. The parties were married for more than 25 years. The husband’s future earning prospects are significantly higher than those of the wife, who is disabled.

Given the facts of this case, I must respectfully dissent from the main opinion’s affirmance of the trial court’s property division and alimony award. I concur in the result with regard to the issue of child support.

      . One of the office buildings houses the husband's law firm.

      . The trial court also awarded the wife all the furnishings in the marital home, a 2002 Suburban, and her interest in her eBay business — items on which the parties did not place values.

      . The husband testified that although the Dauphin Island property was rented, the current renter was 2.5 months in arrears on the rent.

      . Neither the husband’s nor the wife's reported expenses included basic items such as food and clothing.

      . The child-support-obligation table appended to Rule 32 was amended, effective January 1, 2009, increasing the upper limit of the combined adjusted gross income listed in the table from $10,000 per month to $20,000 per month. The parties' income falls below the maximum amount listed in the amended table. The preface to Rule 32 provides that the amended rule applies to "all new actions filed or proceedings instituted on or after January 1, 2009. Any actions or proceedings instituted before January 1, 2009, shall be governed by Rule 32 as it read before January 1, 2009.” Because the husband filed his complaint for a divorce before January 1, 2009, Rule 32 as it read before January 1, 2009, applies to this case.


author: THOMAS, Judge.

text:
    Richard D. LIVELY v. Rodney KILGORE.
    2090188.
    Court of Civil Appeals of Alabama.
    June 11, 2010.

      Richard D. Lively, Prattville, for appellant.
    Braxton Blake Lowe of Alabama Attorneys, L.L.C., Gulf Shores, for appellee.
   THOMAS, Judge.

Richard D. Lively appeals from the Tal-lapoosa Circuit Court’s denial of his motion for a judgment as a matter of law (“JML”) in a legal-malpractice action brought pursuant to the Alabama Legal Services Liability Act (“ALSLA”), codified at Aa.Code 1975, § 6-5-570 et seq., arising from Lively’s representation of Rodney Kilgore in a medical-malpractice action.

In 1999, Kilgore sought treatment from Dr. Graham Howorth for pain in Kilgore’s neck and right arm and shoulder. After attempts at conservative care were unsuccessful, Dr. Howorth recommended surgery to excise one of the disks in Kilgore’s cervical spine. In order to perform the surgery, Kilgore had to be strapped down to the operating table with his shoulders and arms pulled back. Following the surgery, Kilgore complained of pain in his right shoulder, a pain that Kilgore described as more severe and unlike what he had experienced before the surgery. Kil-gore also testified that he was bruised across his chest and right shoulder following the surgery. According to Kilgore, Dr. Howorth explained to Kilgore that the bruising “possibly could have come from the way they had me in surgery.” Following the surgery, Kilgore also suffered from weakness, muscular atrophy, and loss of control of the right scapula, all allegedly from damage to Kilgore’s thoracic nerve.

Dr. Howorth referred Kilgore to Dr. Thomas Powell, who diagnosed Kilgore with a torn rotator cuff in his right shoulder. In May 2000, Dr. Powell performed surgery on Kilgore, repairing the torn ro-tator cuff. Dr. Shin Oh also evaluated Kilgore because of his continued complaints of pain, muscle weakness, and atrophy in his right shoulder and arm and the loss of control of his right scapula. Dr. Oh diagnosed Kilgore with right brachial plex-opathy, a nerve disorder, noting that the plexopathy “is likely not secondary to post-surgical damage but rather may be due to undergoing in the surgical process, not necessarily surgical injury to the upper trunk.” Kilgore continued to experience pain, muscle weakness, and atrophy of his right shoulder and arm and a loss of control of his right scapula; he testified that those issues can be partially managed but not resolved. According to Kilgore, he can no longer work and is receiving disability because of his injuries.

In March 2001, Kilgore met with Freeman Elam, an attorney, to discuss suing Dr. Howorth for medical malpractice. At that time, Elam was sharing office space with Lively. Elam and Lively agreed to jointly represent Kilgore in his medical-malpractice action against Dr. Howorth. Elam and Lively performed only minimal discovery in the case, failing to retain an expert medical witness or to depose necessary witnesses. In May 2003, the trial court in Kilgore’s medical-malpractice action entered a summary judgment in favor of Dr. Howorth. Kilgore then sued Elam and Lively for legal malpractice, requesting a jury trial.

In August 2009, the trial court conducted a jury trial on Kilgore’s legal-malpractice claim, at which Lively, Kilgore, and Charles R. Gillenwaters, an expert witness on the standard of care owed by Lively, testified. At the close of all the evidence, Lively moved the trial court for a JML, arguing that Kilgore had failed to offer legally sufficient evidence that demonstrated that he would have prevailed in the underlying medical-malpractice action; the trial court denied Lively’s motion. The jury returned a verdict in favor of Kilgore in the amount of $570,000. Lively subsequently filed a renewed motion for a JML or, in the alternative, a motion for a new trial or remittitur. The trial court denied Lively’s postjudgment motion, and Lively appealed to the Alabama Supreme Court. Our supreme court transferred this case to this court, pursuant to Ala.Code 1975, § 12-2-7(6).

Lively argues that the trial court erred when it denied his motion for a JML.

“In reviewing a trial court’s ruling on a motion for a judgment as a matter of law, we apply the same standard the trial court applied initially in granting or denying the motion. Palm Harbor Homes, Inc. v. Crawford, 689 So.2d 3 (Ala.1997). The nonmovant must present substantial evidence to withstand a motion for a judgment as a matter of law. Palm Harbor Homes; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). When reviewing a ruling on a motion for a judgment as a matter of law, this Court views the evidence in the light most favorable to the nonmovant, entertaining any reasonable inferences that the jury would have been free to draw. Carter v. Henderson, 598 So.2d 1350 (Ala.1992). This Court indulges no presumption of correctness as to the trial court’s rulings on questions of law. Ricwil, Inc. v. S.L. Pappas & Co., 599 So.2d 1126 (Ala.1992).”

Keibler-Thompson Corp. v. Steading, 907 So.2d 435, 440 (Ala.2005).

Kilgore alleges that Lively’s handling of Kilgore’s medical-malpractice action fell below the applicable' standard of care; thus, Kilgore alleges, it amounted to legal malpractice. The Alabama Supreme Court has held that

“ ‘[i]n a legal malpractice case a plaintiff must prove, basically, the same [elements] that must be proven in an ordinary negligence suit. Moseley v. Lewis & Brackin, 533 So.2d 513, 515 (Ala.1988); Tyree v. Hendrix, 480 So.2d 1176 (Ala.1985). Thus, the elements [a plaintiff] must prove in order to support his legal malpractice claim are a duty, a breach of that duty, an injury, that the breach was the proximate cause of the injury, and damages. Moseley, Tyree; and Herston v. Whitesell, 348 So.2d 1054 (Ala.1977). [Additionally,] [i]n a legal malpractice case, the plaintiff must show that but for the defendant’s negligence he would have recovered on the underlying cause of action, Johnson v. Horne, 500 So.2d 1024 (Ala.1986), or must offer proof that the outcome of the case would have been different. Hall v. Thomas, 456 So.2d 67 (Ala.1984).’ ”

Independent Stave Co. v. Bell, Richardson & Sparkman, P.A., 678 So.2d 770, 772 (Ala.1996) (quoting McDuffie v. Brinkley, Ford, Chestnut & Aldridge, 576 So.2d 198, 199-200 (Ala.1991)). The Alabama Supreme Court has further stated that in a legal-malpractice case the plaintiff has a “dual burden of proving both the underlying claim and the instant malpractice claim.” Morrison v. Franklin, 655 So.2d 964, 966-67 (Ala.1995). The underlying cause of action that gave rise to Kilgore’s legal-malpractice claim was a medical-malpractice action. Thus, in order to prevail on his legal-malpractice claim, Kilgore must show that Lively’s conduct fell below the standard of care for similarly situated legal providers, see § 6-5-580(1) of the ALSLA, and that, but for Lively’s negligence, Kilgore would have prevailed in his medical-malpractice action. Morrison, supra.

Lively argues that the trial court erred when it denied his motion for a JML because, Lively says, Kilgore failed to present legally sufficient evidence demonstrating that he would have prevailed in the underlying medical-malpractice action. Specifically, Lively argues that Kilgore failed to present expert medical testimony demonstrating a breach of the applicable standard of care or that a causal connection existed between Kilgore’s injuries and any act or omission of Dr. Howorth or of another party.

In medical-malpractice actions, “the plaintiff shall have the burden of proving by substantial evidence that the health care provider failed to exercise such reasonable care, skill, and diligence as other similarly situated health care providers in the same general line of practice ordinarily have and exercise in a like case.” Ala.Code 1975, § 6-5-548(a). “[T]he general rule in Alabama is that expert medical testimony is required to establish what is and what is not proper medical treatment and procedure.” Timmerman v. Fitts, 514 So.2d 907, 911 (Ala.1987). There are limited exceptions to this rule, as explained by our supreme court in Ex parte HealthSouth Corp., 851 So.2d 33 (Ala.2002).

“A narrow exception to th[e rule requiring plaintiffs to proffer expert testimony in medical-malpractice cases] exists ‘ “in a case where want of skill or lack of care is so apparent ... as to be understood by a layman, and requires only common knowledge and experience to understand it.” ’ Tuscaloosa Orthopedic Appliance Co. v. Wyatt, 460 So.2d 156, 161 (Ala.1984) (quoting Dimoff v. Maitre, 432 So.2d 1225, 1226-27 (Ala.1983), quoting in turn Lloyd Noland Found., Inc. v. Harris, 295 Ala. 63, 66, 322 So.2d 709, 711 (1975)). In Anderson [v. Alabama Reference Labs., 778 So.2d 806 (Ala.2000) ], this Court illustrated this exception by listing the following examples: 1) where a foreign object, such as a sponge, remains in a patient’s body after surgery; 2) where the injury is unrelated to the condition for which the plaintiff sought treatment; 3) where a plaintiff relies on an authoritative medical treatise to prove what is or is not proper; and 4) where the plaintiff himself or herself is a medical expert. Anderson, 778 So.2d at 811.
“A review of those examples reveals that only the first and second examples relate to that category of cases where want of skill or lack of care is so apparent as to be understood by a layperson, and ‘requires only common knowledge and experience to understand it.’ Wyatt, 460 So.2d at 161. Examples three and four have nothing to do with evidence within the common knowledge of the jury and therefore do not illustrate that category of cases. For this reason alone, reformulation of the statement of the exception to the general rule requiring expert testimony is warranted.
“Accordingly, we reformulate the exception to the rule ... to recognize first, a class of cases ‘ “where want of skill or lack of care is so apparent ... as to be understood by a layman, and requires only common knowledge and experience to understand it,’” Wyatt, 460 So.2d at 161 (quoting Dimoff v. Maitre, 432 So.2d 1225, 1226-27 (Ala.1983)), such as when a sponge is left in, where, for example, the wrong leg is operated on, or ... where a call for assistance is completely ignored for an unreasonable period of time. A second exception to the rule requiring expert testimony applies when a plaintiff relies on ‘ “ ‘a recognized standard or authoritative medical text or treatise,’ ” ’ Anderson, 778 So.2d at 811, or is himself or herself a qualified medical expert.”

851 So.2d at 38-39.

In addition to showing that the medical-service provider breached the standard of care, a plaintiff in a medical-malpractice action must show a causal connection between his or her injuries and some act or omission of the defendant. Expert testimony is also generally needed to show proximate cause.

“A plaintiff in a medical-malpractice action must also present expert testimony establishing a causal connection between the defendant’s act or omission constituting the alleged breach and the injury suffered by the plaintiff. Pruitt v. Zeiger, 590 So.2d 236, 238 (Ala.1991). See also Bradley v. Miller, 878 So.2d 262, 266 (Ala.2003); University of Alabama Health Servs. Found., P.C. v. Bush, 638 So.2d 794, 802 (Ala.1994); and Bradford v. McGee, 534 So.2d 1076, 1079 (Ala.1988). To prove causation in a medical-malpractice case, the plaintiff must demonstrate ‘ “that the alleged negligence probably caused, rather than only possibly caused, the plaintiffs injury.” ’ Bradley, 878 So.2d at 266 (quoting University of Alabama Health Sens., 638 So.2d at 802). See also DCH Healthcare Auth. v. Duckworth, 883 So.2d 1214, 1217 (Ala.2003) (‘“There must be more than the mere possibility that the negligence complained of caused the injury; rather, there must be evidence that the negligence complained of probably caused the injury.” ’ (quoting Parker v. Collins, 605 So.2d 824, 826 (Ala.1992))); and Pendarvis v. Pennington, 521 So.2d 969, 970 (Ala.1988) (‘ “The rule in medical malpractice cases is that to find liability, there must be more than a mere possibility or one possibility among others that the negligence complained of caused the injury; there must be evidence that the negligence probably caused the injury.” ’ (quoting Williams v. Bhoopathi, 474 So.2d 690, 691 (Ala.1985), and citing Baker v. Chastain, 389 So.2d 932 (Ala.1980))). In Cain v. Haworth, 877 So.2d 566 (Ala.2003), this Court stated:
“ ‘ “ ‘To present a jury question, the plaintiff [in a medical-malpractice action] must adduce some evidence indicating that the alleged negligence (the breach of the appropriate standard of care) probably caused the injury. A mere possibility is insufficient. The evidence produced by the plaintiff must have “selective application” to one theory of causation.’ ” ’

877 So.2d at 576 (quoting Rivard v. University of Alabama Health Servs. Found., P.C., 835 So.2d 987, 988 (Ala.2002)). However, the plaintiff in a medical-malpractice case is not required to present expert testimony to establish the element of proximate causation in cases where 'the issue of proximate cause is not ... “beyond the ken of the average layman.” ’ Golden v. Stein, 670 So.2d 904, 908 (Ala.1995). Therefore, ‘[u]nless “the cause and effect relationship between the breach of the standard of care and the subsequent complication or injury is so readily understood that a layperson can reliably determine the issue of causation,” causation in a medical-malpractice case must be established through expert testimony.’ DCH Healthcare Auth., 883 So.2d at 1217-18 (quoting Cain, 877 So.2d at 576).”

Sorrell v. King, 946 So.2d 854, 862-63 (Ala.2006).

In this case, Kilgore did not present any expert medical testimony in support of his allegations in the underlying medical-malpractice action. Kilgore alleged that he had suffered two injuries as a result of Dr. Howorth’s or some other party’s negligence during his surgery: a damaged thoracic nerve and a torn rotator cuff. Kilgore argues that the injuries he allegedly suffered during his surgery fall within the exception to the rule requiring expert medical testimony. However, even assuming that Kilgore was not required to present expert medical testimony to establish proximate cause, Kilgore still failed to meet his burden. Kilgore relies on information from his medical records from Dr. Oh. In those medical records, Dr. Oh states that Kilgore’s injuries “may be due to undergoing in the surgical process.” Kilgore explained that Dr. Oh “stated that the injuries, the way they did the surgery, that this could possibly happen.” Kilgore also stated that his shoulder pain was different than what he had experienced before the surgery and that his injuries “could have happened from the way I was strapped down.”

The evidence presented by Kil-gore shows only a possibility, not a probability, that his torn rotator cuff was caused by the method by which he was strapped down to the operating table or that the damage to his thoracic nerve was caused by any act or omission on the part of Dr. Howorth or another party. Evidence showing only a possibility of proximate cause is insufficient to show a causal connection between a defendant’s acts or omissions and a plaintiffs injuries. See Lyons v. Vaughan Reg’l Med. Ctr., LLC, 23 So.3d 23, 29 (Ala.2009) (testimony that the insertion and infiltration of a medical device was a “possible” cause of the plaintiffs injuries was insufficient to show proximate cause); Sorrell v. King, 946 So.2d 854, 865 (Ala.2006) (holding that a defendant’s testimony was insufficient to show proximate cause because the testimony demonstrated only a “mere possibility” that the defendant’s acts caused the plaintiffs injuries). Thus, Kilgore failed to provide sufficient evidence demonstrating that any acts or omissions of Dr. Howorth or another party proximately caused Kil-gore’s injuries. Because Kilgore failed to prove proximate cause in the underlying medical-malpractice action, Kilgore has also failed to meet his burden, in the instant legal-malpractice action, to prove that, but for Lively’s negligence, he would have prevailed in the underlying action. Independent Stave Co., 678 So.2d at 772.

Because Kilgoré failed to present legally sufficient evidence demonstrating that, but for Lively’s negligence, he would have prevailed in the underlying medical-malpractice action, the trial court’s denial of Lively’s motion for a JML is reversed and the cause is remanded for that court to enter a JML in favor of Lively on Kilgore’s legal-malpractice claim.

REVERSED AND REMANDED.

PITTMAN and BRYAN, JJ., concur.

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

      . Elam later entered into a settlement with Kilgore, and Kilgore dismissed his case against Elam.

      . Because we conclude that the trial court should have granted Lively’s motion for a JML, we pretermit discussion of Lively’s remaining arguments on appeal.


author: THOMPSON, Presiding Judge.

text:
    Tommy BANKS v. Bessie R. HALL.
    2090081.
    Court of Civil Appeals of Alabama.
    June 11, 2010.
    Henry L. Penick of H.L. Penick & Associates, P.C., Birmingham, for appellant.
    Submitted on appellant’s brief only.
   THOMPSON, Presiding Judge.

Tommy Banks and Bessie R. Hall were divorced pursuant to a May 19, 2009, judgment of the trial court after a 13-year common-law marriage. On June 18, 2009, Hall timely filed a postjudgment motion in which she sought to set aside the divorce judgment and requested a new hearing. In her postjudgment motion, Hall alleged that the trial court’s property division was inequitable, and she contended that the trial court had failed to address the disposition of a $7,000 check that she alleged was payable to both parties.

We note that the trial court’s failure to address the disposition of the $7,000 check does not affect the finality of the May 19, 2009, divorce judgment.

“A final judgment of divorce does not necessarily have to dispose of all the parties’ jointly owned property. See Fitts v. Stokes, 841 So.2d 229 (Ala.2002); Garrett v. Garrett, 521 So.2d 1337 (Ala.Civ.App.1988); and Hammock v. Hammock, 867 So.2d 355 (Ala.Civ.App.2003). Rather, when a final judgment of divorce does not reference a specific asset, liability, or piece of personal or real property, jointly owned by the parties, the property remains unaffected by the judgment, and the ownership, along with the benefits and burdens thereof, remains as it was before the entry of the divorce judgment. Radiola v. Radiola, 380 So.2d 817 (Ala.1980); Miller v. Miller, 391 So.2d 119 (Ala.Civ.App.1980); and McGuire v. Horton, 586 So.2d 9 (Ala.Civ.App.1991).”

Clements v. Clements, 990 So.2d 383, 395-96 (Ala.Civ.App.2007); see also Hocutt v. Hocutt, 491 So.2d 247, 249 (Ala.Civ.App.1986) (same).

Hall’s June 18, 2009, postjudgment motion was deemed denied by operation of law on September 16, 2009. See Rule 59.1, Ala. R. Civ. P. (providing that a post-judgment motion may not remain pending for more than 90 days). However, on October 15, 2009, the trial court entered an order in which it purported to deny Hall’s motion to set aside the divorce judgment. In its October 15, 2009, order, the trial court also purported to divide the proceeds of the $7,000 check equally between the parties and to require Banks to pay Hall a $2,000 attorney fee.

Banks timely appealed from the October 15, 2009, order purporting to grant Hall’s postjudgment motion. Banks argues that the trial court lacked jurisdiction to enter the October 15, 2009, order. We agree.

A trial court is without jurisdiction to rule on a postjudgment motion more than 90 days after the date the motion was filed, unless the record contains an express agreement of the parties to extend the time in which the trial court may rule on the pending postjudgment motion. Carter v. Hilliard, 838 So.2d 1062, 1063-64 (Ala.Civ.App.2002); see also Green v. Georgia-Pacific Corp., 906 So.2d 961, 962 (Ala.Civ.App.2005) (“A trial court loses jurisdiction to rule on a post-judgment motion 90 days after the filing of that motion.”). In this case, the record contains no indication the parties agreed, pursuant to Rule 59.1, Ala. R. Civ. P., to extend the time for ruling on Hall’s post-judgment motion. Accordingly, the trial court lacked jurisdiction to enter any order more than 90 days after June 18, 2009, the date on which Hall filed her postjudgment motion; in other words, the trial court lacked jurisdiction to rule on that motion after September 16, 2009. Id.) see also Moragne v. Moragne, 888 So.2d 1280, 1282 (Ala.Civ.App.2004) (an order entered after expiration of the 90 days allowed for ruling on a postjudgment motion is a nullity).

The October 15, 2009, order is void for want of jurisdiction, and, therefore, it will not support an appeal. Roden v. Roden, 937 So.2d 83, 86 (Ala.Civ.App.2006) (holding that the trial court lacked jurisdiction to enter an order more than 90 days after the filing of a postjudgment motion). Accordingly, we dismiss this appeal and direct the trial court to vacate its October 15, 2009, order. Roden v. Roden, supra; see also Carter v. Hilliard, supra.

APPEAL DISMISSED.

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

      . We also note that the trial court could not. ex mero motu, modify the property division more than 30 days after the entry of the divorce judgment. "Property settlements between the parties to a divorce action are not subject to modification after the expiration of thirty days.” Hocutt v. Hocutt, 491 So.2d at 248; see also McGiboney v. McGiboney, 679 So.2d 1066, 1068 (Ala.Civ.App.1995) ("Property settlement provisions of a final judgment of divorce become final and cannot be modified after thirty days from the date of the judgment.”).


text:
    Justina B. FULLER v. Christopher Michael FULLER.
    2081161.
    Court of Civil Appeals of Alabama.
    June 11, 2010.

      Glenn Carlyle Noe, Vernon, for appellant.
    Tim R. Wadsworth, Sulligent, for appel-lee.
   THOMAS, Judge.

Justina B. Fuller (“the mother”) appeals from a judgment of the Lamar Circuit Court divorcing her from Christopher Michael Fuller (“the father”) and awarding him primary physical custody of the parties’ two children (“the children”).

This is the second time these parties have been before this court. See Fuller v. Fuller, 991 So.2d 285 (Ala.Civ.App.2008). In November 2006, the father filed a complaint for a divorce in the trial court. Fuller, 991 So.2d at 286. The father later moved for, and the trial court granted him, a default judgment against the mother. Id. The trial court’s default judgment, among other things, awarded the father “full-time” custody of the children. Id. at 287-88. The mother moved the trial court pursuant to Rule 55(c), Ala. R. Civ. P., to set aside the default judgment; the trial court denied the mother’s motion. Id. at 287. The mother appealed to this court. Id. On March 21, 2008, we reversed the trial court’s denial of the mother’s motion to set aside the default judgment and remanded the cause for further proceedings. Id. at 292. Thereafter, that case was dismissed by agreement of the parties.

On August 15, 2008, the father again filed a complaint for a divorce in the trial court, alleging, among other things, that the mother was unfit to have custody of the children. The mother counterclaimed, alleging that she was the proper party to have custody of the children. Following a hearing, at which it heard ore tenus evidence, the trial court entered a judgment divorcing the parties, awarding the father primary physical custody of the children, and ordering the mother to pay child support. The mother filed a postjudgment motion, pursuant to Rule 59(e), Ala. R.Civ. P. On July 8, 2009, the trial court held a hearing on the mother’s postjudgment motion, and, at the conclusion of the hearing, the trial-court judge stated on the record that he was denying the mother’s post-judgment motion. The denial of the mother’s motion was entered in the State Judicial Information System that same day. The mother did not appeal the trial court’s judgment within 42 days of the entry of the denial of her postjudgment motion, as required by Rule 4(a)(1), Ala. R.App. P.

On September 11, 2009, the mother moved the trial court pursuant to Rule 77(d), Ala. R. Civ. P., to extend the time for her to file an appeal, alleging that the clerk’s office had failed to notify her of the entry of the trial court’s order denying her postjudgment motion; the father did not oppose the mother’s motion. The trial court granted the mother’s Rule 77(d) motion, and the mother appealed to this court.

The father argues that the trial court erred when it granted the mother’s Rule 77(d) motion because, the father asserts, the mother did not demonstrate the existence of excusable neglect. However, the father did not oppose the mother’s Rule 77(d) motion in the trial court; therefore, the father has waived any argument on appeal concerning the merits of the trial court’s order granting the mother’s Rule 77(d) motion. See Ex parte S.W.T., 782 So.2d 766, 767 (Ala.2000) (holding that a party’s “failure to oppose the trial court’s order extending the time for appeal precludes appellate review of the merits of that order”). Because the father has waived any argument that the trial court erred in granting the mother’s Rule 77(d) motion, and because the mother filed her appeal within the extended time allowed under the trial court’s order, the mother’s appeal was timely filed.

The mother argues that the trial court erred when it granted physical custody of the children to the father because, she asserts, the evidence was insufficient to support the trial court’s judgment. However, first we must determine whether the trial court had subject-matter jurisdiction to determine the custody of the children. Although neither party has raised the issue of the trial court’s subject-matter jurisdiction, “jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.” Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987)

The Uniform Child Custody Jurisdiction and Enforcement Act (“the UCCJEA”), codified at Ala.Code 1975, § 80-8B-101 et seq., prescribes the requirements that must be met for a trial court to have subject-matter jurisdiction over a child-custody determination. Section 30-3B-201 of the UCCJEA provides:

“(a) Except as otherwise provided in Section 30-3B-204, a court of this state has jurisdiction to make an initial child custody determination only if:
“(1) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;
“(2) A court of another state does not have jurisdiction under subdivision (1), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under Section 30-3B-207 or 30-3B-208, and:
“a. The child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and
“b. Substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships;
“(3) All courts having jurisdiction under subdivision (1) or (2) have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under Section S0-3B-207 or 30-3B-208; or
“(4) No court of any other state would have jurisdiction under the criteria specified in subdivision (1), (2), or (3).
“(b) Subsection (a) is the exclusive jurisdictional basis for making a child custody determination by a court of this state.
“(c) Physical presence of a child is not necessary or sufficient to make a child custody determination.”

When an initial custody determination has been made by a court of another state, § 30-3B-203 of the UCCJEA establishes when an Alabama court has jurisdiction to modify that custody order. Section 30-3B-203 provides:

“Except as otherwise provided in Section 30-3B-204, a court of this state may not modify a child custody determination made by a court of another state unless a court of this state has jurisdiction to make an initial determination under Section 30-3B-201(a)(l) or (2) and:
“(1) The court of the other state determines it no longer has continuing, exclusive jurisdiction unfler Section 30-3B-202 or that a court of this state would be a more convenient forum under Section 30-3B-207; or
“(2) A court of this state or a court of the other state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in the other state.”

At the hearing, the mother testified that the children had lived with her in Mississippi from November 2006 until July 2007; the father testified that the mother took the children with her to Mississippi when the parties separated in November 2006. According to the mother, the parties then alternated custody of the children from August 2007 until November 2007 based on a custody order entered by a Mississippi court. Later in the hearing, the father’s attorney stated that “[a]t some point after the default judgment over here in [2007], [the parties] initiated a [domestic-relations] case in Mississippi.” The father’s attorney could not provide any further information to the trial court regarding the Mississippi action. This court requested that the parties provide letter briefs concerning the nature of the Mississippi action and its relation to the instant divorce case.

According to the parties’ letter briefs, it appears that on June 14, 2007, while the default judgment was pending on appeal, the father filed a petition for a writ of habeas corpus in Mississippi, where the mother resides, alleging that the mother was in contempt of the default judgment because, the father alleged, the mother was illegally detaining the parties’ children. The Mississippi court purportedly entered an order giving full faith and credit to the default judgment and, in July 2007, it purportedly entered an order awarding custody of the children to the father Monday through Thursday of each week and to the mother the remaining days of the week; this custody arrangement differed from what was ordered in the default judgment. In the order it purportedly entered in July 2007, the Mississippi court also ordered that neither party was obligated to pay child support.

The parties dispute whether the Mississippi court took any further action regarding the custody of the children. The mother contends that the matter is still pending before the Mississippi court. The father contends that the Mississippi court determined that it had no jurisdiction to enter any further orders; however, according to the father, the Mississippi court left its July 2007 order in place. Both the mother and the father attached exhibits to their briefs containing materials that are presumably from the Mississippi action. However, it is a well settled rule of law that “[e]vidence or assertions of fact contained in the briefs of the parties, but not included in the record presented on appeal, may not be considered by this court.” Palmer v. Bentley, 634 So.2d 559, 560 (Ala.Civ.App.1994).

If, as the mother contends, the Mississippi action remains pending, then it raises the possibility that simultaneous custody proceedings exist. When simultaneous custody proceedings exist, § 30-3B-206 provides:

“(a) Except as otherwise provided in Section 30-3B-204, a court of this state may not exercise its jurisdiction under this article if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with this chapter, unless the proceeding has been terminated or is stayed by the court of the other state because a court of this state is a more convenient forum under Section 30-3B-207.
“(b) Except as otherwise provided in Section 30-3B-204, a court of this state, before hearing a child custody proceeding, shall examine the court documents and other information supplied by the parties pursuant to Section 30-3B-209. If the court determines that a child custody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with this chapter, the court of this state shall stay its proceeding and communicate with the court of the other state. If the court of the state having jurisdiction substantially in accordance with this chapter does not determine that the court of this state is a more appropriate forum, the court of this state shall dismiss the proceeding.”

From the appellate record before this court, we cannot determine the extent of the Mississippi action or the effect of that action, if any, on the subject-matter jurisdiction of the trial court to make a custody determination regarding the children. The information in the record raises the questions whether, upon the reversal of the default divorce judgment and the subsequent dismissal of the previous divorce action, the July 2007 order of the Mississippi court became the initial custody determination under the UCCJEA and/or whether the Mississippi case represents a simultaneous custody proceeding and, if so, whether that proceeding is “substantially in conformity” with the UCCJEA.

We express no opinion on these questions; rather, because the record on appeal is insufficient to determine whether the trial court had subject-matter jurisdiction, the trial court is the more appropriate forum to make an initial determination whether it has the requisite subject-matter jurisdiction under the UCCJEA to determine the custody of the parties’ children. Therefore, we reverse the trial court’s judgment insofar as it awarded custody of the children, and we remand the cause for that court to determine whether it has subject-matter jurisdiction under the UC-CJEA.

The trial court’s judgment also divorced the parties and dissolved the marriage. At the time the father filed his complaint, the mother was a resident of Mississippi. Alabama Code 1975, § 30-2-5, provides that when the defendant to a divorce action is a nonresident of this state, “the other party to the marriage must have been a bona fide resident of this state for six months next before the filing of the complaint, which must be alleged in the complaint and proved.” The plaintiff in this case, the father, alleged in his complaint for a divorce that he had been a bona fide resident of this state for more than six months before he filed his complaint. Neither of the parties raised any issue in the trial court or on appeal questioning the residency of the father. Thus, the trial court had jurisdiction to divorce the parties, and the part of its judgment dissolving the marriage is due to be affirmed.

Conclusion

We affirm the trial court’s judgment insofar as it divorces the parties. Because the record raises the question whether the trial court had subject-matter jurisdiction under the UCCJEA and because this court cannot determine the answer to that question without further development of the record on appeal, we reverse the judgment of the trial court insofar as it determined custody of- the children and remand the cause to that court for it to conduct a hearing and to determine whether it has subject-matter jurisdiction under the UC-CJEA.

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

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

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

      . The mother and the father stated that there were no issues to be decided by the trial court other than the dissolution of their marriage and the custody of the children.

      . Rule 58(c), Ala. R.Civ. P., provides, in part, that "[a]n order or a judgment shall be deemed 'entered' within the meaning of these Rules and the Rules of Appellate Procedure as of the actual date of the input of the order or judgment into the State Judicial Information System.”

      .Rule 77(d), Ala. R.Civ. P., provides, in part: "Lack of notice of the entry by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except that upon a showing of excusable neglect based on a failure of the party to learn of the entry of the judgment or order the circuit court in any action may extend the time for appeal not exceeding thirty (30) days from the expiration of the original time now provided for appeals in civil actions.”